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Wednesday, April 08, 2009

Cert Deni … zzzzzzzzzzzzzzzz

Why put “cert. denied” after a circuit-court citation and then cite to the United States Reports page denying the cert? Who cares?? What a frikin’ newsflash – the Supreme Court decided not to hear the case. To quote my three-year-old son: “That makes me bored.”

Posted by Eric E. Johnson on April 8, 2009 at 06:54 PM | Permalink


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Has the 2-year limit on citing cert denials always been in the Blue Book? If not, does anyone know when it was introduced?

Posted by: alkali | Apr 9, 2009 1:18:46 PM

There is much to what Raivo says, but I would put it slightly differently.

The answer that it's done simply because it's in the Bluebook has to be the right one. But it's really not that stupid a rule -- at least, I don't know why you are singling it out. I guess it's to signal that the decision is final and will not be overturned on discretionary review, which all told can take a long time. (It doesn't really show that the Supreme Court won't reject the holding in the near future, or any broader sense that it's the final word, as may be implied by some of the prior answers.)

It also does a few other things, such as: (1) suggests that the case's subsequent history has been checked, so that the reader need not reflect on whether, for example, an unnoticed certiorari petition may be pending; (2) suggests that a petition was filed, which can often be the source of interesting (if perhaps unpersuasive) criticisms of the lower court decision; (3) provides an implicit outer bound to delay in the law review's publication schedule, by proposing a rule that is generally enforceable for no more than two years beyond the time of the author's last-cited case. And like all Bluebook rules, its ultimate purpose is to teach lawyers how to understand codes like those adopted by the modern regulatory state, exploit them, and ultimately rebel against them.

P.S. It is painful to acknowledge, but I suspect your three-year old would equally condemn your post and this comment.

Posted by: Edward Swaine | Apr 9, 2009 10:17:33 AM

When I clerked on a COA, the staff attorneys frequently included it in their draft criminal opinions. I think the idea was, as earlier commenters noted, to indicate that whatever (usually non-favorable-to-defendants) thing we'd said was not going to be rejected by the SC in the immediate future.

Posted by: Jay | Apr 9, 2009 3:10:59 AM

It's in the Bluebook! Rule 10.7: "[O]mit denials of certiorari or denials of similar discretionary appeals, unless the decision is less than two years old or the denial is particularly relevant."

Surely you aren't questioning the Bluebook!

Posted by: Managing Board | Apr 8, 2009 10:37:31 PM

Journals do it with respect to circuit court decisions issued within the last two years. The implication is that the decision is recent enough for the reader to have some genuine uncertainty as to the status of the appeal. Letting the reader know cert has been denied means the reader may trust that the circuit court holding will remain the final word.

Posted by: Anon | Apr 8, 2009 7:22:38 PM

I think the IRS often does it to (incorrectly) imply that the Supreme Court approved of the circuit's decision. Haven't done a scientific study, but it seems like when the IRS cites authority favorable to it, it includes "cert denied," but adverse cases don't have that annotation.

Posted by: andy | Apr 8, 2009 7:05:28 PM

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