by: Colin E. Flora
Typically we talk about new developments or interesting topics presented by cases in Indiana and the Seventh Circuit. This week, unfortunately, there just weren’t any interesting enough to discuss. There was one case from the Court of Appeals of Indiana that I would like to have written about, but it is a memorandum decision and therefore cannot be cited pursuant to Indiana Appellate Rule 65(D). That was the eureka moment. While it would largely be a waste of time to write about the case, the rule blocking me from talking about the case is itself a topic worthy of our discussion . . . at least for pedants, such as I. Oh, and that case I would have discussed is Lee v. Blue Chip Casino, LLC. It is an informative slip and fall case and a good overview of summary judgment in such cases. Nevertheless, Rule 65(D), here we come!
A quick note, I am not the first and certainly will not be the last to discuss this topic. I have tried my best to consolidate the other discussions of the issue in Indiana and work them into this post or otherwise list them in the sources below with some useful more general sources. That said, one thing I endeavor to do here that is out of the ordinary is to pull in the scant caselaw of the state.
Let us now turn to the rule itself. Prior to becoming Ind. Appellate Rule 65(D), it was found at Ind. Appellate Rule 15(A)(3), which stated:
Unless specifically designated “For Publication”, memorandum decisions shall not be published nor shall they be regarded as precedent nor cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel or the law of the case.
The text of Rule 65(D) is only marginally different:
Unless later designated for publication in the official reporter, a memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
History of Unpublished Cases
Before we jump into the various nuances of the rule in Indiana, let us look for a second as to why there is a distinction between published and unpublished decisions. Historically, very few cases were ever preserved in bound form. We are told by legal luminary Sir William Blackstone that the origin of public distribution of English legal opinions dates to the reign of Edward II in the Year Books, which continued through the reign of Henry VIII. In 1535, the Year Books were supplanted by the reporter system. Of this system, Blackstone, writing in the mid eighteenth century, wrote:
from the reign of Henry the Eighth to the present time this task has been executed by many private and contemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination.
In the early days of the American system of law, like its English counterpart, reports were created largely by private individuals. The earliest reports of the Supreme Court of the United States were privately published by the Reporter of Decisions, with citations to the reports using the reporter's name. In other courts, reporters were a great deal less frequent. It was this dearth of law reports that helped to build the wealth and prestige of Indiana’s foremost jurist–Isaac Blackford. Blackford was Indiana’s fourth justice and remains the longest tenured, having served from 1817 to 1853. Blackford has been referred to as “Indiana’s Blackstone” due to his contributions to the nineteenth century legal community. His contribution was Blackford’s Reports, which painstakingly compiled decisions from the Indiana Supreme Court. There was, however, some controversy surrounding Blackford’s work. The first was simply that his attention to detail bordered on compulsive, often causing delay in publication. The second, and more to our purposes, was that the choice of which opinions would be published was solely within his discretion.
As you can see, in the early days of American legal practice, there was a shortage of cases. Consequently, there was not need for a formal distinction between published and unpublished legal opinions. Nevertheless, even in the early nineteenth century, there is evidence of a preference for relying on cases that could be found in a reporter over those that even the judge knew to exist outside a law report. The case Bilbie v. Lumley, an English case from 1802, immediately comes to mind. The determination that some opinions would be published, and thereby precedential, while others would not was the product of an explosion in available legal opinions.
A fantastic article from the Indiana Law Journal explains the catalyst for the creation of formal unpublished decisions in federal courts. The common notion for what would become the federal rules on memoranda (unpublished) decisions is that in the 1960s, federal appellate courts became overburdened by the caseload causing calls for a less burdensome method for adjudicating routine cases. A less obvious, but certainly no less true, incentive was to slow the rapidly growing volumes of federal reports that cost for their acquisition and caused demands on court facilities to store and make accessible the works. In defense of unpublished decisions, then-Chief Judge for the Sixth Circuit, Hon. Boyce F. Martin, Jr. pointed out:
When I came on the bench in 1979, we were at Volume 602 of the F.2d. Now we are into the F.3d. The last time I checked my overburdened shelves, we were pushing past Volume 133. In 1996 alone, we went from 73 F.3d to 103 F.3d, filling more than 45,000 pages with appellate opinions. At this rate, we will go into the F.4th sometime around 2025. This Article is not about judges’ lack of shelf space for the kudzu-like growth of Federal Reporters, but the growth is indicative of too much written material creating too little new law.
