In Anastasoff v. United States, a three-judge panel of the United States Court of Appeals for the Eighth Circuit recently invalidated the court's local rule of appellate procedure providing that "unpublished opinions are not precedent and parties generally should not cite them." Eighth Circuit Judge Richard S. Arnold authored the opinion, holding that this local requirement violates Article ill of the United States Constitution. Regardless of whether the provocative decision in Anastasoff is constitutionally sound, the opinion trenchantly emphasizes the critical significance of a public policy issue that has remained essentially untreated for too long.
The three-judge panel, thus, threw down the constitutional gauntlet by invalidating the Eighth Circuit local rule while most other appellate courts continue to enforce analogous provisions. Evaluating the threat to the delivery of appellate justice posed by these local requirements as discussed in the Anastasoff opinion, however, is more important. This Comment also seeks to explore the most promising solutions to that pressing legal and public policy problem.
Part I of this Comment, therefore, traces the problem of a historical growth in caseloads without a corresponding rise in resources as addressed by the Eighth Circuit decision. Part II evaluates the Anastasoff holding and its implications. Increasing appeals, scarce resources, and the restrictions imposed by procedures like the Eighth Circuit local rule may well jeopardize modern appellate justice, as Judge Arnold's opinion eloquently demonstrates. Part Ill then presents recommendations for addressing this situation. It analyzes remedies that might solve or at least ameliorate these problems at the appellate level, principally through reductions in the volume of cases that attorneys and parties consider filing and, should this possibility prove deficient, measures that would respond directly to those appeals actually pursued in a prompt, inexpensive, and fair manner.
Carl Tobias, Anastasoff, Unpublished Opinions, and Federal Appellate Justice, 25 Harv. J.L. & Pub. Pol'y 1171 (2002)