Copyright Jean M. Bowler, 1998
Law and American Society, Dominican College
Final Paper
August 3, 1998

Law That Is Arbitrary Is Illegitimate"[1]  :

The Practice of Depublication By The California Supreme Court

I. Introduction

     The tradition of common law is the foundation of American jurisprudence. The doctrine of stare decisis - "let the decision stand" i.e., to adhere to previously decided cases, produces a body of law which is designed to serve as precedent for future cases. The adherence to stare decisis legitimizes common law: here the development and evolution of law is not arbitrary but rather visible, predictable, and accountable. Thus, in this context of the rule of common law, restricting the ability to utilize as precedence a case which has been upheld at the appellate level would be a violation of our democratic principles, of our notions of jurisprudence, and of the very underpinnings of our legal structure.

     Unique to the State of California,[2]  depublication, sometimes called "de-certification,"refers to a constitutionally entrusted[3]  procedure whereby the Supreme Court may allow an appellate court opinion to be upheld between the litigating parties, yet orders it de-published so that the case opinion is then removed from the law books - thereby losing its precedential standing and value to future lawyers, litigants, judges and the public. The upheld opinion simply disappears.

     The Supreme Court's accountability to the foundations of stare decisis is most notably undermined by the failure of "public scrutiny and articulated reasoning"[4]  to accompany the order of depublication - the decision to de-publish a case is implemented without a public hearing or a written opinion.

     Continuity of opinion and legal reasoning based on published cases is a bulwark of legitimacy in the evolution of common law. Depublication, formally adopted in California in 1964[5]  as a means of coping with a burgeoning, voluminous and ostensibly repetitive case load, has succeeded in eliminating the judicial reasoning and articulated thought of a whole generation of appellate court justices.[6]  In the interest of "efficiency,"[7]  depublication is erasing law from the books. Today, with only 7%[8]  of appellate court opinions being certified for publication[9] , one has to wonder what is happening to the other 93%. Here in California, while streamlined judicial efficiency has been heralded, much law has simply disappeared.

     Understandably, the practice of depublication has been much maligned throughout the legal community - from lawyers, judges, and justices alike.[10]  Complaints range from issues stemming from procedural shortcomings i.e., the absence of public hearings or submitted opinions, to accusations of the Supreme Court's political agendizing in the failure to follow its own rule of court,[11]  thereby using depublication to quietly "prune" and shape[12]  the law as they see fit - becoming thus a kind of quasi-legislative body, not accountable to the people.[13] 

     This paper will seek to develop an in-depth analysis of depublication through the following three areas of focus : Firstly, this writer will explore the background and early history surrounding the practice of depublication; secondly, an examination of critical problems and threats to judicial integrity as noted through the usage and deployment of depublication will be articulated; and lastly, various solutions proposed extensively throughout the legal community will be discussed.

II. History of Depublication

     The historical foundations of depublication date back to the late 1800's. Articulating the need for written opinion, "the California Constitutional Convention of 1879 adopted the following provision: 'In the determination of causes, all decisions of the [supreme] court..shall be given in writing, and the grounds of the decision shall be stated.'"[14] Arguments in favor of this opinion included: the value of precedent and the promotion and contribution of well reasoned opinions to the body of law.[15] 

     The Constitution at that time did not mention a requirement for appellate court written opinions as such intermediary superior courts had not yet been established. Seeing an opportunity to control a growing case opinion output, the California Judicial Council, in 1929, proposed an amendment that would curtail written opinion. Ultimately unsuccessful in committee, the Council pursued the issue by asking the State Bar to study the problem.[16] 

     Throughout the 1930's, the California Bar was deeply divided on the issue of written opinion restriction. On the one hand, some members endorsed curtailment of publication, the argument being that many cases simply "rehashed unquestioned points of law."[17] On the other hand, the State Bar Journal reported that some members of the Bar "feared that without written opinions, the Bar would be denied useful precedents."[18]  Another argument against published opinion curtailment came from a Bar member who hypothetically suggested that "a judge would not give the cases in which he wrote no opinion the same careful consideration which he gives to the cases where his opinion will be perpetually subject to the scrutiny of judges, professors, legal writers, and the legal profession in general."[19] 

