A big welcome to blogosphere to the ambiguously-named “Insurance Coverage Law in Massachusetts.”
This blog is neat, because not only does it cover an area of law that is almost as neat as the law of rape and “Disturbing the Peace” but it also provides directions about how to read an insurance policy. It is written by Nina Kallen. The most interesting post of general interest is: Change In Citation Rule Can Have A Big Impact. This is an opportunity to expound on something that some folks have been thinking about recently.
This post, explains how the Massachusetts Courts, by virtue of a “Thou Shalt not Cite Unpublished Opinions” rule worked a substantive changes in the law of insurance coverage. But, believe it or not I have a few thoughts on these rules.
- A “Thou Shalt not Cite” rule can only apply to a court that is bound by either the same rules, or derives its rule-making authority from the same source. So, for example, no Federal Court can ever force a state court to adhere to its “Thou Shalt not Cite” rule. Indeed, no litigant need follow such rules. (In light of R. 32.1" It is now a moot point whether the FRAP can bind a District Court. Based on the plain language of Fed. R. App. P. 1, I don't think they can or do in light (except insofar as filing a Notice of Appeal or something like that) but some people, without explanation have insisted otherwise.)
- There is an ongoing debate as to whether “Thou Shalt not Cite” rules are even constitutional. In the wake of the E-Government Act, nobody can seriously claim that litigants don’t have access to unpublished opinions. Of course, demanding that a litigant provide a copy of an unpublished opinion is fair game.
- Even though the Federal Courts have eliminated the “Thou Shalt not Cite” rules (thanks, Howard) some state courts adhere to them. There is an ongoing debate as to whether such rules are unconstitutional as a First Amendment matter, or, on a greater level, whether they are unconstitutional as state and federal constitutions enshrine incorporate stare decisis into their structure, and therefore any rule-making authority can’t be used to weasel out of that doctrine.