Notably, Judge Martin’s critique covers a span in which memoranda opinions have been the norm. By 2005, approximately eighty percent of all appellate decisions were memoranda.
An article from the Boston College Law Review well summarizes the history of non-publication rules in federal courts:
Commentators expressed concerns about the growing number of judicial opinions as early as the 1800s. The movement towards formal limitations on the publication of, and citation to, appellate rulings did not emerge until 1964, however, when the Judicial Conference of the United States . . . resolved that courts of appeals should publish “only those opinions which are of general precedential value.” Seven years later, in 1971, the Federal Judicial Center . . . observed in its annual report there was “widespread consensus that too many opinions are being printed or published or otherwise disseminated.” The following year, the FJC’s Board recommended that the Judicial Conference instruct the courts of appeals to adopt procedures for publishing only some of their opinions and adopt rules limiting citation to unpublished opinions. Heeding that recommendation, in October 1972 the Judicial Conference directed the courts of appeals to develop their own plans for selective publication of opinions. By 1974 each court had developed its own plan, and the courts implemented them over the next several years.
Initially, opinions designated as unpublished were available to anyone who wished to pay a visit to the clerk’s office at each court of appeals, but were not otherwise disseminated to the public or to legal publishers. Over time, however, more and more “unpublished” opinions became widely available, primarily through private publishers such as West and Lexis. Today, most unpublished opinions . . . are accessible through electronic legal databases, or in West’s Federal Appendix, established in 2001, which includes every “unpublished” decision sent to it by courts of appeals. Moreover, the E-Government Act of 2002 requires that all opinions, published and unpublished, be posted on every federal court’s own website.
As with federal unpublished cases having become increasingly available online, the same is true in Indiana. (For a history of the availability of not-for-publication decisions in Indiana, see Some History About the Availability of Indiana COA Not-for-Publication Opinions on the Indiana Law Blog. Also for clarity, in Indiana, unpublished decisions from the court of appeals were historically called Not-for-Publication (NFP) but have been rebranded as memorandum decisions. They bear a notation at the top explaining Rule 65(D)).
With the creation of non-publication rules came the “no-citation rule.” That is, not only were the unpublished decisions not readily available, they were not permitted to be cited to a court. It is this form that Indiana’s prohibition has taken. The numerous esteemed authors of the recently published treatise The Law of Judicial Precedent attribute a benign rationale for the no-citation rule: the historical inaccessibility of unpublished decisions provided an unbalanced playing field favoring large organizations with the means to acquire and store unpublished decisions. In that light, the existence of unpublished rules makes sense as a balance among lawyers; for it is not merely the costs to courts, as described by Judge Martin, for acquiring and retaining the volumes, but of the bar as well–costs dramatically decreased by modern electronic repositories.
Interestingly, in federal courts the no-citation rule only applied to decisions from the circuit courts, not the Supreme Court or district courts. The absurdity of this result was well summarized in an article for the U.C. Davis Law Review:
But there is nonetheless something unsettling about rules that say to litigants that although their cases were decided correctly, the judges do not want anyone to let their judicial colleagues know what they did; something censorious and upside-down about rules that say to lawyers that although they may cite district court opinions, state court opinions, law review articles, or even nonlegal materials in their briefs, those briefs may subject their authors to professional discipline if they refer to certain writings of the very judges who sit on the court hearing the appeal; something confiscatory about rules that say to members of the public that although they have, through their taxes, paid for the production of an opinion, they may not derive any use from that opinion in subsequent disputes; and something arrogant about rules that confer upon judges the power to determine prospectively what cases will provide useful precedential or persuasive authority in cases years down the line, cases that raise issues the judges, for all their experience and collective wisdom, cannot pretend to foresee. Whatever the “judicial power” under Article III encompasses, regulation of the use of opinions to support legal arguments is not a traditional judicial or governmental function. Citation of legal authority, like other expressive conduct, should be left to the free marketplace of ideas.