     Having failed in the 30's to adopt an agreed-upon proposal, the question surrounding the restriction of written opinion publication was not addressed again until the early 1960's. In short, up until this time, written opinions of the California Supreme Court and Courts of Appeal were officially reported.[20] 

     By the early 1960's, the burgeoning case load of the California courts raised this controversial issue once again. Proponents for selective opinion publication argued that unless the number of reported opinions was radically reduced, judicial efficiency would be compromised. Furthermore, wasteful expenditure for the maintenance of expensive law libraries housing "useless volumes of [repetitive] case law"[21]  would be obviated by the adoption of a rule which established restrictive guidelines for the publication of opinions. Thereafter, in 1964, the California Judicial Council adopted Rule of Court 976, articulating specific criteria for the publication of appellate court opinions. "Rule 976 provided that all opinions of the Supreme Court would be published, as would those of the lower appellate courts which involved a new and important issue of law, a change in as established principle of law, or a matter of public interest."[22] 

     The Rule of Court 976(b) guidelines in 1964, initially provided the appellate courts with discretionary power to decide if cases met the publication standard. The 1972 amended version changed the protocol dramatically : a majority of justices now had to certify that the opinion met the standard for publication in order to "overcome the presumption against publication"[23]  Here, every Court of Appeal opinion became presumably unworthy of publication , "unless such opinion (1) establishes a new rule of law or alters or modifies an existing rule, (2) involves a legal issue of continuing public interest, or (3) criticizes existing law."[24] 

     Rule of Court 976 wasted no time in making a substantial impact on the quantity of published opinions. From the period of 1964 to 1972, a dramatic reduction occurred in the number of published appellate court opinions. During this time frame, an average of 57% of written opinions were not certified for publication. This number rose to 71% in 1971.[25] 

     Now that restricted publication was well implemented within the Court of Appeal, the Supreme Court[26]  began exercising its constitutional prerogative[27]  to depublish opinions which the appellate court had certified for publication. 1971 marked the first year in which the California Supreme Court depublished a case. The Court defended the need to depublish in order to "excise erroneous statements of law."[28]  Depublication became a time-efficient tool for the Court to dispose of cases. Hearings were never granted for depublication considerations thus the procedure was very streamlined: the Court acted in private, depublication notices were posted in the advance sheets only, no commentary accompanied the decision, the opinion then disappeared from published law. Between 1971 and 1977, 126 cases were depublished by the California Supreme Court.[29] 

     The 1970's marked the beginning of extensive debates surrounding publication and depublication. Still recuperating from the notion that California may have two bodies of law - one published and one not published,[30]  members of the legal community now began to vociferously articulate their reasons for opposing Rule 976 and most importantly, the Supreme Court's further censorship via the depublication procedure.

III. Problems with Depublication

     The second section of this paper will now explore the critical problems and threats to judicial integrity noted by members of the legal community with respect to the practice of depublication since the 1970's.

     The early 1970's confusion surrounding the citation of unpublished opinions, was obviated by the Judicial Council's adoption of Rule of Court 977 in 1974 which prohibited the use of opinions not certified for publication. Such cases "shall not be cited or relied on by a court or a party..."[31]  Prior to the adoption of Rule 977, many legal scholars had argued extensively in favor of the usage of both published and unpublished case law : "What goes on in the courts is public business, and therefore unpublished appellate opinions - whether cut and dried or not- which contain any matters that arguably provide insight into the judicial process should be freely citable."[32] 

     Simultaneous with the Judicial Council's new prohibition against the citation of unpublished appellate opinions was the proliferation of depublished case law by the California Supreme Court. What began as a troubling phenomenon in the early 1970's, depublication continued to climb at an alarming rate. The Court, under the stewardship of Chief Justice Rose Bird, chose to depublish more that 550 cases during the late 70's and early 80's. 1987 marked the first year for Malcolm Lucas as Chief Justice. It also registered the highest number (126), up and until that date, of Court of Appeal opinions depublished in a single year.[33] 

     Legal scholars and jurists have bemoaned the use of depublication since its inception. The following discussion represents four of their key areas of argument against the California Supreme Court's use of depublication.

