Unpublished Opinions and No Citation Rules in the Trial Courts

The no-citation rule for unpublished appellate decisions may invite violation, subterfuge, and, occasionally, outright defiance. This Article explores the problem of the cookies “locked” in the jar and proposes a rule that would give uniformity to citation within jurisdictions and would “unlock” the cookie jar when justice demands. Part I reviews the national trends in the increasing use of unpublished opinions and limitations imposed by no-citation rules. Part II addresses the ethical, professional and constitutional conflicts created by no-citation rules. Part III examines trial court reliance on unpublished opinions, including disposition of cases in which that reliance has been an issue on appeal. And, Part IV proposes a series of formal rules governing the use of unpublished opinions at the trial court level and for interlocutory appellate review in significant cases.