Non-precedential judicial opinions issued by the federal appellate courts have generated significant controversy. Given that the federal appellate courts are unlikely to abandon the practice of issuing non-precedential opinions on their own, what other options exist for prohibiting the practice? This article discusses the constitutionality of a procedural rule or statute prohibiting the federal appellate courts from prospectively designating selected opinions as non-precedential. It explains how the rules governing non-precedential opinions allow federal appellate courts to "opt out" of their own rules of precedent. It then examines the rulemaking process, showing how the Federal Rules of Appellate Procedure are promulgated pursuant to delegated legislative authority and can, therefore, regulate only matters that Congress could regulate by statute. With those premises in mind, the article then explores the constitutional limits of Congress's ability to regulate the courts' use of precedent. It shows that a federal statute or procedural rule prohibiting prospective designation of selected opinions as non-precedential would be constitutional using both formalist and functionalist reasoning. As long as the statute or rule did not specify the weight federal appellate courts must accord to their own opinions, it would not encroach impermissibly on the courts' Article III judicial power.
A Government of Laws and Not Men: Prohibiting Non-Precedential Opinions by Statute or Procedural Rule, 79 Ind. L.J. 711 (2004)