To me, the most absurd result is that a treatise or article can discuss a hypothetical and that hypothetical, though never before a court of law, can be treated as guiding. Indeed, the article may also either disguise an unpublished case as a hypothetical or simply discuss an unpublished case and the article can be cited, but not the case directly. Indeed, I have flirted with this peculiarity in an article I wrote for Res Gestae, in which I discussed unpublished cases due to the paucity of caselaw on the topic. I think a lawyer or court would be perfectly within his/her/its rights to cite my discussion even though citation to the original decision would be improper.
In federal courts, the world of decisions by memoranda was thrown into chaos by a decision from the Eighth Circuit. In Anastasoff v. United States, a panel of the Eighth Circuit declared the no-citation rule was unconstitutional. That decision was vacated as moot on rehearing en banc. An article in the Indiana Law Review shortly after Anastasoff summarized the case:
The Eighth Circuit Court of Appeals created a stir in the area of published versus unpublished opinions with its initial opinion in Anastasoff v. United States. The opinion was vacated on rehearing en banc and would have had no legal effect in Indiana in any event. Nevertheless, the vacated opinion warrants attention because of the questions it raised.
Circuit Rule 28(A)(i) of the Eighth Circuit, like its Indiana counterpart, states that unpublished opinions have no precedential value and should not be cited by parties in other appeals. In the initial Anastasoff opinion, the Eighth Circuit concluded that its own rule was unconstitutional.
The court reasoned that the power constitutionally vested in the federal judiciary in Article III of the U.S. Constitution is founded in substantial part on a duty of courts to follow their own precedent. According to the court, a departure from the system of following precedent would have been deemed by the framers of the Constitution as “an approach to tyranny” and an “abandonment of all the just checks upon judicial authority.” Thus, the court concluded, because Rule 28A(i) allowed the court to ignore other decisions of that court simply because they are discretionarily labeled “unpublished,” Rule 28A(i) expanded the judicial power beyond the limits set by Article III. Insofar as it limited the precedential effect of the court’s prior decisions, the rule was deemed unconstitutional.
Following the buzz from Anastasoff, Federal Rule of Appellate Procedure 32.1 was enacted, permitting citation to unpublished federal appellate decisions issued after January 1, 2007, but mandating that such decisions are not binding precedent. Rule 32.1 effectively took the wind out of the reformer sails.
The role as informative, but not precedential (i.e., not binding), requires us to take a look for a moment at the doctrine of stare decisis. For an understanding of the importance of the doctrine, let us look back to Blackstone:
The knowledge of that law is derived from experience and study; from the “viginti annorum lucubrationes,” [the lucubrations of twenty years] . . . and from being long personally accustomed to the judicial decisions of their predecessors. . . . And therefore, even so early as the Conquest [1066 A.D.], we find the “praeteritorium memoria eventorum” [the remembrance of past events] reckoned up as one of the chief qualifications of those, who were held to be “legibus patriae optime instituti.” [Best instructed in the laws of their country.] For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being wrong to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.
Blackstone’s view on stare decisis, although considered nearly fanatical by some, is the foundation of the modern publicly expressed view and not unique to Blackstone. As Justice John Paul Stevens noted:
The near-dispositive strength Blackstone accorded stare decisis was not some mere personal predilection. Chancellor Kent was of the same view: “If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it.” 1 J. Kent, Commentaries *475-*476 (emphasis added). See also Hamilton's statement in The Federalist: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, p. 471 (C. Rossiter ed. 1961).
Of course, Blackstone recognized that there are exceptions:
Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the Divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation.
I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.
