27 Stan. L. Rev. 791
                              Stanford Law Review
                                February, 1975
 
  *791 SOME REFLECTIONS ON THE CONTROL OF THE PUBLICATION OF APPELLATE COURT
                                   OPINIONS
 
                          J. Myron Jacobstein [FNa1]

 


                                       
  Copyright Copr. 1975 by the Board of Trustees of the Leland Stanford Junior


                        University; J. Myron Jacobstein


 


   Since the early 19th century American legal scholars have warned against   
the uncontrolled proliferation of law reports. An article published in 1824   
complained:
      [T]he multiplication of reports, emanating from the numerous collateral 
   sources of jurisdiction, is becoming an evil alarming and impossible long  
   to be born [sic]. It has of late increased enormously in every mode of     
   increase; the establishment of new tribunals; the increased habit of       
   reporting; and the prolix method adopted by the reporters. All these       
   reports are considered to be entitled to respect in a greater or less      
   degree, and they come upon us from every quarter in an overwhelming flood, 
   intermingled with digest, compends, and essays, without number. Such has   
   been this increase, that very few of the profession can afford to purchase,
   and none can read all the books which it is thought desirable, if not      
   necessary, to possess. By their number and variety they tend to weaken the 
   authority of each other, and to perplex the judgment. No system ought to be
   adopted, which should prevent our searching for the lights of jurisprudence
   in every quarter whence a ray can be derived, but we surely may avoid      
   something of the perplexity and confusion of false lights. [FN1]

More than a century and a half later a distinguished modern jurist in         
strikingly similar language repeated the complaint, saying:
      [U]nlimited proliferation of published opinions constitutes a burden and
   a threat to a cohesive body of law .... [T]here are limits in the capacity 
   of judges and lawyers to produce, research and assimilate the sheer mass of
   judicial opinions. These limits are dangerously near at present and in some
   systems may already be exceeded .... Common law in the United States could 
   be crushed by its own weight if present trends continue unabated. [FN2]
   
In fact, numerous articles [FN3] appeared subsequently in legal periodicals   
and bar association proceedings commenting on the problem. Nearly all *792    
reiterate the theme that the growing number of published court opinions is    
threatening to destroy our system of American jurisprudence. [FN4]
   
This article seeks to (1) summarize the problems associated with the flood of 
reported decisions and the proposals for the limitation of published opinions;
(2) summarize the opposition to such proposals; (3) examine why the dire      
predictions of collapse have not as yet been fulfilled; and (4) examine the   
effectiveness of the rules on publication of opinions implemented by the      
United States courts of appeals, and California Supreme Court.
                                       
           I. PROPOSALS FOR REDUCING THE VOLUME OF REPORTED OPINIONS
   Three methods have been consistently urged for the control of the number of
published opinions: (1) codification, (2) the writing of shorter opinions, and
(3) selective reporting.

A. Codification
   
The earliest recommendations for limiting the number of appellate court       
reports sought methods for the codifying of the common law in a manner similar
to that of the Justinian and Napoleonic Codes. Justice Story, for example,    
after warning of the "[c]alamity which threatens us, of being buried alive,   
not in the catacombs, but in the labyrinths of the law," [FN5] offered a      
solution:
      I know indeed of one adequate remedy, and that is by a gradual digest   
   under legislative authority of those portions of our jurisprudence, which  
   under the forming hand of the judiciary shall from time to time acquire    
   scientific accuracy. By thus reducing to a text the exact principles of the
   law, we shall, in a great measure, get rid of the necessity of appealing to
   volumes which contain jarring and discordant opinions; and thus we may pave
   the way to a general code, which will present ... the most material rules  
   to guide the lawyers .... [FN6]
   
Although similar appeals for codification [FN7] continued to appear for the   
hundred years following Justice Story's proposal, recent writers seldom *793  
mention codification as a solution, reflecting most likely the experience and 
history of the Restatements. [FN8]

B. Shorter Opinions
   
Concurrent with the criticism that too many opinions are being published has  
been the constant plea for shorter opinions. The argument is that if judges   
could be persuaded to be less prolix and more willing to place a premium on   
conciseness, a substantial part of the problem would be solved. [FN9] In      
recent years, however, there appears to have been less faith placed in this   
solution. Perhaps the realization has developed that not all judges can write 
opinions in the style of Oliver Wendell Holmes, Jr., as well as an awareness  
that self-constraint is the only means of enforcement. [FN10]

