Liberalized Standards for Publication of Appellate Opinions

Professor Martin jokingly pleaded with the Ninth Circuit and California Court of Appeal to “slow down last” week.  The California Court of Appeal issued 32 decisions in a 3-day span starting on May 29.

I know Professor Martin was reacting to a rather short-term spike, but could it be that the liberalized rule for publication, which only recently went into effect, is starting to show results?

Since April 1, 2007, publication of appellate opinions has been subject to more liberal standards of publication under rule 8.1105(c).  The changes are summarized by the advisory committee at p. 57 of its report.  They:

(a) Replace the presumption against publication with a presumption in favor of publication if the opinion meets one or more of the criteria specified in the rule;

(b) Clarify and expand the criteria that the Courts of Appeal and the appellate divisions of the superior courts should consider when deciding whether to certify an opinion for publication; and

(c)  Identify factors that should not be considered in deciding whether to certify an opinion for publication.

A press release from the Supreme Court last December also summarizes the changes and provides a comparison of the old and new rule, and quotes from the report in stating that the changes should:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

Whether a recent spike in opinions reflects these changes or not, we should certainly see an increase in the percentage of published opinions over time.

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