Friday, January 16, 2009

To Cert. Or Not To Cert.

Back in the antedilvuian days when we were in law school, the practice we learned was to include Supreme Court denials of certiori as subsequent history when citing cases in briefs. We've pretty much been doing it ever since.

Lately, however, we've seen a lot fewer "cert. denied"s in the briefs other legal stuff we've been reading. Within the last month we've (well, one of us) had a conversation with a lawyer we think highly of who told us that he thinks some courts affirmatively don't want "cert. denied" added to citations, since such denials are of no precedential effect - which as a substantive matter is true.

So maybe it's time for "cert. denied" to join the second person familiar, words like "whereinbefore," the comma before "and," and distinctions between "who" and "whom" in the dustbin of grammatical history

So we thought we'd ask you, our readers, what you think of this burning issue. Do you include "cert. denied" in your citations and why?

It's Friday, so you should have come to expect this kind of thing from us by now.


Beck/Herrmann said...

Here's proof that we don't always write our blog posts jointly:

The one of us who didn't write this post -- It was Beck! No! It was Herrmann! -- is aware that the Bluebook (or at least the 18th edition, which is the one that's lying around) instructs to omit denials of cert "unless the decision is less than two years old or the denial is particularly relevant." (Sec. 10.7 at page 92.)

Edward M. "Ted" McClure said...

I see it more of a signal to the reader that no further appellate action need be anticipated for now. This idea would also justify routine use of parentheticals such as "not appealed" or "settled before appeal heard". It tells the reader that this is the last word on the subject in this matter.

Robert Thomas said...

I like cert denied. Maybe it's just old school habit (cut my L. Rev. teeth on 13th ed B.B.), but I find it mildly enlightening that, for whatever reason, the Court denied review. Tells me this issue may not be settled.