C. Selective Reporting of Opinions
   
Lord Coke, faced in 1777 with a total of roughly 30 volumes of reported       
decisions, warned judges not to report all decisions. [FN11] This admonishment
to avoid writing opinions for cases that do not make a substantial            
contribution to the body of the law has been repeated innumerable times.      
[FN12] It has been suggested that under this criterion three-fourths of the   
opinions presently published would remain unpublished. [FN13]
   
It is evident that if a court undertakes to adopt the selective publication of
its opinions, standards are necessary to determine which opinions should be   
published and which should not. [FN14] At least one set of standards for the  
publication of the appellate court opinions has been suggested. Under these   
*794 standards the court's decision is published if (1) the opinion lays down 
a new rule of law or alters or modifies an existing rule; (2) the opinion     
involves a legal issue of continuing public interest; (3) the opinion         
criticizes existing law; or (4) the opinion resolves an apparent conflict of  
authority. [FN15]
                                       
                   II. CRITICISM OF SELECTIVE LAW REPORTING
   Of the proposals discussed, the present consensus appears to be that       
selective reporting of opinions is the only effective means of solving the    
problems presented by excessive opinion writing. However, the view that there 
is no effective way of enforcing selective publication has frequently been    
expressed. The specter of private publishers publishing unreported decisions  
has always haunted the legal profession. It may be that any attempt to        
prohibit such publication would be unconstitutional. [FN16] While court       
opinions may be a matter of public record, courts appear to have the power to 
prohibit the citation of unpublished opinions. [FN17]
   
While the majority of the bar undoubtedly favors the limitation of published  
court reports (at least as measured by the literature on this subject), a     
number of writers have warned that selective law reporting has its own        
shortcomings. The objections raised may be classified in four categories: (1) 
cases are more likely to be decided correctly on the law when there are       
written opinions; [FN18] (2) the writing of opinions is a means of convincing 
the bar, litigants, and the public that the cases have been carefully         
considered, and thus results in increased respect for the courts; [FN19] (3)  
the law becomes more certain and understandable when there are written        
opinions; [FN20] and (4) there is no satisfactory method of selecting which   
cases are to be published and which omitted. [FN21]
   
Until recently there has been no way to assess the potential success of       
efforts to limit the number of decisions. However, the United States courts of
appeals and the California Supreme Court have recently implemented rules      
limiting publication of opinions. These rules now afford an opportunity *795  
for testing the effectiveness of selective reporting in solving the problems  
created by the indiscriminate publication of opinions.
                                       
   III. WHY THE PREDICTED COLLAPSE OF THE JUDICIAL SYSTEM BY UNLIMITED COURT
                         OPINIONS HAS NOT YET OCCURRED
   The literature on court reporting is abundant with dire predictions related
to the flood of opinions. It is interesting to ponder why our judicial system 
still functions, with court opinions still performing a dominant role. It is  
also puzzling to note that the American Bar Association, after forming a      
Committee on Law Reports and Digests in 1884 which then issued annual reports 
for nearly 65 years, abolished this Committee in 1948. In a similar pattern,  
the number of articles on the subject published in legal periodicals has      
declined dramatically during the past decade and a half. Nearly all the       
articles now published are written by judges or are reports of the federal and
various state judicial councils. It is clear that the impetus has changed from
the lawyer's complaints of too many books to buy and shelve to that of judges 
and court administrators concerned with the rapidly growing number of docketed
cases.
   
But what seems puzzling at first glance becomes less so as one searches for   
the reasons for this apparent drop in interest by lawyers. A part of the      
answer can perhaps be found in a change in the structure of the legal         
profession and in the response of private lawbook publishing companies. The   
last 20 years have seen rapid growth, not only in the number of lawyers, but  
also in the development of specialization among individual practitioners and  
within law firms. The number of sole practitioners has been declining and the 
size of large firms increasing. [FN22] This growth of specialization among    
lawyers has been reflected in the greater availability of specialized subject 
court reports, a phenomenon not always noted by those concerned with the      
volume of published judicial opinions. The number of such sets is astonishing.
It has recently been estimated that sales of special subject reporters, such  
as those by the Commerce Clearing House, Prentice-Hall, and the Bureau of     
National Affairs, now approximate those of the traditional court reports, such
as those by the West Publishing Company and the Lawyers Co-operative          
Publishing Company. [FN23]
   
