Anaya Nolan
The citation of unpublished opinions in law review articles is a complex issue with varying rules and regulations across different courts. While Federal Rule of Appellate Procedure 32.1 permits the citation of unpublished federal court opinions, specific court rules govern the citation of unpublished cases, with courts having the discretion to designate opinions as unpublished if they do not introduce novel legal concepts. The Bluebook provides comprehensive guidelines for citing unpublished cases, including those available electronically or as slip opinions, and certain courts, such as the Sixth Circuit, allow for the citation of any unpublished opinion. However, other courts, like the Michigan Supreme Court and Court of Appeals, have more restrictive rules, requiring parties to explain the relevance of citing unpublished opinions and provide copies to the court and opposing parties.
| Characteristics | Values |
|---|---|
| Court rules | Varying rules and regulations regarding the acceptability of citations to unpublished opinions |
| Federal Rule of Appellate Procedure 32.1 | A court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or any other reason |
| Scope of Federal Rule of Appellate Procedure 32.1 | Only unpublished opinions issued on or after January 1, 2007 |
| Illinois Supreme Court Rule 23 | Allows unpublished orders to be cited for persuasive purposes |
| Citation limitation | Explicit instructions on when the case can and cannot be cited |
| Unreported cases | Not published in a hard copy reporter series |
| Designation of cases as "unpublished" | Do not add anything new to the respective body of law |
| Published cases | Mandatory authority for the court and the lower courts in its jurisdiction |
| Unpublished cases | Not a binding authority, but can be used as a persuasive authority |
| Sixth Circuit | Permits citation of any unpublished opinion, order, judgment, or other written disposition |
| Michigan Supreme Court and Court of Appeals | More restrictive rules on citing unpublished opinions |
| MCR 7.215(C) | Unpublished opinions should not be cited for propositions of law for which there is published authority |
| MCR 7.215(B) | An opinion "must be published" if it meets certain criteria, such as establishing a new rule of law, construing a constitutional provision, or involving a legal issue of significant public interest |
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What You'll Learn
The Bluebook and Federal Rules on citing unpublished opinions
The Bluebook and Federal Rules provide guidance on citing unpublished opinions or cases, which are typically designated as such when they do not add anything new to the body of law.
The Bluebook
The Bluebook offers guidelines on citing unpublished or unreported cases, with examples provided in Rule 10 (R10), specifically R10.8.1, pp. 95-96, and R10.8.1(b), p. 113. It distinguishes between two types of sources for unpublished cases: those available on widely-used electronic databases and those available as slip opinions.
For cases found on electronic databases like Westlaw, Lexis, or Bloomberg Law, the following elements are required: the name of the case (underlined, italicized, or abbreviated), docket number, database identifier, court name, and full date of the most recent major disposition. If the database uses unique codes or numbers, these must be included, along with screen or page numbers (preceded by an asterisk) and paragraph numbers (if assigned).
For cases available as slip opinions, the citation includes the docket number, court, and full date of the most recent disposition.
Federal Rules
Federal Rule of Appellate Procedure 32.1 allows the citation of unpublished opinions of federal courts for persuasive value or any other reason. This rule applies to opinions issued on or after January 1, 2007, while opinions issued before that date are governed by local circuit rules.
In Illinois, the amendment to Supreme Court Rule 23, effective January 1, 2021, permits the citation of unpublished orders for persuasive purposes.
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Local rules on citing unpublished opinions
The rules for citing unpublished opinions vary depending on the court and jurisdiction. In general, unpublished opinions are those that have not been designated for publication by a court and are not published in a reporter or hard copy series. However, they may still be available in electronic databases or as slip opinions.
The Bluebook, a uniform system of legal citation, provides guidelines for citing unpublished or unreported cases. Rule 10.8.1 describes how to cite an unpublished case, and it applies to cases available in widely used electronic databases or as slip opinions. When citing an unpublished case from a database, the following information should be included: the name of the case (underlined, italicized, or abbreviated), docket number, database identifier, court name, and full date of the most recent major disposition of the case. If the case is only available as a slip opinion, the citation is the same but without the database identifier.
Federal Rule of Appellate Procedure 32.1 allows the citation of unpublished opinions of federal courts, regardless of when they were issued. However, it does not specify when a court may designate an opinion as "unpublished" or the procedure for doing so. This rule also does not dictate the effect that a court must give to unpublished opinions. While Rule 32.1 allows the citation of unpublished opinions, local circuit rules may impose restrictions on their use for persuasive value.
Local rules may vary, but as an example, in Illinois, the Supreme Court initially allowed reviewing courts to issue decisions as unpublished orders if they were not precedential. However, an amendment to Rule 23, effective from January 1, 2021, now permits these unpublished orders to be cited for persuasive purposes.
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Citing unpublished opinions in Illinois
The rules and regulations regarding the citation of unpublished opinions vary across different courts. In the US, Federal Rule of Appellate Procedure 32.1 states that a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or any other reason. This rule applies to unpublished opinions issued on or after January 1, 2007.
In Illinois, the rules regarding citing unpublished opinions have undergone changes in recent years. The Illinois Supreme Court Rule 23 previously allowed reviewing courts in the state to issue decisions as unpublished orders if the ruling did not establish law and was therefore not precedential. However, an amendment to Rule 23 took effect on January 1, 2021, which now allows these unpublished orders to be cited for persuasive purposes. This amendment was advocated for by several bar groups and legal professionals, who argued that the previous restriction on citing unpublished opinions limited the body of available law.
