But even the citation studies recognize that in judicial decisions, the doctrine of binding precedent might require a citation--even a positive citation--to an unpersuasive or poorly reasoned opinion.
Judges may well be bound by those decisions as precedent, but judges can often distinguish the binding precedent if they find it unpersuasive.
Alito, who as a circuit judge chaired the Advisory Committee on Appellate Rules, explained then that the Rule does not take a position on "whether refusing to treat an unpublished opinion of a federal court as binding precedent is constitutional," nor does it require the federal circuits to assign a particular value to the circuit's own unpublished opinions, or to set criteria that appellate panels must weigh in determining whether to assign precedential value to a particular opinion.
pdf) ("The court generally does not cite to its 'unpublished' opinions because they are not binding precedent.
Given these two serious problems with the statute, it is debatable whether any constitutional and practically workable statute can prevent the citation of written determinations as binding precedents while allowing their citation as non-binding precedents.
To date, no federal court has explicitly held a written determination to be a binding precedent, or based a holding solely on the authority of a written determination.
2000), (3) a deliberate or solemn decision of court made after argument on question of law fairly arising in the case and necessary to its determination, is an authority or binding precedent in the same court or in lower courts in the judicial hierarchy in subsequent cases where the very point is again in controversy.
34) Under the law of this circuit, published opinions are binding precedent.
4) Further, "[t]he court will consider such opinions for their persuasive value but not as binding precedent
Judge Kozinski in Hart, while rejecting the claim that unpublished opinions must be binding precedents, goes further and upholds the Ninth Circuit's rule banning citation of those opinions.
The case against no-citation rules asks not that unpublished opinions be regarded as binding precedents, or as precedents at all in the normative, stare decisis sense.
hinder the development of binding precedent in bankruptcy because
of bankruptcy law to establish the proper binding precedent.