This post is from Attorney Edward A. (“Ted”) Bills who can be reached at 719.444.1000 or at http://www.SpringsAttorney.com.

This post is likely of greater interest to lawyers since it addresses a major milestone in federal court administration.

For years, the federal courts have issued “unpublished” oppinions and then precluded lawyers from citing them as precedent – that is not the case – or it will be no longer the case starting January 1, 2007, unless Congress countermands it before December 1.

So what caused the Supreme Court to adopt this historic rule change?

It appears that Supreme Court Justices Roberts and Alito may have played crucial rules in bringing about this long overdue change.

Some time ago when debating this issues, 9th Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted “entirely” by law clerks and staff attorneys. He added, “When the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.”

The committee Kozinski was referring to, the Advisory Committee on the Federal Rules of Appellate Procedure, was chaired at the time by then-3rd Circuity Judge Samuel Alito Jr., and one of its members was then-D.C. Circuit Judge John Robers Jr. Both supported the change while on the committee, and now that both serve on the Supreme Court, Wednesday’s vote may have been unsurprising.

The advisory committee’s original recommendation was to allow the citation of all unpublished opinions, both past and future, but a Judicial Conference added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next January 1. The high court adopted that amendment.

So how does one go about finding an unpublished case while doing legal research? Simple: the “unpublished” cases are readily available electronically, on Westlaw and Lexis.