1) The Absence of Articulated Reasoning

"Depublication exceeds the legitimate judicial function, since it involves making law without deciding a case."[34] 

Jurists have complained that the lack of public hearings or written opinions to accompany orders for decertification creates great uncertainty throughout the legal community. "Lawyers and judges are left with no clue as to the reason for depublication [and as such], how do they know what to avoid in the future?"[35]  Former Supreme Court Justice Joseph R. Grodin conceded that orders for depublication often "leave the parties and the public without [judicial] guidance."[36] 

     Some scholars described the process as tantamount to "censorship."[37]  Further confusion arises when lawyers and judges firmly believe that the depublished appellate opinions clearly met the criteria for publication under Rule 976(b).[38]  Instead of providing us with precedence and guidance, the absence of articulated reasoning for the Court's decision to depublish adds confusion and suspicion of a "pruning"[39]  of the law to the shape of the Supreme Court's will. Numerous attempts have been made over the last 20 years to provide for an amended Rule of Court which would address these problems. For example, a 1978 draft proposal by the Santa Clara County Bar Association suggested that the order for depublication could be accompanied by an "explanatory statement [and both] shall be citable."[40]  The consideration of this and all subsequent proposals were refused by the Supreme Court. To date, these problems remain.

2) The Cognoscenti

     The cognoscenti, meaning 'those who are well-informed,' refers to appellate attorneys who make it their job to track and monitor the depublication decisions of the Supreme Court.[41]  With the Court now depublishing more appellate court decisions than it is publishing its own opinions, insiders closely observing trends in published and depublished case law,[42]  have secured an advantage over opposing counsel who is not so initiated. This "specialist-insider" problem was articulated as early as 1973.[43]  By the late 1980's, the strategic importance of the cognoscenti had become evident. These appellate attorneys had by now become specialized in the art of "lobbying"[44]  the Court to decertify opinions which would, if left on the law books, adversely effect their clients. "Institutional litigants, such as insurance companies are well represented by [these] knowledgeable appellate lawyers."[45]  Critics decry the ability of such third parties i.e., those not party to the litigation, "to prevail upon the Supreme Court to 'censor' opinions contrary to their special interests."[46]  The cognoscenti communicate their clients' positions by filing amicus letters with the court. Critics maintain that "the filing of [such] amicus letters requesting depublication has emerged as one of the most effective yet covert ways of molding California law."[47]  Observers have even more vociferously commented that this sanctioned form of judicial lobbying "abuses separation of powers by foisting legislative - if not executive- processes onto judicial functions."[48] 

     Today, the discomfort felt about the cognoscenti and their lobbying techniques remains controversial and unresolved. Repeat players,[49]  with ample resources, continue to influence the Court. The cognoscenti's job is to prevail their will upon the Court. Here, the true "beauty" of depublication lies in its secrecy - the absence of public scrutiny. Without a public hearing, the law simply disappears. It thus appears that the sum total impact of depublished California case law will never be quantifiable.

3) Efficiency, But At What Cost ?

     Restricting appellate court published opinion was heralded in the early 60's as a solution to curtail burgeoning repetitive case law. Early critics decried the drastic amputative quality of this approach fearing that in addition to the potential loss of important cases of novelty, eliminating cases which "present no new issue of law"[50]  was equally precarious, for in a common law democratic society, "it is the frequency with which issues arise [which] is the measure of their importance."[51]  Moreover, early scholars in the 1970's were appalled that the California Bar and Judicial Council had endorsed rules which placed judicial efficiency ahead of justice: "Inefficiency of judicial operations is certainly not a desirable objective; it may, however, be a price worth paying if it buys or helps to buy individual liberty."[52] 