Lawyers who are primarily involved with corporate law, taxation, and the      
regulated industries are really not concerned about the expanding number of   
volumes in the National Reporter System, or of their state reports. Their     
needs for access to cases in their fields of practice are met by the *796     
specialized subject reporting services. The fear so frequently expressed in   
the past that lawyers would not be able to find space in their libraries for  
all of the reports is not applicable to this group. It is rather those lawyers
whose practice is primarily involved with criminal law, landlord-tenant,      
domestic relations, and other areas common to the sole practitioner or the    
average small firm that must still rely on the standard sets of court reports.
                                       
 IV. THE EFFORTS TO LIMIT THE PUBLICATION OF APPELLATE COURT OPINIONS BY COURT
                                     RULE
 
A. United States Courts of Appeals
   
The soaring caseload of the United States courts of appeals has long been of  
concern to those interested in court administration. It has been predicted    
that the total caseload for the 10 federal circuits will have increased from  
nearly 4,000 in 1960 to nearly 14,000 by 1975. [FN24] The writing of opinions 
has been ranked as the second most significant cause of delay in appellate    
courts. [FN25] The impact of the growing caseload on the courts can best be   
ascertained by reading the poignant opinion [FN26] of Chief Judge Brown of the
Fifth Circuit, in which he explains the reasons for the adoption of a rule    
limiting the number of published opinions. [FN27]
   
The Fifth Circuit has attacked this problem through its adoption of Rule 21.  
Under this rule the court may determine that when certain criteria are met and
when an opinion would have no precedential value, an order or judgment may be 
affirmed or enforced without an opinion. In similar fashion pursuant to a     
recommendation by the Judicial Conference, all of the circuits have adopted   
new guidelines for the publication of their opinions. [FN28] While the wording
differs in each circuit, basically each provides for three possibilities: (1) 
Opinion: When a pending case meets the standards set by the Standards for     
Publication of Court Opinions it will be designated "For publication"; (2)    
Memorandum: A written reasoned disposition of a case not intended for         
publication; (3) Order: Any other disposition by the court. Any disposition   
which is not for publication will not be regarded as a precedent.
   
In some circuits the decision to publish is made by the writer of the opinion,
in others by a majority of the panel. Provision is also made either for       
mandatory designation for publication, when an opinion has been published *797
by the district court or an administrative agency, or for the periodical      
listing of unpublished orders in the Federal Reporter. [FN29] The impact of   
these new rules is revealed by an examination of the statistics for the first 
11 months of 1973, when 2,708 cases were decided without the writing of       
opinions, 1,477 case opinions were written but not published, and 4,563       
opinions were published. [FN30]
   
While it cannot be denied that these new rules have effectively reduced the   
number of opinions judges have to write and the number of published opinions  
available for precedential purposes, the impact of these rules on the         
administration of justice must also be considered. Has the reduction of the   
burden on the judges created other problems? A recent U.S. Supreme Court case 
may already signal one danger of the absence of a written opinion. In Taylor  
v. McKeithen [FN31] the Court had before it a case involving the 1970         
reapportionment of the Louisiana legislature. The federal district court had  
adopted a plan of its special master over a counterplan of the state attorney 
general. The court of appeals under its new rules reversed without opinion.   
The Supreme Court granted certiorari and then vacated the judgment below. In  
so doing, the Court noted that the court of appeals may have based its        
decision on the belief that the district judge's action in adopting the       
special master's plan was unconstitutional. Such a decision would raise a     
substantial federal question. Without, however, a court of appeals' opinion   
setting forth its reasoning, the Supreme Court felt the need to vacate the    
judgment below because "this record does not fully inform us of the precise   
nature of the litigation and we have not had the benefit of the insight of the
Court of Appeals ...." [FN32]