The reason we have looked at stare decisis is because it stands in direct opposition to no-citation rules. There was never a recognized carve out for unpublished cases. The distinction was merely those cases that were rightly decided and those that were not. As the late Justice Antonin Scalia described: the purpose of the doctrine is the interest in protecting settled expectations. The no-citation rule on its surface might not seem to be at odds with this principle in the sense that you cannot have a reasonable, let alone “settled,” expectation in a case that was specifically deemed non-precedential. This would seem akin to the puffery doctrine, wherein courts refuse to enforce a buyer’s expectation based upon statements by a seller upon which no reasonable person could place stock. The problem is that the case does not exist in a vacuum; it should be the product of the same law as the next case. Thus, the expectations generated by the precedential law should lead to the same conclusion as the court reached in the unpublished case, and therein lies the rub. At its core, the distinction between published and unpublished decisions is in contravention of the doctrine at the very core of a common law system
Indiana’s No-Citation Rule & Caselaw
This takes us back to Indiana where Ind. Appellate Rule 65(D) (formerly 15(A)(3)) remains firmly the law. So what do we know about Rule 65(D)? The simple answer is not much. There is some caselaw on the rule, and we will discuss that, but the full scope of Rule 65(D) does not always seem to be clear to even the court of appeals, let alone practitioners. The first citation to the rule in a published opinion, as has usually been the case since, was merely a rebuke of counsel for violating the rule. Prior to that decision, however, there was some indication of a pre-rule limitation as well. In Hagood v. State, the court of appeals stated:
Decisions not addressed to the general public should not influence the actions of those not parties to the proceeding in which it was rendered until it is published in the reports provided by law.
The case Hagood relies upon for the statement seems dodgy to me. The case, Herron v. Whiteley Malleable Castings Co., from 1910, states:
The decisions of the courts of last resort, while generally regarded as of binding authority by lower tribunals, beyond the limits of the case in which the decision is rendered, strictly speaking, are not law. They are simply evidence of law of greater or less persuasive force, as these decisions are harmonious, apparently well considered and of long standing. They are not addressed to the public generally, but to the case under consideration, and are not to be presumed to influence the actions of those not parties to the proceeding in which they are rendered, at least, until they have been published in the reports provided by law for their publication, or are of such long and unchallenged standing that they may reasonably be presumed to have become publicly known.
The case appears rooted in a classical conception of “the law” as a platonic solid searched for but never truly discovered–sometimes called the declaratory theory of law (this was Blackstone’s view)–as opposed to the modern view of “the law” as articulated by legal realists–more on that in a moment. The point here is simply that we know from Hagood that if an opinion is not published for the general public, then it should not influence other courts outside of the case itself. Using that logic, the court concluded that the decisions of one Indiana trial court are not binding on another trial court.
Since Hagood, other Indiana courts have recognized the unremarkable premise that a decision by one Indiana trial court does not bind another. As the Supreme Court of the United States has found, “A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” But Rule 65(D) takes it a step further. It is one thing to say that decisions of one trial court are not binding on another. In Indiana Department of Natural Resources v. United Minerals, the court of appeals recognized that Rule 65(D), however, prohibits citation of Indiana trial court decisions altogether:
Counsel are admonished that, just as it is inappropriate to cite memorandum decisions of this court as precedent (Ind. Appellate Rule 15(A)(3) [now 65(D)]), it is similarly inappropriate to cite trial court decisions.
Notably, immediately before the footnote quoted above, the court cited to Hagood. The question, then, is whether this prohibition is universal or only because modern Indiana trial court decisions are not published in an official reporter. Mind you, there used to be a report dedicated to Indiana trial courts–Wilson’s Superior Court Reports. Indeed, I know of at least one decision from Wilson’s that was deemed of sufficient authority to draw citation in the original 14 Corpus Juris Corporations. I see no reason why that case, though the product of a trial court, is barred by Rule 65(D). True, such a reporter would not now be official, but it is no less official than citing to Blackford’s Reports. Indeed, the only reporter designated as official by Rule 65(C) is West’s Northeastern Reporter.
