Howard Bashman, author of How Appealing. Courtesy photo

Upon Further Review

Now that many of us are still reeling in shock following the U.S. Court of Appeals for the Third Circuit's recent announcement that it has adopted a 5 p.m. electronic filing deadline, even after receiving so many unfavorable comments that convincingly debunked and refuted every rationale offered for the rule change, let's go back to a somewhat happier time when at least some appellate rule changes were for the better.

For example, the Federal Rules of Appellate Procedure were amended in December 2006 to allow advocates in every circuit court to cite to unpublished federal appellate opinions for their persuasive value. That rule change, which I strongly supported, was quite controversial at the time. Then-Third Circuit Judge Samuel A. Alito Jr. —in his role as the chair of the U.S. Courts' Advisory Committee on Appellate Rules—strongly supported the rule change. And then-Ninth Circuit Judge Alex Kozinski was a leading and outspoken critic of the rule change, many years before he resigned in scandal.