Legal Research

De-Publishing Decisions

By John Gregory

What do Slavians/Slawyers think about the US practice of courts deciding that their decisions will not be published, or to ‘de-publish’ decisions that have already been published?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?

Full post as published by Slaw.ca on August 19, 2008 (boomark / email).