Barring citation does not prevent the use of unpublished opinions; it merely alters the character of that use.
Typically, the reasons that the rules give for the prohibition of citation are that (1) unpublished opinions do not fully disclose the court's reasoning, and (2) unpublished opinions are not uniformly available to the parties.
In practice, no-citation rules tend to create two bodies of law: one that is published and generally available, and another that is not published and available mostly to special groups.
This splits the bar, because only those who have the necessary resources in time, and money, and personnel can make arrangements to gather, store, and retrieve unpublished cases.
When limited publication plans were adopted, unpublished opinions were essentially banished from public existence since the bound volumes were the sole source of case law. But technological advances have changed this reality: in jurisdictions that allow for public distribution of unpublished opinions, online research services make these decisions widely available despite an opinion's unpublished status, public access is indeed possible.
Since many attorneys and judges regularly use unpublished opinions, court participants spend actual time and resources searching these decisions, and the cost savings intended by not publishing and by prohibiting citation, are not realize. Costs may actually increase where unpublished opinions are not widely distributed and economies of scale in such tasks as collecting and indexing cannot be achieved.
UNCITABLE OPINIONS ARE USED EVERY DAY
Attorneys and others may also use unpublished opinions as authority in settlement negotiations. They can make unacknowledged use of that opinion in their appellate briefs by borrowing successful arguments or by lifting exact language and hypotheticals.
Unacknowledged use of unpublished opinions occurs; well heeled and institutional litigants benefit from disparate access.
The federal government, a frequent litigant, found that federal agencies have used unpublished opinions in making litigation or settlement decisions and determining whether to appeal or oppose an appeal.
Courts themselves may use unpublished opinions as de facto authority.
Some circuits do not routinely circulate unreported decisions to judges not on panel, creating further opportunities for de facto-citation.
Lower courts constantly refer to unpublished opinions as having precedential value and cite the unpublished opinions of other courts. Unreported cases are cited in law review articles and law treatises.
LARGER IMPLICATIONS
When a circuit court completely denies public access to judicial opinions, it removes an important check on judicial activity from the legal system. Public availability of judicial opinions holds judges accountable to society for the decisions they reach.
Forcingjudicial decision-making into the light of day helps not only to ensure fairness but also to promote the appearance of fairness.
Every opinion has information of importance to legal consumers and to scholars. Litigants base their decisions on the court's full record in each body of law. Lawyers routinely use judicial decisions in deciding whether to litigate or whether to appeal. Attorneys can and do access uncitable decisions to help make these decisions.
WHAT IS CITED
Certain types of decisions are systematically consigned to non-publication, thus creating entire classes of second-class litigants. The these categories include cases in which the government is a party, immigration and Social Security cases, Federal Tort Claims Act cases, criminal appeals, habeas corpus appeals, civil rights actions, and employment discrimination complaints against the federal government.
The absurdity of no-citation rules with regard to actual court decisions is demonstrated by the great variety of legal and nonlegal materials that are citable but are not considered precedent: certiorari denials (especially of the United States Supreme Court), dicta, vacated decisions, reversed decisions, overruled decisions, plurality opinions, equally divided affirmances, concurring opinions, dissenting opinions, decisions of inferior and coordinate courts, legislative history, decisions of foreign courts, agency rulings, attorneys' general opinions, law review articles, treatises, legal encyclopedias, and re-statements of law.
No-citation rules create a circumstance where an attorney may cite a law review article by a law student but be sanctioned for mentioning the carefully reasoned opinion of an appeals court judge appointed by the governor.
Moreover, economic, sociological, scientific, and other nonlegal data are cited with great frequency both by and to courts.
No-citation rules leave trial judges in the in the position of being bound to respect precedent, without being allowed to cite precedent, or even to be able to hear what the precedent is.