Although Indiana trial court decisions cannot be cited, federal district court decisions that are never published (there are a handful of reporters that publish select district court opinions, then many more select decisions published on Westlaw and LexisNexis) can be cited. In what seems a long forgotten decision, Barco Beverage Corp. v. Indiana Alcoholic Beverage Commission, the court of appeals cited to a case from the Southern District of Indiana (federal court) that appears to have never been published by any source, signaled by citation directly to the case number and nothing else. In an accompanying footnote, the court stated:
The contention by the Intervenors that citation to unpublished decisions of Federal District Courts is improper is without merit. Ind. Rules of Procedure, Appellate Rule 15(A) [now 65(D)] relates only to unpublished decisions of this court. Similarly, Seventh Circuit Rule 33(b)(2)(iv) relates only to unpublished decisions of the Seventh Circuit. Citation to unpublished District Court cases is proper, and not without precedent in Indiana.
In its footnote 2, the majority correctly and appropriately notes that the Court of Appeals Memorandum Decision which treated the merits of the appeal in Lytle v. Miller may not be regarded as precedent nor cited to any court. This prohibition contained in App. R. 15(A)(3) [now 65(D)] does not, however, relate to unpublished decisions or orders of our Supreme Court or from any court other than the Indiana Court of Appeals. See Barco Beverage v. Alcoholic Beverage Commission (1991) 2d Dist. Ind. App., 571 N.E.2d 306.
Now, two decades later, Barco seems to have largely been forgotten. That is not to say that anyone hesitates to cite to unpublished district court opinions, just that the origin of the permission to do so seems forgotten. Two years ago, the court echoed the conclusion of Barco, but did not cite to it:
While not-for-publication memorandum decisions of the Indiana Court of Appeals “shall not be regarded as precedent and shall not be cited to any court" absent certain exceptions, App. R. 65(D), that is not true in the federal court system, see Fed. R. App. P. 32.1; see also id. cmt. (“a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value . . . .”). Indiana Appellate Rule 65(D) applies only to not-for-publication memorandum decisions of the Indiana Court of Appeals.
The 2014 decision caused at least one commentator to treat the holding as newly blazed territory. As we see, it is fairly well entrenched.
A more interesting debate, one recognized by the aforementioned commentator, was stated by him as:
I know that Indiana’s practitioners have debated whether unpublished decisions from other jurisdictions may be cited to Indiana’s courts. And it appears that the issue has roundly been answered in the affirmative.
Better insight into that debate, I think, was provided by a case from the same year, but slightly earlier. The case was Allen County Public Library v. Shambaugh & Son, L.P., in which Judge Michael P. Barnes relied upon an unpublished case from Iowa. In support, he wrote:
In Iowa, unlike in Indiana, unpublished decisions may be cited as authority so long as they are readily accessible electronically, though they are not controlling upon other Iowa courts. See Iowa Court R. 6.904(2)(c).
The clear rule from Allen County appears to be that so long as the jurisdiction from which the case stems permits citation, then Indiana may cite to it. This seems in keeping with the pronouncement in Hagood that the utility of the case depends upon the intended audience. Thus, if the originating forum is aware that its decision may be relied upon, then it knows it is writing for the general public, not just the parties before the tribunal. Lest you think I make this as a purely academic argument, I have cited Allen County precisely for this premise in a recent brief to the Court of Appeals of Indiana to support citation to a case that was cited by the trial court (and originally by me in the trial briefs).
Ironically, as I pointed out in our prior discussion of Allen County, the one case I can think of prior to Allen County to discuss citation to unpublished state court cases from other jurisdictions–Weldon v. Asset Acceptance, LLC–did not permit the citation:
The third case cited by Weldon in support of this proposition is an unreported New York case; we remind Weldon that not-for-publication decisions have no precedential value. Ind. Appellate Rule 65(D). Thus, we will not consider that decision.
The irony is that New York permits citation to unpublished cases.
So we’ve discussed the interesting caselaw of unpublished decisions in Indiana, but you might be left to wonder two things. First, what’s the problem with unpublished decisions? Second, what can I do to get around Rule 65(D)? The answer to the first question has been the basis of a great many journal articles (see some listed below). I will give you my condensed perspective. Remember earlier that we talked about the classical view of “the law” as different from the legal realist view. For my money, the best definition of “the law” is that used by Justice Oliver Wendell Holmes, Jr. in an address at the dedication of the new hall at the Boston University Law School, published as The Path of the Law:
The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
This view of the law has been deemed by academics as Holmes’s Prediction Theory of Law. As I’ve argued before, I think the availability of guiding precedent (even if only persuasive), serves “the law” by making it more predictable.
