De-Publishing Decisions

What do Slavians/Slawyers think about the US practice of courts deciding that their decisions will not be published, or to ‘de-publish’ decisions that have already been published? I came across a citation for a case like that, where the higher court decided, apparently, that the lower court’s decision should be de-published. The effect is that it is not to be cited as authority and is removed from official court reports.

The case is People v Wu, 235 Cal.App 3d 614, 286 Cal Rptr 69 (1991), (California Court of Appeal); order of depublication by California Supreme Court Jan 23,1992. The case involved the availability of a ‘cultural defence’ to a charge of murder against a woman who strangled her son then slit her wrists. The first level of appeal court said the trial court should have admitted evidence of cultural understanding of automatism. The Supreme Court may have been concerned about floodgates of such defence evidence.

I am not aware that this is ever done in Canada or England, or other common law jurisdictions. Is it? Should it be? Is this a useful function for a higher court, or should they always let the error speak for itself, once duly corrected by the appellate authority? Can a court make the decision about its own decision? That too happens in the US, I believe. See Cairo v CrossMedia Services, Northern District of California, 2005: http://www.internetlibrary.com/pdf/Cario%20CrossMedia.pdf.

Are we lacking a tool that would improve our case law, or are American courts improperly rewriting history?

Comments

  1. Altering history to pretend it never existed makes me shudder.

  2. The practice has been under attack in many parts of the U.S. recently too. A useful (if opinionated) site is http://www.nonpublication.com/.

  3. I hope that this practice does not become widespread. Yes, the appeal decision trumps the lower court’s, but most of the time, in order to understand the appeal decision, the reader must be able to refer to the lower court’s reasons. I thought the whole point of written reasons was to make justice “appear to be done”. This sets a dangerous precedent.

  4. John,

    I have long wondered about this peculiarity of U.S. jurisprudence. It reminds me of Humpty Dumpty’s argument with Alice: the decision means just what the court chooses it to mean, neither more nor less. To my admittedly biased eye, any “no publication” or similar rule is impossible to square with the principle of precedent, at least as we understand it in Anglo-Canadian common law. But perhaps a U.S. lawyer more familiar with the reasons for the rule might comment?

    There is an interesting paper surveying the history of the “no publication”/”no precedent” rule and recent modifications to it in the U.S. Federal Courts of Appeals on SSRN.

    Alex

  5. Such serendipity – this morning’s edition of Haaretz describes an attempt to depublish a ruling because of the impact on the parties’ privacy – which I know has been a long concern of Angela Swan’s.

    Interesting that the Israeli courts are onto that issue.

  6. You might find my paper dealing with the US no publication rule and related issues of interest: Everything old is new again: the proliferation of case law and whether there is a remedy

  7. Many readers will have a deeper understanding of the system and conventions of U.S. jurisprudence than I have, so comments and corrections on this point are welcome, but doesn’t publication in a law report offer precedential value not available to unpublished decisions – of which there are many more? That is, my understanding is that not a high proportion of lower court decisions are actually published (higher for first appellate, though), and, if a decision is published it does carry precedential value. One would think that the mere overturning of the first appellate decision on the grounds the higher court found objectionable would serve the purpose, though.

    Kim

  8. Personally, I have a serious issue with that. All court decisions should be available to the public. The public pays for the court system. It is there to serve them. This has serious consequences. What possible reason would one have to hide / not-publish a decision? How does that help the public good?

    I’m not a lawyer, but is there not the idea of ‘precedent’. Previous decisions are used as a basis of future similar decisions. This I think attempts to keep decisions fair and honest. Maybe that is why they don’t publish it?

    -mike

  9. See also Peter W. Martin “Online Access to Court Records – From Documents to Data, Particulars to Patters” Cornell Law School Legal Studies Research Papers Series, Paper 93, 2008. http://lsr.nellco.org/cornell/lsrp/papers/93/

  10. This issue has come up again with respect to the American case of Klein v. Amtrak. For more information, visit http://volokh.com/posts/1250722321.shtml.