Now we know what new Rule 47.7 means. "The court to whom an unpublished opinion is cited has no obligation to follow the opinion or to specifically distinguish such opinion." Such opinions "may be cited merely as an aid in developing reasoning that may be employed by the reviewing court." But even the old rule did not justify "unreasoned inconsistency on the part of an appellate court." The flexibility provided by the new rule just makes it slightly more difficult for the court to ignore the prior reasoning. Carrillo, 98 S.W.3d at 794. I guess this means that published opinions must be specifically distinguished?

Senior Judge Richard Arnold's take on "unreasoned inconsistency" is as follows (commenting on the proposed change to the federal appellate court rule): the new rule would lead almost inevitably to giving unpublished opinions substantial weight as precedents. "It would be hard for a court to say, 'You can remind us what we did before, but we don't care. We're going to ignore it.'"

That creates another interesting dilemma for those offering advice to clients: "There are no published court decisions on that point, but you should be aware that the X case, which has no precedential value, says....." Do you now have the obligation to research or keep up with the unpublished law? I realize criminal prosecutors don't spend a lot of time advising clients, but this applies to a lot of what attorneys in general do on a daily basis. And obviously I am not talking about malpractice liability, just good lawyering.