     Modernly, the tremendous backlog of cases at the Supreme Court has encouraged the proliferation of depublication due to the simplicity and efficiency of the procedure.[53]  Given the Court's calender and time constraints, it is often easier to depublish a case rather than grant a motion for review. Yet in the name of efficiency, "some experts say the Justices have issued rulings that have eliminated entire classes of complaints from the court system."[54]  Former Supreme Court Justice Kauffman, bemoaned this occurance: "If you get so efficient, you're not providing any justice - and then what good is the system?"[55]  Despite such complaints both on and off the Court, it appears that the efficiency of the mechanics of depublication will continue to out way any consideration by the Court to curtail its use.[56] 

4) The Loss of Dissent: "A Facade of Harmony"[57] 

While the ideal judicial environment would be one removed from politics, the California Supreme Court always seems to find itself steeped in it. Judicial appointments flow from the Governor's office and as such, judicial proclivities tend to reflect the political persuasion of that office. Yet while it can be said that the liberal Bird Court was pro-consumer and the conservative Lucas Court pro-business, the distinctions were not so cut-and-dry. With respect to depublication, Chief Justice Bird deplored its use[58]  while Malcolm Lucas embraced it as a tool for "shaping"[59]  the law.

     Critics have watched politics play a key role in depublication. During the Lucas Court, those appellate courts with the highest number of democratic appointees experienced the highest number of depublished opinions.[60]  Not only did Chief Justice Lucas come to enjoy uniformity of opinion on the Supreme Court,[61]  but thanks to the " lesson" of depublication, his appellate courts in time, came into line as well, as their number of opinions certified for publication plummeted.[62] 

     Today, only 7% of appellate court opinions become certified for publication. Fearful of the prospects of depublication, "many appellate court justices wonder: 'why bother to carefully craft an opinion that might never see print.'"[63] 

     Critics have decried the use of depublication as "a device to suppress dissenting views."[64] 

     Critics have also cited the Supreme Court's policy of ignoring its own Rule of Court. Rule 976(b) requires that cases which "criticize an existing rule" be certified for publication. The Court instead "frequently depublishes such opinions, leaving no citable trace of disenchantment."[65] 

     The loss of dissent in the Supreme Court and Courts of Appeal has been much lamented. Critics claim that the appearance of law in California is "gravely misleading"[66] for we have lost the judicial diversity of opinion vital to our democratic process. The value of dissent lies primarily in its legacy to future generations, for it can be "an appeal to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have betrayed."[67] 

IV. Solution Proposals for the Problem of Depublication

Having examined extensively many critical problem areas surrounding the depublication protocol, this paper will now review several solution proposals discussed throughout the legal community.

     Scholars had predicted as early as 1976, that the computer revolution would one day obviate the need to curtail publication of case law, which was then growing at a rate of "Malthusian proportion."[68]  CD Rom technology has demonstrated that a lack of library space is no longer an issue.

The Supreme Court's own efforts to address the depublication criticisms, has been short-sighted and half-hearted.[69]  All of the Court's attempts to suture the problems failed[70]  in that they never resolved the underlying fundamental problems concerning the absence of judicial guidance and lack of public scrutiny.

     Several Justices are conscious of the short-comings and failures associated with depublication and as such have expressed "widespread dissatisfaction with the process."[71] They claim that the tremendous back-log of cases combined with the entrenched "bureaucourt"[72]  mentality of a permanent court staff, has left the Supreme Court little room to reflect on renovating its procedures. As Justice Kaus laments, "we've become traffic cops and editors."[73] 

     Many Justices have suggested a replacement for depublication : summary dispositions, which are brief opinions that would affirm or reverse lower court decisions while providing short statements of reasons. As such a proposal carries a provision for articulated reasoning, it has enjoyed considerable support in the judicial community.[74] 

     In as much as depublication is a constitutionally entrusted procedure, a constitutional amendment would be required to change the protocol as previously suggested or to eliminate it entirely. Many members of the legal community would look upon elimination of depublication via constitutional amendment as a drastic maneuver. Modification proposals, such as that put forward by the Santa Clara County Bar Association in 1978, seem to resolve the essential issues by merely adequately amending the Rules of Court.[75]  Here, depublication is maintained but explanatory opinions accompanying the order to depublish, must be submitted; after which both the order and opinion become citable. This proposal would inject judicial discourse and legitimacy into the protocol. No longer confined to oblivion, depublishd cases could now find their final resting place in the proper realm of stare decisis.

