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Harms of Non-Precedential Opinions - Appellate Practice News

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Appellate Practice News


Posted on: Mar 12, 2015

By Joel M. Schumm, IU Robert H. McKinney School of Law

This blog post by Professor David Cleveland explains many of the harms of federal courts issuing non-precedential opinions. These harms include a lack of precedent and attendant difficulties with inconsistent or non-existent binding circuit precedents on some issues, a lack of certainty for those seeking to conform their conduct, the potential for conflicting published and unpublished opinions, the evasion of Supreme Court review and “an invitation to poor reasoning or even strategic, result-based reasoning.”

Unpublished federal opinions issued after January 1, 2007, may be cited as persuasive authority, but memorandum (unpublished) decisions from the Indiana Court of Appeals are not citable. Nevertheless, many of Professor Cleveland’s concerns apply to the Indiana Court of Appeals’ issuance of non-precedential (and non-citable) opinions. The IndyBar proposed a rule change last year, which was posted for public comment to the Rules Committee but ultimately not adopted by the Indiana Supreme Court. You can read more on this topic on the Indiana Law Blog here.

This post was written by Joel M. Schumm of the IU Robert H. McKinney School of Law. If you would like to submit content or write an article for the Appellate Practice Section page, please email Rachel Beachy at rbeachy@indybar.org.

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