SPECIAL REPORT ON CALIFORNIA APPELLATE JUSTICE: Depublication Deflating: The California Supreme Court's Wonderful Law-Making Machine Begins to Self-Destruct Skip over navigation
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Copyright (c) 1994 University of California, Hastings College of Law
Hastings Law Journal

SPECIAL REPORT ON CALIFORNIA APPELLATE JUSTICE: Depublication Deflating:
The California Supreme Court's Wonderful Law-Making Machine Begins to Self-Destruct

March, 1994

45 Hastings L.J. 520

Author

Stephen R. Barnett *

Excerpt





Introduction
 
As Professor Kelso's admirable study recognizes, any consideration of the appellate system in California must take account of the California Supreme Court's unique and controversial practice of "depublishing" selected opinions of the courts of appeal. 1 The court began depublishing cases in 1971 2 and now, as Professor Kelso notes, depublishes more cases than it publishes. 3 In the most recent year the court decided 95 cases by written opinion and depublished 109 court of appeal opinions. 4 Depublication thus stands today as a major way in which the California Supreme Court shapes - or tries to shape - California's law. Whether this singular procedure 5 can hold that role indefinitely, or is more likely to unravel from its own internal contradictions, is the subject of this Comment.

The supreme court accomplishes depublication by using its power under California Rule of Court 976(c)(2) to order that a court of appeal opinion, certified by the court of appeal for publication in the official California Appellate Reports under Rule 976, 6 "not be published" there after all. 7 The opinion thus is rendered "unpublished" and brought under California Rule of Court 977(a), which states that, with narrow exceptions, an unpublished opinion "shall not be cited or relied on by a court or a party in any other action or proceeding." 8 The supreme court orders an opinion depublished without hearing the case or giving reasons for its action, but also without affecting the result; despite depublication of the opinion, ...
 
 
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