For those of you have may not have watching this development closely, Federal Rule of Appellate Procedure 32.1 has been amended, and that amendment approved by the Supreme Court that will allow unpublished federal opinions to be used as persuasive authority in federal courts.  Currently, only four circuits allow unpublished opinions to be cited.  This changed was proposed by the Advisory Committee on Appellate Rules, passed by the Committee on Rules and Practice of U.S. Courts and the Judicial Conference of the United States.  This rule change may have a sweeping impact on how cases are decided and opinions written in the federal district courts.  For more on the background of these cases, see these two law review articles:  David Vladeck & Mitu Gulati, Judicial Triage:  Reflections on the Debate over Unpublished Opinions  and Penelope Pether, Inequitable Injunctions:  The Scandal of Private Judging in the U.S. Courts, 56 Stan. L. Rev. 1435 (2004).

Interestingly, when Justice Alito and Justice Roberts were being confirmed, no one mentioned how their confirmations would affect this outcome!  Both judges were on the Advisory Committee that proposed the rule change, and Justice Alito was the Chair.

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