Legal reasoning is primarily one of reasoning by analogy. Judge Richard A. Posner provides a fantastic discussion of reasoning by analogy and its limitations in his book How Judges Think, which I commend to you for a better discussion than I will provide here. I think Judge Posner would disagree with my oversimplification, but for our purposes, with apologies to his honor, I will be flippant in the discussion. There is a relatively small number of cases that form truly binding precedent. Such cases typically deal with hard and fast rules of procedure. Most caselaw, especially common law cases, are founded in analogy to factual circumstances that have previously been adjudicated. Though there are millions of cases, on a great many points of law there is still a dearth of relevant decisions.
A good example is from the first appeal I handled: Urbina v. Klinkose-Kyler. The resulting decision was unpublished (despite a concurring opinion). That it was unpublished shocked me to the point that we filed a motion to publish the decision, which was denied. In case you think I am merely partial to my own case, the highly respected Indiana Law Blog wrote of Urbina: “The ILB adds this opinion to its ‘running list of cases designated as NFP that perhaps should not have been,’ . . . .” It was a case widely discussed online (some citations below). Ironically, I think most of the discussion was because of the salacious detail and not the legal point, though I think ILB was focused on the legal point. If you are interested, we have discussed the case on the Hoosier Litigation Blog before.
The problem with predictability is even greater now that the cases are available. It is one thing to take a guess at what a court might do when the issue is wholly novel, but the problem of prognostication comes to the fore when virtually the same issue has been resolved in an unpublished case. There is a serious risk that the court will rule contrarily to the unpublished case. Although there is always a chance that precedent can be distinguished (even if virtually identical) or simply overruled, the risk is much smaller than a contradictory ruling to a case that the court is not allowed to know exists. As the authors of The Law of Judicial Precedent note, in the Sixth Circuit, for example, unpublished decisions are not binding on a subsequent panel, whereas a published opinion may only be overruled by the Sixth Circuit sitting en banc.
As to the second question, how to get around Rule 65(D), IU McKinney Professor Joel Schumm provided an excellent discussion for the Indiana Law Blog, in which he speculates on five possible approaches: (1) utilizing Appellate Rule 1, which allows deviation from the rules; (2) hinting in a brief that such authority exists–Professor Schumm's example was “No published opinions have addressed this issue”; (3) cite to a previous filed brief addressing the issue; (4) ask the court to take judicial notice pursuant to Evidence Rule 201(b)(5); and (5) litigate the issue of citation to unpublished decisions.
For those of you who do not know Joel, let me make clear that he is not merely an ivory tower academic; Joel is a regular in the court of appeals and is one of the most respected appellate advocates in Indiana. If you need to find a way around Rule 65(D), I would advise taking him up on his offer to help.
The future of Rule 65(D) is an interesting topic. In 2013, the Indianapolis Bar Association put forth a proposal to sunset the no-citation rule similar to Federal Rule 32.1, but the proposal was rejected. In a similar vein, at least one person (if you guessed me, you’re right) has called for cases from the six newly formed commercial (trial) courts to be published to allow reliance upon their specialized expertise. Ultimately, there is little incentive for appellate judges to abandon the rule. If the court thinks that it is bereft of guidance, it can and will conduct its own research and can find the unpublished case the same way as the lawyers. The judges’ law clerks are typically better researchers than the average lawyer; rarely will lawyers be able to find something the court cannot, if it is inclined to search. It also keeps judges from feeling confined and having to find ways to reach a preferred end (not to say one driven by selfish motivation, but one the judge thinks most supported by his or her concept of justice and understanding of the law). The only way I see things changing is for one of our justices on the Indiana Supreme Court to lead the charge.