B. California Supreme Court
   
Since 1964, when the California Supreme Court adopted Rule 976, "Publication  
of Court Opinions," [FN33] the California courts of appeal opinions have      
received limited publication. Under Rule 976 the California Supreme Court     
could order an opinion not published. In 1972, this rule was modified and     
stricter standards for the publication of opinions adopted. Under the modified
rule, no opinions are to be published unless they conform to *798 the criteria
set forth. In addition, the courts of appeal must affirmatively indicate that 
an opinion is for publication. [FN34] Since 1964, 58 percent of the cases of  
the California courts of appeal have not been reported. This figure increased 
to 71 percent in 1971. [FN35] However, since no rule forbade citing unreported
cases, this practice became prevalent and indeed advantageous to some         
attorneys. [FN36] The California Supreme Court then made the next logical move
when it adopted Rule 977, [FN37] which prohibits the citation of unpublished  
opinions of the courts of appeal.
                                       
                                 V. CONCLUSION
   The unrest among lawyers opposed to the limitation of appellate court      
opinions, nevertheless, continues. A proponent of the rules has argued        
recently that the substance of the rules is necessary for "... the            
preservation of stare decisis as a workable doctrine, [with] fairness,        
reliability and efficiency ...." [FN38] An opponent illustrates the contrary  
view through illustration of a case in which a used car dealer was convicted  
for "spinning back" odometers on cars he sold. [FN39] The court of appeal     
affirmed but did not publish the opinion. The author emphasizes the potential 
usefulness that the publication of this opinion would have had as a deterrent 
to such practices by used car dealers. He then quotes Professor Phillip B.    
Kurland's statement that "efficiency measured solely by productivity is as    
likely to be destructive of the functions of law in a democratic society as   
the inefficiency it replaces ...." [FN40] A recent poll of Los Angeles lawyers
on their attitudes toward the new practice of restrictive publication of court
of appeal opinions revealed that those polled voted two-to-one against the    
practice and in favor of the publication of all court of appeal written       
opinions. [FN41] A bill [FN42] introduced into the California Legislature that
would require all opinions to be published caused heated arguments before the 
Senate Judiciary Committee. [FN43] Another example of a negative reaction to  
the failure to publish an opinion occurred when the California court of appeal
held that traffic *799 violators have a statutory right to representation by  
an attorney. [FN44] A columnist in the Palo Alto Times noted the financial    
impact this ruling could have on local government finances and quoted the     
lawyer for the successful appellant as saying, "I'm sure that's why the judges
wouldn't have their opinion published." [FN45]
   
It is evident that the solution to the problem of the proliferation of        
appellate court reports has not as yet been found. The position of those      
opposed to the selective writing and publication of appellate decisions has   
some merit. Yet it is difficult to deny the reasoning of those who maintain   
that the continued publication of all opinions "constitutes a burden and a    
threat to our cohesive body of law." [FN46] Essentially two separate issues   
require consideration. The first is the increasing number of cases being heard
by appellate courts. If we assume for the moment a sufficient number of judges
are available to alleviate the time pressure on each judge in his writing of  
opinions, then at least this issue could be eliminated. The ever-increasing   
number of written decisions, however, would remain. The problem would now be  
the same as that which troubled the bar in earlier years--the concern over too
many bound volumes of reports and the excessive time needed in researching the
law. Nonetheless, this concern may be more amenable to solution. As noted in  
Part III of this Article, the increasing availability of subject court reports
is already serving the needs of many lawyers. A further expansion of this     
method of court reporting could undoubtedly be undertaken where needed. Other 
means for the more efficient publication of court reports are also available, 
such as the use of microforms, computer data banks, and other techniques now  
being perfected by information scientists.
   
Rather than continuing the battle over the reporting of decisions, our efforts
should be devoted to the following three concerns: convincing the Congress and
the state legislatures that more judges are needed; achieving an agreement    
that only some opinions shall serve as precedents, with others available for  
persuasive purposes; and stimulating a willingness by the courts to explore   
and utilize new methods to make all decisions of our appellate courts         
available for consultation by any interested party. Until then we remain in   
danger of repeating, by design or otherwise, the behavior of the Roman Emperor
Gaius Caligula, who passed many new laws that were never published. When the  
people complained, he "had the law posted up, but in a very narrow place and  
in excessively small letters, to prevent the making of a copy." [FN47]

[FNa1]. B.A. 1946, Wayne State University; M.S. 1950, Columbia University;    
J.D. 1953, Chicago--Kent School of Law. Professor of Law and Law Librarian,   
Stanford University.