     Lastly, the option to eliminate depublication entirely must also be considered. It has been argued that "the U.S. Supreme Court and the high courts of virtually every other state manage quite well leaving the lower court opinion intact for future comparison."[76]  The following quotation further underscores the widespread support behind the elimination of this procedure:

"Why not leave published Court of Appeal opinions alone?

     The opinions are selected for publication by distinguished appellate courts, under the criteria of Rule of Court 976(b). Appellate opinions should be preserved, if for no other reason than to counterbalance the Supreme Court's views. Like dissenting opinions, they may one day show the right way. The Court's power to depublish these opinions is disrespectful to Courts of Appeal and detrimental to the law."[77] 

V. Conclusion

     To conclude, the "imperial judiciary"[78]  which makes up the components of the California Supreme Court and its agencies is undermining our democratic process by violating the separation of powers through its lawmaking tool of depublication. Furthermore, the much needed de-politicalization of our judiciary could be assisted by the adoption of a merit system such as the Missouri Plan. Such steps would ensure that judicial appointments were based on qualifications and not connections.[79] 

     Lastly, the citizens and legislators of California should consider options for correcting the disappearance of law which has resulted from depublication. For many individuals, legal specialists and the non-initiated alike, it is almost impossible to fathom that an obscure Rule of Court could have an impact so pervasive as to be socially unquantifiable. Moreover, it is anathema to a democratic, free society, to be subject to a feudal-like system of legal administration, which has the appearance of law but not the substance.

An amended Rule of Court addressing the need for written opinions and public scrutiny would lend legitimacy and accountability to an unpredictable and invisible procedure which can at best be presently referred to as arbitrary.


Baker, Paige Merrill "Depublication : The New Starchamber" Western State Law Review (Fall 1990) Vol. 18, no.1

Barnett, Stephen R. "The Bureaucourt" California Lawyer (Sept. 1996)

Bien, Elliot L. "Recoiling From Advance Sheets" California Lawyer (Feb. 1987)

Biggs, Julie Hayward "Decertification of Appellate Opinions : The Need For Articulated Judicial Reasoning and Certain Precedent In California Law" Southern California Law Review Vol. 50 no. 6 (Sept. 1977)

Biggs, Julie Hayward "Censoring the Law In California : Decertification Revisited" The Hastings Law Journal Vol. 30 (1978-1979)

California Rules of Court, 1998 "Division III - Rules For Publication of Appellate Opinions" California Judicial Council

Chaing, Harriet "Decline of The Supreme Court" San Francisco Chronicle Nov. 16, 1993

Carrizosa, Philip "Making The Law Disappear" California Lawyer (Sept. 1989)

Grodin, Joseph R. "The Depublication Practice of The California Supreme Court" California law Review Vol. 72, no. 4 (July 1984)

Hager, Philip "Supreme Candor" California Lawyer (Dec. 1994)

Hager, Philip "A Friendly Appointment" California Lawyer (July 1994)

Kanner, Gideon "The Unpublished Appellate Opinion : Friend or Foe?" California State Bar Journal Vol. 48, no. 4 (July -Aug. 1973)

Seligson, Robert A. and Warnlof, John S. "The Use of Unreported Cases In California" The Hastings Law Journal Vol. 24 (1972-1973)

Silverman, Milton J. "The Unwritten Law - The Unpublished Opinion in California" California State Bar Journal Vol. 51, no. 1 (Jan.-Feb. 1976)

Uelmen, Gerald F. "Waiting For Thunderclaps" California Lawyer (June 1993)

Uelmen, Gerald F. "Mainstream Justice" California Lawyer (July 1989)

Uelmen, Gerald F. "Record Numbers" San Francisco Daily Journal July 22, 1998

Uelmen, Gerald F. "The Disappearing Dissenters" California Lawyer (June 1991)

Uelmen, Gerald F. "The Lucas Court : A First-Year Report Card" California Lawyer (June 1988)

Vago, Steven Law and Society Prentice Hall, New Jersey 5th ed. 1997

     Copyright Jean M. Bowler, 1998.