It is important to note that the amended Rule 23 applies only to orders issued after January 1, 2021, and does not include summary orders under Rule 23(c). Additionally, when citing unpublished orders for persuasive purposes, practitioners must provide a copy of the cited order to all other counsel and the court.
When citing unpublished opinions in Illinois, it is essential to follow the guidelines provided in the Bluebook. The Bluebook describes how to cite unpublished or unreported cases, and there are specific rules for different scenarios. For example, if an unpublished case is available on a widely used electronic database, the citation should include the case name, docket number, database identifier, court name, and full date of the most recent major disposition of the case. On the other hand, if an unpublished case is not available in an electronic database and only accessible as a slip opinion, the citation would be similar but without the database identifier.
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Citing unpublished opinions in Michigan
The rules and regulations regarding the citation of unpublished opinions vary across different courts. In the context of Michigan, Rule 7.215 outlines the process for opinions, orders, judgments, and the final process for the Court of Appeals.
An opinion must be written and bear the writer's name or the label "per curiam" or "memorandum" opinion. A per curiam opinion will not be published unless a judge directs the reporter to do so when it is filed with the clerk. An opinion not designated for publication is deemed "unpublished."
In Michigan, a request for an unpublished opinion to be published must be filed within 21 days of its release. After the expiration of the time provided for any response to this request, the clerk will submit the request to the panel that filed the opinion. The opinion will only be published if the panel unanimously directs it to be.
When citing unpublished opinions, it is important to follow the Bluebook guidelines. Rule 10.8.1 describes how to cite an unpublished case, and there are examples provided. If an unpublished case is available on a widely used electronic database, it may be cited in that database. The citation should include the case name, docket number, database identifier, court name, and full date of the most recent major disposition of the case.
Additionally, Federal Rule of Appellate Procedure 32.1 states that a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or any other reason. This rule applies to unpublished opinions issued on or after January 1, 2007.
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How to cite unpublished opinions in law school papers
The rules and regulations regarding the citation of unpublished opinions in law school papers vary across different courts. However, here are some general guidelines and examples to help you understand how to cite unpublished opinions:
Understanding Unpublished Opinions and Their Citation:
Unpublished opinions are designated as such by courts when they do not contribute anything new to the existing body of law. These opinions are typically not released to the public and are considered unpublished unless explicitly labeled otherwise. Federal Rule of Appellate Procedure 32.1 permits the citation of unpublished opinions of federal courts for persuasive value, as long as they were issued on or after January 1, 2007.
Citing Unpublished Cases:
The Bluebook provides guidelines for citing unpublished or unreported cases, with examples in Rule 10 (R10) and Rule 10.8.1 (R10.8.1). There are two primary sources for unpublished cases:
- Widely available electronic databases like Westlaw, Lexis, and Bloomberg Law.
- Cases available as slip opinions before they are added to a reporter.
Citation Format for Electronic Databases:
When citing an unpublished case from an electronic database, include the following elements:
- Name of the case (underlined, italicized, or abbreviated according to Rule 10.2). For example, United States v. Bennett.
- Case docket number and database identifier, such as "No. 05-CR-6050 CJS, 2005 WL 2709572 (W.D.N.Y. Oct. 21, 2005)".
- Provide the court name and the full date of the most recent major disposition of the case.
- Include any unique codes or numbers assigned by the database, such as Westlaw (WL), Lexis (LEXIS), or Bloomberg Law (BL).
- If applicable, precede screen or page numbers with an asterisk and paragraph numbers with a paragraph symbol.
Citation Format for Slip Opinions:
When citing an unpublished case from a slip opinion, include the following elements:
- Case docket number, such as "No. 77 Civ. 1782".
- Court and the full date of the most recent disposition of the case, for example, "(S.D.N.Y. Dec. 30, 1977)".
Court-Specific Rules:
Some courts have specific rules regarding the citation of unpublished opinions. For instance, the Sixth Circuit permits the citation of any unpublished opinion, but if it is not available in a publicly accessible database, a copy must be filed and served along with the brief or paper in which it is cited. The Michigan Supreme Court and Court of Appeals have a more restrictive approach, where unpublished opinions should not be cited if there is published authority on the same proposition of law.
It is important to consult the specific rules and guidelines of the court you are dealing with to ensure proper citation of unpublished opinions in your law school papers.
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Frequently asked questions
Yes, you can cite unpublished opinions in law review articles, but the rules vary depending on the court and jurisdiction. The Bluebook provides guidelines on how to cite unpublished cases, and courts have different rules and regulations regarding the acceptability of citations.
A published case is a mandatory authority for the court and lower courts in its jurisdiction, whereas an unpublished case is not a binding authority but may be used as persuasive authority.
An unpublished case will have a notice stating that it is "not for publication." It will also lack a reporter citation, but instead have a unique identifier provided by databases like Westlaw and Lexis.
The Bluebook provides guidelines for citing unpublished cases in Rule 10.8.1 and Rule B10.1.4. The citation should include the case name, docket number, database identifier, court name, and full date of the most recent major disposition of the case.
Yes, some courts have specific rules regarding the citation of unpublished opinions. For example, the Michigan Supreme Court and Court of Appeals caution that unpublished opinions should not be cited if there is published authority on the same proposition of law. Always check the specific rules of your jurisdiction.
