Litigation

Cal. Litig. 2019, Volume 32, Number 3

Is It Time for a Major Shift in Thinking About Under-Dublication of Court of Appeal Opinions in California?

By Justice Elizabeth A. Grimes and Sean M. SeLegue

Justice Grimes is an Associate Justice of the Second District Court of Appeal, Division Eight.

Sean M. SeLegue is an appellate partner at Arnold & Porter in San Francisco. Sean.SeLegue@ arnoldporter.com

Despite changes to the California Rules of Court in 2007 intended to increase the number of appellate opinions published, a strong anti-publication tendency persists among most California Courts of Appeal. Only about 9% of appellate decisions are published, leaving 91% of those decisions entirely off limits for citation in our state courts, with narrow exceptions generally of use only to the parties to the unpublished case. We think the time has come to consider the harm that "under-publication" causes. The old reasons for drastically limiting publication, which rested in part on the cost of publishing and distributing printed material before the internet existed, are no longer as persuasive as they once were.

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