JoanShear | 30 April, 2007 12:06
Question: A confused 1L asked about how to find and KeyCite an unpublished case from the SDNY. He knew the names of the parties but didn't know what it means to be unpublished, and was especially confused once he located the case since it has a U.S.P.Q. cite.
Answer: With the names of the parties it was easy to find the case in Westlaw’s DCTNY database. With the case on the screen all that was needed to KeyCite the case was to click on the KeyCite tabs. What was more difficult, was explaining to the student why unreported cases have cites. In addition to its Westlaw cite this case has a citation to U.S. P.Q. (United States Patents Quarterly), a loose-leaf service published by BNA, which reports many "unreported" cases on intellectual property issues.
The student hypothesized that maybe the case didn’t have an official cite, and that was why it was considered unreported. But there is no official reporter for U.S. District Court opinions or even opinions from the U.S. Circuit Courts of Appeals. Unreported decisions of the lower federal courts are those not published in F. Supp. or F. Supp 2d, for the District Courts, and those not reported in F., F.2d, or F.3d, for the Circuit Courts of Appeals. To add an extra layer of confusion, West actually publishes a reporter of "unreported" Circuit Courts of Appeals decisions, called the Federal Appendix.
Unreported decisions issued by the courts are binding on the parties, but can be considered less precedential – even by the issuing court. Some jurisdictions do not allow citation to unreported cases. Recent litigation questioning the constitutionality of prohibiting citation to unreported cases has brought increased interest in this issue. A recent amendment to the Federal Rules of Appellate Procedure, FRAP 32.1, requires all federal circuits to allow citation to unpublished decisions that were published on or after January 1, 2007 (i.e., federal courts may prohibit or restrict the citation of unpublished cases opinions issued before that date).
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