[FN1]. Bliss & White, The Common Law, 10 N. AM. REV. (n.s.) 411, 433 (1824).

[FN2]. Joiner, Limiting Publication of Judicial Opinions, 56 JUDICATURE 195,  
196 (1972).

[FN3]. One author wryly noted that lawyers will soon need to concern          
themselves with exercising control over the number of articles devoted to     
reducing the number of judicial opinions. O'Connell, A Dissertation on        
Judicial Opinions, 23 TEMP. L.Q. 13, 14 n.3 (1949).

[FN4]. Nearly all the literature on this subject is concerned with the writing
and publication of appellate court opinions. For a comprehensive analysis on  
the publication of trial court decisions in the federal system, see Vestal, A 
Survey of Federal District Court Opinions: West Publishing Company Reports, 20
SW. L.J. 63 (1966); Vestal, Publishing District Court Opinions in the 1970's, 
17 LOYOLA L. REV. 673 (1971); Vestal, Reported Federal District Court         
Opinions, Fiscal 1962, 4 HOUSTON L. REV. 185 (1966); Vestal, Reported Opinions
of the Federal District Courts: Analysis and Suggestions, 52 IOWA L. REV. 379 
(1966). It is also interesting to note that the Federal Bar Association of New
Jersey has recently announced a subscription service for the unreported       
decisions of the United States District Court in New Jersey.

[FN5]. Judge Story's Address, 1 AM. JURIST 1, 31 (1829).

[FN6]. Id.

[FN7]. There is no generally accepted definition of "codification." As used   
here, the term means a legislatively enacted law that becomes the primary     
source of authority and supersedes all previous law whether statutorily or    
judicially created. For a concise summary of the problem of defining          
codification, see L. SCARMAN, A CODE OF ENGLISH LAW? 4-7 (1966).

[FN8]. An account of the reception of the Restatements may be found in E.     
POLLACK, FUNDAMENTALS OF LEGAL RESEARCH 364-66 (4th ed. J. Jacobstein & M.    
Mersky 1973).

[FN9]. For articles supporting this position, see Report of the Special       
Committee on Reports and Digests, 2 A.B.A.J. 618 (1916); Dillon, Law Reports &
Law Reporting, 1886 A.B.A. REP. 257; Leach, The Length of Judicial Opinions,  
21 YALE L.J. 141 (1911); McComb, A Mandate from the Bar: Shorter and More     
Lucid Opinions, 35 A.B.A.J. 382 (1949); Warren, The Welter of Decisions, 10   
ILL. L. REV. 472 (1916); Winslow, The Courts and the Papermills!, 10 ILL. L.  
REV. 147 (1915). But see Peterson, Court Opinions and Reports, 86 CENT. L.J.  
428 (1918).

[FN10]. This, indeed, was recognized in a recent report of the Committee on   
Judicial Opinions of the Pennsylvania Bar Association, which concluded: "The  
subject of the style of judicial opinions was discussed at some length in     
Committee sessions, but it was finally decided that it would serve no useful  
purpose to attempt to make recommendations concerning literary style to be    
employed by individual judges in writing opinions, although it was recognized 
that literary style may affect the length as well as the readability of       
opinions in many instances." Haas, Some Comments on the Report of the         
Committee on Judicial Opinions, 35 PENN. B. ASS'N Q. 365, 366 (1964).

[FN11]. 3 COKE'S REP. iii (1777). The 30-volume estimate is derived from      
Warren, supra note 9, at 472.

[FN12]. For articles supporting this position, see, e.g., ANNUAL REPORTS OF   
THE COMMITTEE ON REPORTS AND DIGESTS OF THE A.B.A. (1884-1948); Opinions of   
Courts: Should Number Published Be Reduced?, 34 A.B.A.J. 668 (1948); Davis,   
The Case for the Case Lawyer, 3 MASS. L.Q. 99 (1916); Winters, Reducing the   
Volume of Published Opinions, 20 FLA. L.J. 250 (1946).

[FN13]. Warren, supra note 9, at 475.

[FN14]. The suggestion for the selective publication of opinions has always   
raised the question as to who should decide which opinions to publish--the    
courts or someone else, such as a panel of lawyers. See, e.g., Current Topics,
15 CENT. L.J. 41 (1882); Winters, supra note 12. As will be seen in Part IV,  
current practice is to have the decision made by the court.

