Note – Judge Nullification: A Perception of Unpublished Opinions

Rafi Moghadam

Volume 62, Issue 5, 1397-1440

Back in 1974, the California Supreme Court took the ground-breaking step of creating an appellate rule that barred citation to unpublished opinions. The “no-citation rule” was designed to facilitate legal research by limiting the universe of citable cases. Over time, however, the rule has proven to be a mechanism for questionable discrimination against unpublished decisions. Unpublished appellate opinions are restricted supposedly based on characteristics shared by them—chiefly, unoriginal content—when in fact these cases often exhibit vibrant legal discourse. This Note reviews the no-citation rule from the ground up. The analysis begins with a comprehensive background, proceeds to test the legal basis for the no-citation rule, challenges misconceptions about the utility of unpublished decisions, and discusses changes in the circumstances upon which the no-citation rule was founded. Segregation of cases based on publication status, the analysis shows, is an unconstitutional practice that potentially casts the judiciary in bad light. The practice is at odds with the state’s judicial notice statute and the judiciary’s ethical obligation to maintain an appearance of fairness. Bringing an end to the no-citation rule, which enables discrimination against unpublished opinions, thus, is legally justified and ethically required.

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