[1] Christian Dean 7/8/98 in-class discussion/Dominican College "Law &American Society" Return to Text

[2] 7/30/98 telephone interview with Gerald F. Uelmen, Professor of law at Santa Clara University School of Law. "California is the only state that permits the highest court to depublish opinions of the intermediate appellate courts without a full hearing on the merits." see also Uelmen, Gerald F. "Mainstream Justice" California Lawyer July 1989 pp. 40 Return to Text

[3] Grodin, Joseph R., "The Depublication Practice of the California Supreme Court" California Law Review Vol. 72, no. 4 July 1984 pp.514 see footnote 1. "Depublication is authorized by the California Constitution, article 6, sec.14 (1966), which provides that 'the Legislature shall provide the prompt publication of such opinions of the Supreme Court and Courts of Appeal as the Supreme Court deems appropriate....' " Return to Text

[4] Baker, Paige Merrill "Depublication : The New Starchamber" Western State Law Review (Fall 1990) Vol.18 no.1 pp 314 Return to Text

[5] Kanner, Gideon "The Unpublished Appellate Opinion: Friend or Foe?" California State Bar Journal (July-Aug. 1973) Vol. 48 No.4 pp 388. Return to Text

[6] Uelmen, Gerald F. "Waiting For Thunderclaps" California Lawyer (June 1993) pp 30. Return to Text

[7] 7/30/98 telephone interview with a former Supreme Court clerk - an apologist for depublication [Interview granted on condition of anonymity]. For contrasting viewpoint, see also Kanner, supra note 5 pp 446. Return to Text

[8]  7/30/98 telephone interview/Uelmen, supra note 2 (statistic only). Return to Text

[9] This is before the Supreme Court avails itself of depublication - the final number of published opinions being thus further reduced. Return to Text

[10] Hager, Philip "Supreme Candor" California Lawyer (Dec. 1994) pp 27. Here, Justices Grodin, Kaufman, Kaus and Panelli discussed their "widespread dissatisfaction with the depublication process." Return to Text

[11] California Rule of Court 976b outlines the standards for publication of opinions, the criteria for which has been met by many case opinions subsequently de-published by the Supreme Court. Return to Text

[12] Uelmen, Gerald F. "The Lucas Court: A First-Year Report Card" California Lawyer (June 1988) pp 33 and 96. Return to Text

[13] Vago, Steven Law and Society Prentice Hall, New Jersey 5th ed.1997 pp. 162-163. Return to Text

[14] Seligson, Robert A. and Warnof, John S. "The Use of Unreported Cases In California" The Hastings Law Journal Vol.24 1972-1973 pp 40. Return to Text

[15] Id Return to Text

[16] Id at 41 Return to Text

[17] Id at 42 Return to Text

[18] Id Return to Text

[19] Id at 42-43 Return to Text

[20] Id at 44 Return to Text

[21] Id at 46 Return to Text

[22] Id Return to Text

[23] Baker, supra note 4 pp 315 Return to Text

[24] Kanner, supra note 5 Return to Text

[25] Seligson and Warnlof, supra note 14 pp 37 & footnote #2 Return to Text

[26] Baker, supra note 4 pp 316 Return to Text

[27] Biggs, Julie Hayward "Decertification of Appellate Opinions: The Need For Articulated Judicial Reasoning and Certain Precedent In California" Southern California Law Review Vol. 50, No. 6 Sept. 1977 pp 1184. see also Grodin, supra note 3. Return to Text

