Tuesday, November 21, 2017

The Supreme Court of Illinois Amends Rule 23, clarifying "What" can be Unpublished, not necessarily clearing up the confusion of Why we need to continue to Deal with the "Unpublished" Dilemma

from Professor Tom Higgins
Understanding what an “Unpublished” decisions is in Illinois or more importantly why we even have “Unpublished” decisions in Illinois has been a struggle for practitioners as well as Legal Research faculty and students.  The reality is that since 2011 Unpublished decisions were very much Published.  As a result, I have taken the position of Morris Lane Harvey in the Illinois Bar Journal article titled Let’s Get Rid of Rule 23 Orders in any conversation or class presentation I have had on this topic.  For many years now have I have argued that the adoption of the public domain system in 2011 should have allow the often mysterious or inconsistently designated  Rule 23 (e) Order decisions to be used as “persuasive authority”.  You can read the IBJ article here: https://www.isba.org/ibj/2017/01/letsgetridofrule23orders

The Amended Rule 23 as filed by the Supreme Court of Illinois today doesn’t get rid of the 23 (e) dilemma.  It does, however, provide better guidance to the Appellate Courts and arguably provides expectations for practitioner as to what decisions would be appropriate for such Orders.   

We shall see how this plays out in practice and it will be interesting to see if the number of cases currently tagged “Unpublised” actually changes.  Regardless, for my current or former students, the Rule can be found here for your reading pleasure.