Thank you for making it through a piece I’ve long wanted to write but never before found the time. Take a look at the sources below if you want an idea about what a labor of love this piece was. Next week, we’ll be back to our usual, less esoteric, articles . . . I hope.
Join us again next time for further discussion of developments in the law.
- Lee v. Blue Chip Casino, LLC, No. 46A04-1512-CT-2325, 55 N.E.3d 921 (Table), 2016 Ind. App. Unpub. LEXIS 538, 2016 WL 2757579 (Ind. Ct. App. May 12, 2016) (Bradford, J.).
- Bilbie v. Lumley, 2 East 469 (102 ER 448) (1802).
- Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh’g en banc, 235 F.3d 1054 (8th Cir. 2000).
- Rogers v. Tennessee, 532 U.S. 451, 473 n.2, 121 S. Ct. 1693, 1706, 149 L. Ed. 2d 697 (2001) (Stevens, J., dissenting).
- Com. of Mass. v. United States, 333 U.S. 611, 639–40, 68 S. Ct. 747, 763, 92 L. Ed. 968 (1948) (Jackson, J., dissenting).
- Am. Trucking Ass'Ns v. Smith, 496 U.S. 167, 204, 110 S. Ct. 2323, 2345, 110 L. Ed. 2d 148 (1990) (Scalia, J., concurring).
- In re Estate of Wisely, 402 N.E.2d 14, 17 n.5 (Ind. Ct. App. 1980), trans. denied.
- Hagood v. State, 182 Ind. App. 317, 324, 395 N.E.2d 315, 320 (1979).
- Matheney v. Commonwealth, 191 S.W.3d 599 (2006).
- Herron v. Whiteley Malleable Castings Co., 47 Ind. App. 335, 336, 92 N.E. 555, 556 (1910), trans. denied.
- Smith v. State, 38 N.E.3d 218, 222 ¶ 17 (Ind. Ct. App. 2015).
- Camreta v. Greene, 563 U.S. 692, 709 n.7, 131 S. Ct. 2020, 2033 (2011) (Kagan, J.).
- Smock v. Henderson, 1 Wils. 241 (Ind. Super. Ct. 1872).
- Barco Beverage Corp. v. Ind. Alcoholic Beverage Com., 571 N.E.2d 306, 308 (Ind. Ct. App. 1991).
- Cua v. Morrison, 600 N.E.2d 951, 954 n.3 (Ind. Ct. App. 1992) (Sullivan, J., concurring), superseded, 636 N.E.2d 1248 (Ind. 1994).
- Wertz v. Asset Acceptance, LLC, 5 N.E.3d 1175, 1183 n.13 (Ct. App.) (Najam, J.), trans. dismissed, 15 N.E.3d 588 (Table) (Ind. Aug. 28, 2014).
- Allen Cnty. Pub. Library v. Shambaugh & Son, L.P., 997 N.E.2d 48 (Ind. Ct. App. 2013), on reh’g, 2 N.E.3d 132 (Ind. Ct. App. 2014) (Barnes, J.), overruled on other grounds by Bd. of Comm’rs of Cnty. of Jefferson v. Teton Corp., 30 N.E.3d 711, 718 (Ind. 2015) (Rush, C.J.).
- Weldon v. Asset Acceptance, LLC, 896 N.E.2d 1181, 1185 n.3 (Ind. Ct. App. 2008) (Baker, C.J.), trans. denied.
- Urbina v. Klinkose-Kyler, No. 06A01-1210-CT-464, 985 N.E.2d 1153 (Table), 2013 Ind. App. Unpub. LEXIS 503, 2013 WL 1788250 (Ind. Ct. App. 2013) (Friedlander, J.).
- 14 C.J. Corporations § 709 (1919).
- Colin E. Flora, Indiana Revisits Interpretation of AIA Standard Construction Contract, Hoosier Litig. Blog (Jan. 31, 2014).
- Colin E. Flora, Pavlack Law Scores Appellate Victory for Clients: Urbina v. A Bond of Life Adoptions, LLC, Hoosier Litig. Blog (Apr. 26, 2013).
- Colin E. Flora, The Resurrected Counterclaim: Ind. Trial Rule 13(J), 58 Res Gestae 13 (March 2015).