[28] Id at 1185 Return to Text

[29] Id at 1200-1206 Return to Text

[30] Baker, supra note 4 pp 317 Return to Text

[31] California Rules of Court - Rule 977, adopted Jan. 1, 1974. Return to Text

[32] Kanner, supra note 5 pp 448 Return to Text

[33] Uelmen, Gerald F. "The Lucas Court: A First-Year Report Card" California Lawyer June 1988 pp 30 Return to Text

[34] Barnett, Stephen R. "The Bureaucourt" California Lawyer (Sept. 1996) pp 28 Return to Text

[35] Uelmen, supra note 33 pp 33 Return to Text

[36] Grodin, supra note 3 pp 521 Return to Text

[37] Biggs, Julie Hayward "Censoring the Law In California: Decertification Revisited." The Hastings Law Journal Vol. 30 1978-1979 pp 1583 Return to Text

[38] Kanner, supra note 5 pp 388-389; see also Uelmen, supra note 6 Return to Text

[39] Uelmen, supra note 33 pp 33 Return to Text

[40] Biggs, supra note 37 pp 1577 footnote #1 Return to Text

[41] Baker, supra note 4 pp 322-323 Return to Text

[42] Uelmen, supra note 2, telephone interview Return to Text

[43] Kanner, supra note 5 pp 390 and 436 Return to Text

[44] Biggs, supra note 37 pp 1580 Return to Text

[45] Uelmen, Gerald F. "Mainstream Justice" California Lawyer (July 1989) pp 40 Return to Text

[46] Biggs, supra note 37 pp 1583 Return to Text

[47] Carrizosa, Philip "Making The Law Disappear" California Lawyer (Sept. 1989) pp 65 Return to Text

[48] "Letter to the Editor" by G. Michael German. California Lawyer (Aug. 1993) pp 15 Return to Text

[49] Vago, supra note 13 pp 260 Return to Text

[50] Silverman, Milton J. "The Unwritten Law-The Unpublished Opinion In California" California State Bar Journal (Jan.-Feb. 1976) Vol.51, no.1 pp 34 Return to Text

[51] Id Return to Text

[52] Kanner, supra note 5 pp 447 Return to Text

[53] Telephone interview, supra note 7 Return to Text

[54] Chaing, Harriet "Decline of the Supreme Court" San Francisco Chronicle Nov. 16, 1993 pp A6 Return to Text

[55] Id Return to Text

[56] Telephone interview, supra note 7 Return to Text

[57] Uelmen, supra note 6 pp 31 Return to Text

[58] Carrizosa, supra note 47 Return to Text

[59] Uelmen, supra note 33 pp 96 Return to Text

[60] Uelmen, supra note 6 Return to Text

[61] Id Return to Text

[62] Id at 35 Return to Text

[63] Uelmen, Gerald F. "Record Numbers" San Francisco Daily Journal July 22, 1998 Return to Text

[64] Uelmen, supra note 6 pp 31 Return to Text

[65] Id Return to Text

[66] Id Return to Text

[67] Uelmen, Gerald F. "The Disappearing Dissenters" California Lawyer (June 1991) pp 36 quotation by : Chief Justice Charles Evans Hughs. Return to Text

[68] Silverman, supra note 50 pp 38 Return to Text

[69] Telephone interview, supra note 7. As this former clerk noted : "Why would they want to change the depublication rules...the system works for the Court!" Return to Text

[70] Over the years, 976 was amended and new Rules of Court (977,978,979) were added, along with their own subsets of corresponding amendments. See California Rules of Court - 1998 "Division III : Rules For Publication of Appellate Opinions" California Judicial Council pp 171-172 Return to Text

[71] Hager, supra note 10 Return to Text

[72] Barnett, supra note 34 pp 27 Return to Text

[73] Id Return to Text

[74] Hager, supra note 10 pp 28 Return to Text

[75] Biggs, supra note 40 Return to Text

[76] Uelmen, supra note 67 pp39 Return to Text

[77] Bien, Elliot L. "Recoiling From Advance Sheets" California Lawyer (Feb.1987) pp 42 Return to Text

[78] Vago, supra note 13 Return to Text

[79] Hager, Philip "A Friendly Appointment" California Lawyer (July 1994) pp 41 18 21