I predict that when this rule goes into effect we will see some courts, especially the ones that ban citations to unpublished opinions outright, begin to decide cases with one-line affirmances. Judges use unpublished opinions to reach compromise positions and will feel they don't have the time to put the effort into making law in every case.

Another useful article on this topic is by my colleague at the University of St. Thomas, Patrick Schiltz. The article is The Citation of Unpublished Opinions in the Federal Courts of Appeals, which was published by Fordham Law Review and is available on SSRN.

Pat was the Reporter for the Advisory Committee on this issue. The abstract for the article contains the following description of it:

“In this article, the author (who serves as Reporter to the Advisory Committee) briefly describes the background events leading to the publication of the proposed rule, summarizes the arguments that commentators have made for and against it, and describes the findings of new studies that explore whether any of these arguments are supported or refuted by empirical evidence. The author concludes by describing the evolution of his thinking about Rule 32.1. The author began as an opponent of the rule, but, for reasons he describes, eventually became convinced that the rule should be approved.”

Pat has recently been nominated to serve as a Federal District Court judge for Minnesota.

My sense is that the unpublished opinions debate would provide good fodder for someone looking to do some "scholarship on scholarship." A complete bibliography of law review notes and articles on unpublished opinions written in the last five years alone would probably run to over fifty. (My own modest and early contribution, which has among its primary virtues that of being only sixteen pages long, appears at 36 Tort & Ins. L.J. 899 (2001).) The debate really took off following the 8th Circuit's (since-vacated) decision in Anastasoff v. United States in August 2000. I have to believe that there wasn't really anything new to say after a couple years, but yet hardly a month would go by without another article coming out. To return to the point with which I opened, it seems like a potentially interesting case study of an issue becoming extremely hot for a relatively brief period of time, and which in a another five years may be largely forgotten. (Alternatively, this may be the sort of thing that happens all the time, and it's only interesting to me because this is the first time I've seen it happen from start to finish. Even so, seems like there's an article about articles lurking around here somewhere.)