Citation of unpublished opinions -- UPDATE

I'll be presenting five bills on the House floor today, and one of interest (SB33) would prohibit unpublished opinions in the Arkansas Court of Appeals. Many opinions delivered by the courts are designated as unpublished. This doesn't mean that they are unavailable, as they're delivered alongside with each of the other opinions each week by the court -- you can access them here.

However, the current rule prohibits the citation of unpublished opinions in any argument or brief, meaning that these unpublished opinions have no precedential value, even in our centuries-old common law system. Any lawyer who's ever written a brief has come across an opinion with an analogous set of facts only to find that the opinion is unpublished and can't be cited. This proposal would give precedential value to each opinion delivered by the Arkansas Court of Appeals (heretofore).

So long as we follow the English common law system, when an appellate court says what the law is for a particular set of facts, that decision should bind that court and lower courts in later similar cases unless (1) the prior decision has been overruled, (2) it can be distinguished from the case under consideration, or (3) is overruled in the process of deciding the current case. This bill, originally filed and pursued by Senator Robert Thompson (D-Paragould), has the backing of the Arkansas Bar Association.

Update: The bill passed 93-1 (the lone nay was Rep. John Burris, Republican of Harrison),has been enrolled, and is en route to the governor.