unpublished decisions and the Supreme Court

[Richard D. Friedman]

At 01:37 PM 8/25/00 -0500, you wrote:
>As a side issue re unpublished opinions reviewed (and reversed) by the
>Supreme Court, one might ask how many views described as "frivolous" in the
>court below were found sufficiently meritorious to prevail on appeal.  (One
>assumes that there are numerous cases in which opinions deemed "without
>merit" by courts below were found to be winners on appeal.)
>
>Sandy


I don't know how often, but it happens.  This from Mark S. Stein ,OF IMPURE
HEARTS AND EMPTY HEADS: A HIERARCHY OF RULE 11 VIOLATIONS, 31 Santa Clara L
Rev 393 (1991), dealing with an earlier era of Rule 11.

Judges have sanctioned positions that were adopted on appeal; [FN51]
positions that had been taken, or were being taken contemporaneously, by
another federal judge in the very same litigation; [FN52] and positions
that *415 were later to be adopted by the Supreme Court. [FN53]

[FN51]. Trident Center v. Connecticut Gen. Life Ins. Co., 847 F.2d 564, 570
(9th Cir. 1988); Kucel v. Walter E. Heller & Co., 813 F.2d 67, 74 (5th Cir.
1987). These cases were noted in Joseph, Redrafting Rule 11, NAT'L L.J. at
12-13 n.5 (October 1, 1990).

[FN52]. In Indianapolis Colts v. Mayor and City Council of Baltimore, 775
F.2d 177 (7th Cir. 1985) [Colts III], the court sanctioned a position that
had been suggested in Indianapolis Colts v. Mayor and City Council of
Baltimore, 733 F.2d 484, 488 (7th Cir. 1984) [hereinafter Colts I]. In
Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983), the
panel majority sanctioned a position approved by the dissenting judge.
These cases are discussed in Stein, Rule 11 in the Real World: How the
Dynamics of Litigation Defeat the Purpose of Imposing Attorney Fee
Sanctions for the Assertion of Frivolous Legal Arguments, 132 F.R.D. 309,
323-26 (1990).

[FN53]. Peters v. Wilson Plastics, 38 F.E.P. 937 (N.D. Ill. 1985)
(sanctions under Title VII). This case is discussed in Stein, supra note
52, at 318. [There, Stein says that Peters is flatly inconsistent with EEOC
v. Commercial Office Products Co., 486 U.S. 107, 108 S.Ct. 1666, 100
L.Ed.2d 96 (1988).]

Rich Friedman
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