I believe Judge Kozinski in the 9th Circuit has published extensive comments in opposition to the "everything should be citable" theory. Eugene Volokh has either referenced or linked to his arguments. I'm not so sure I agree.

As I recall, the general thrust was that judges should be able to employ varying levels of diligence in their opinion writing, and that the availability of an "unpublished opinion" option promotes greater speed, efficiency, and explanations of reasoning than most litigants would be likely to receive in a "cite everything" world. While I'm at least somewhat sympathetic to that argument, it is extremely frustrating and altogether too common to find multiple opinions directly on point and dispositive on an issue, only to discover that they all reside solely on Westlaw or in the Federal Appendix.

Sour grapes? Maybe a little. But in my experience, restricting citation also has a tendency to encourage the ridiculous claim or defense, and to prolong combat unnecessarily in the real world of litigation. The prototypical "unpublished" opinion falls into one of two categories -- either it involves anextremely fact-intensive determination and is thus subject to substantial judicial discretion, or it relates to a claim or defense that can and should be dealt with summarily in the judge's view.

I have less problem restricting citation in the "fact-intensive" category, although it's implicitly condescending to our judges (primarily trial judges), in that it suggests they aren't capable of figuring out whether a given fact pattern and outcome is analogous to the issue before them. I really doubt we should restrict citation of the "easy case" opinions, though, and we need at least to consider the hidden costs associated with denying courts access to this material. I've seen far too many ridiculous positions survive longer than they should have because a judge was reluctant to grant dispositive relief in the absence of a directly analogous case -- when that case is available in "unpublished" form, it's even more irritating.

But it's more than just disposing of bad arguments early -- the ability to cite to "unpublished" opinions could also prevent the bad argument from being made in the first place -- I've seen at least a half-dozen arguments where I know or suspect that my opponent was aware of the great weight of (unpublished) authority against him and made the argument anyway.

Kozinski's arguments have weight, and it's probably a balancing act to figure out who's right. That said, we at least need to consider the costs attendant with restricting citation in some systematic way.