Law Review Articles

Ken's History

The issues surrounding the process of nonpublication are best understood when one has an explanation of the fundamental components of the American legal system. This section is designed to give the reader an informative, brief background of the legal system with which nonpublication interfaces, and the laws that have been developed to create nonpublication.

Our legal system has evolved through hundreds of years of common law. Our courts interpret laws based on what has happened in similar situations. This is possible because when a court decides a case, there is a written record of not only what that decision is, but the reasoning behind it. In the case of appellate courts, this record is in the form of an opinion. When these opinions are different than those of the past, the "new" opinion sets a precedent which is to be followed by the courts in future, similar situations. This is a process known as stare decisis.

When a justice writes an opinion, and that opinion is published, it becomes possible to know what a law is, how it is being applied, and whether or not the interpretation of a law is in accordance with public beliefs. This adds strength and stability to the foundation of the entire legal system. Therefore, written opinions ensure the development of law by adding to the body of case law that stands as precedent.

This process remained uninterrupted in California until the creation of Rule of Court 976 in 1964, which stated that opinions may only be published in the Official reports if they met certain criteria. Ten years later, the Supreme Court adopted Rule of Court 977, which prohibited the citing of an unpublished opinion, except in very special circumstances. The following year, in 1975, Rule of Court 978 was adopted to allow any person the right to request the publication of an opinion not certified for publication. In 1990, Rule of Court 979, was adopted to let any person, including courts, request the depublication of a previously published opinion.

On this website we use the term nonpublication to describe all opinions that are not published as a result of California Rules of Court 976, 977, and 979.