- Colin E. Flora, In-Box: Commercial Courts, Ind. Lawyer: Letters to the Editor (Feb. 10, 2016).
- Brad A. Catlin, You Can Cite Unpublished Opinions To Indiana Courts, Just Not Indiana Unpublished Opinions, News & Blog (May 25, 2014).
- Marcia Oddi, Citing Unpublished Opinions, Ind. Law Blog (May 19, 2003).
- Joel Schumm, NFP Decisions Cannot be Cited –– or Can They?, Ind. Law Blog (Sep. 4, 2014).
- Marcia Oddi, Some History About the Availability of Indiana COA Not-for-Publication Opinions, Ind. Law Blog (May 2, 2016).
- Marcia Oddi, COA Sides with Canadian Couple Who Sued Adoption Agency over Drug-Addicted Baby, Ind. Law Blog (Apr. 26, 2013).
- Rally, Lawsuit: A Bond of Life Adoptions, ReformTalk.net (Apr. 26, 2013).
- Indiana Adoption Agency Sued for Addicted Baby, Ind. Injury Lawyer Blog (May 22, 2013).
- Indiana Court of Appeals Rules on Wrongful Adoption Case, Lifting the Veil (Apr. 29, 2013).
- Douglas E. Cressler & Paula F. Cardoza, A New Era Dawns in Appellate Procedure, 34 Ind. L. Rev. 741, 753–54 (2001).
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- Bryan A. Garner et al., The Law of Judicial Precedent § 13 (2016) (the other authors are Hon. Carlos Bea, Hon. Rebecca White Berch, Hon. Neil M. Grouch, Hon. Harris L Hartz, Hon. Nathan L. Hecht, Hon. Brett M. Kavanaugh, Hon. Alex Kozinski, Hon. Sandra L. Lynch, Hon. William H. Pryor Jr., Hon. Thomas M. Reavley, Hon. Jeffrey S. Sutton, and Hon. Diane P. Wood).
- David Greenwald & Frederick A. O. Schwarz, Jr., The Censorial Judiciary, 35 U.C. Davis L. Rev. 1133, 1174 (2002).
- Dione Christopher Greene, The Federal Courts of Appeals, Unpublished Decisions, and the “No-Citation Rule”, 81 Ind. L.J. 1503 (2006).
- Thomas L. Hudson, The “Secret” History of Memoranda Decisions, 11 Ariz. Att’y 14 (June 2006).
- Scott E. Grant, Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule Appellate Procedure 32.1, 47 B.C. L. Rev. 705 (2006).
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- Karen S. Breda, Guide to Citation of Unpublished Federal Court Opinions Issued before January 2007, Am. Assoc. of Law Libraries 16th Legal Research Teach-In.
- Survey of State Courts’ Treatment of Their Own Not-for-Publication Appellate Opinions, Indianapolis Bar Assoc.
- 1 William Blackstone, Commentaries *69–72 (Lewis ed. 1922).
- Legal History: The Year Books, Boston University School of Law.
- Elizabeth R. Osborn, Indiana Courts and Lawyers, 1816-2004, in The History of Indiana Law 259 (David J. Bodenhamer & Randall T. Shepard, eds., 2006).
- The Path of the Law, 10 Harv. L.Rev. 457, 460–61 (1897).
- Anthony D’Amato, A New (and Better) Interpretation of Holmes's Prediction Theory of Law, Northwestern University School of Law Scholarly Commons: Faculty Working Papers (2008).
- Richard Posner, How Judges Think 180–91 (2008).
- Robert Timothy Regan, Citing Unpublished Federal Appellate Opinions Issued Before 2007, Fed. Judicial Ctr. (Mar. 9, 2007).
- J. Thomas Sullivan, Unpublished Opinions and No Citation Rules in the Trial Courts, 47 Ariz. L. Rev. 419 (2005).
- Stephen L. Wasby, Unpublished Court of Appeals Decisions: A Hard Look at the Process, 14 S. Cal. Inter disc. L.J. 67 (2004)
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.