The basis for these comments is a decision last year by the Eighth Circuit Court of Appeals in Anastasoff v. United States. The court held that an Eighth Circuit local rule, which authorized nonpublication of opinions and explicitly stated that unpublished opinions were to have no precedential effect, was unconstitutional. The panel, in an opinion by Judge Richard S. Arnold, reasoned that a court rule purporting to confer upon appellate judges an absolute power to decide which decisions would be binding and which would not be binding went well beyond the “judicial power” within the meaning of Article III of the U.S. Constitution.
Bennett L. Gershman, Now You See It, Now You Don't: Depublication and Nonpublication of Opinions Raise Motive Questions, N.Y. St. B.J., Oct. 2001, at 36, available at http://digitalcommons.pace.edu/lawfaculty/59/.