There’s this idea floating around out there…
that Rule 23 should be amended or killed dead in it’s sleep.
The argument goes that “Rule 23” cases should be eliminated because computers make it so easy to find cases.
The people advocating this are stupid.
Advocates of the “kill Rule 23” movement may be attorneys, but I know one thing: They don’t follow the cases. They are not apostles of the law and probably don’t have a real commitment to any one area of the law.
Either that or they are just completely missing the point.
Rule 23 does much more than just mark the cases for “publication.”
“Publication” in this sense doesn’t really mean to make public or to make available to the masses. The “published opinion” moniker is more like a blessing or a tag that we give cases to identify them as cases that carry an important aspect of the law.
The law professor would tuck in his or her sweater vest here and pull up their pants and say that published opinions carry precedential value and Rule 23 cases do not.
I don’t want get into a vocabulary argument,
but the point is that we want appellate courts to identify the garbage cases and push those aside.
It means that only certain cases are allowed to change, clarify, and define the existing law. To allow every single case decided to have precedential value essentially means we are abandoning our rule based system.
That’s really all we got.
It’s already hard enough trying to get prosecutors, trial judges, and appellate judges to follow the rules as they currently exist.
If we allowed them to lean on any case they wanted that would essentially be a license to do whatever they wanted.
Some say mass confusion and being able to cite to any case gives defendant’s an advantage. They say they’ll find a way through the kaos.
I think this too is misguided.
The other side will also be allowed to cite to anything they want.
If it’s an uphill struggle now, it will only become impossible with a change to Rule 23.
This is just my humble, but accurate opinion.
Subscribe to the Premium Nuggets with this discount link and start being an apostle to the Illinois criminal law.
Samuel Partida, Jr.