Abstract
Appellate lawyers and judges typically have the time and temperament to deliberate at length on legal problems. In contrast, trial lawyers and trial judges often need immediate answers. When an unpublished appellate decision supplies or suggests an answer, a rule barring its citation or consideration frustrates counsel and, sometimes, the trial court. Like the parent's admonition to the child not to grab a cookie from the jar, the no-citation rule may invite violation, subterfuge, and, occasionally, outright defiance.
This Article explores the problem of the cookies "locked" in the jar and proposes a rule that would give uniformity to citation within jurisdictions and would "unlock" the cookie jar when justice demands. Part I reviews the national trends in the increasing use of unpublished opinions and limitations imposed by no-citation rules. Part II addresses the ethical, professional and constitutional conflicts created by no-citation rules. Part III examines trial court reliance on unpublished opinions, including disposition of cases in which that reliance has been an issue on appeal. And, Part IV proposes a series of formal rules governing the use of unpublished opinions at the trial court level and for interlocutory appellate review in significant cases.
How to Cite
47 Ariz. L. Rev. 419 (2005)
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