Rinaldo Pierno v. Fidelity Brokerage Services, LLC

In the year 2000, Judge Richard S. Arnold in the Eighth Circuit noticed something was not quite right in the United States federal appellate courts. An aberration in the Anglo-American judicial tradition of precedent oc­ curred. A judicial mutation referred to as "non-precedential" dispositions began to appear and populate the fed­ eral appellate courts to the extent that twenty-two years after Judge Arnold noticed and called out the anomaly in Anastasoff u. United States,1 approximately eighty per­ cent of all appellate decisions throughout the appellate circuits are deemed "non-precedential." Judge in that year, authored an opinion in Anastasoff in which he de­ clared “non-precedential” decisions to be unconstitutional under Article III of the Constitution of the United States "...because it purports to confer on the federal courts a power that goes beyond the judicial."2 That decision was declared moot upon a technicality. Judge Arnold’s conten­ tion in his opinion has not yet come before the Supreme Court. However, in the last twenty-two years that have passed, Judge Arnold’s prophetic vision seems to have been on point, because the constitutional conundrum of the legitimacy of non-precedential dispositions has cre­ ated a chaos of contradictions in the federal appellate cir­ cuits that has affected courts, members of the bar, and ul­ timately litigants.3 1 Anastasoff v. United States, 223 F.3d 898, 899, (Eighth Cir. 2000), vacated as moot, 235 F.3d 1054 (Eighth Cir. 2000) (en banc). 2 Anastasoff v. United States, id. 3 Ahmed Bahgat, The Shockingly Common Use of Non-Pi-ecedential Opinions in Sixth Circuit Taser Litigation, ABA (2019). Available at: httos://wvvw.americanbar.org/groups/litiga{ion/committees/civilright.g/artLcles/2019/shockinglv-common-use-of-non-orecedential-ooinions-in-sixth-circuit-taser-litigation/; see also, Sarah E. Ricks, The