[FN15]. COMMITTEE ON USE OF APPELLATE COURT ENERGIES OF THE ADVISORY COUNCIL  
ON APPELLATE JUSTICE--STANDARDS FOR PUBLICATION OF JUDICIAL OPINIONS 15-17    
(Federal Judicial Center Research Series No. 73-2, Aug. 1973) [hereinafter    
cited as STANDARDS FOR PUBLICATION].

[FN16]. See O'Connell, supra note 3, at 16.

[FN17]. In Jones v. Superintendent, Virginia State Farm, 465 F.2d 1091, 1094  
(4th Cir. 1972), it was held that the courts of appeals' screening procedure  
and disposition by unreported memorandum decisions, though imperfect, accorded
with due process and the courts' duty as article III judges.

[FN18]. Cf. Jenkins, Courts: Sufficiency of Opinions, 9 OKLA. L. REV. 171     
(1956).

[FN19]. "Another office of the opinion is to give assurance to a litigant that
his appeal has received fair consideration." Id. at 173.

[FN20]. "The function [of the court] is not declaring justice between man and 
man, but of settling the law. The court exists, not for the individual        
litigant, but for the indefinite body of litigants whose causes are           
potentially involved in the specific course at issue. The wrongs of aggrieved 
suitors are only algebraic symbols from which the court is to work out the    
formula of justice." CARDOZO, JURISDICTION OF THE COURT OF APPEALS OF THE     
STATE OF NEW YORK <section> 6 (2d ed. 1909).

[FN21]. Winters, supra note 12, at 252.

[FN22]. Cf. Hazard, Rethinking Legal Ethics (Book Review), 26 STAN. L. REV.   
1227, 1229 (1974).

[FN23]. Sandza, Lawbook Publishing: A $145-Million-a-Year Business, JURIS     
DOCTOR, Feb. 1974, at 31.

[FN24]. NLRB v. Amalgamated Clothing Workers, 430 F.2d 966, 969 (5th Cir.     
1970).

[FN25]. STANDARDS FOR PUBLICATION, supra note 15, at 1.

[FN26]. NLRB v. Amalgamated Clothing Workers, 430 F.2d 966 (5th Cir. 1970).

[FN27]. The question whether a written opinion is required must be kept       
separate from the question of publishing opinions after they are written. See 
STANDARDS FOR PUBLICATION, supra note 15, at 2.

[FN28]. FEDERAL JUDICIAL CENTER, ANNUAL REPORT 6 (1973). Each circuit has     
issued a Plan for Publication of Opinions. These are on file at the Stanford  
Law Library.

[FN29]. See, e.g., 488 F.2d 1056 (5th Cir. 1974). The importance of this      
provision cannot be overstated. The danger of having a published trial court  
opinion followed by an unpublished appellate court opinion is obvious. Several
years ago Professor Howard Williams of the Stanford Law School called to my   
attention that the opinion In re Estate of Humphrey, 254 F. Supp. 33 (D.D.C.),
rev'd sub nom. Humphrey v. Tolson, 384 F.2d 987 (D.C. Cir. 1966), had been    
reversed by an unpublished order of the court of appeals. It was not until an 
inquiry was made of the West Publishing Company that the court released the   
order for publication.

[FN30]. Increase Continues in Federal Appeals Courts' Caseload, 60 A.B.A.J.   
566 (1974).

[FN31]. 407 U.S. 191 (1972).

[FN32]. 407 U.S. at 194. For a similar decision in a state court, see         
Rosenthal v. Scott, 131 So. 2d 480 (Fla. 1961).

[FN33]. CAL. SUP. CT. (CIV.) R. 976 (West 1964), as amended (West Supp. 1974).

[FN34]. Id.

[FN35]. Seligson & Warnlof, The Use of Unreported Cases in California, 24     
HASTINGS L.J. 37 (1972).

[FN36]. The Compendium, May 1973 (Poopsheet from Courtroom Compendium). This  
is a service reporting California cases on search and seizure. The editor,    
commenting on revised Rule 976, noted that "subscribers from all over the     
state report winning case after case in trial courts by citing unpublished    
opinions."

[FN37]. CAL. SUP. CT. (CIV.) R. 977 (West Supp. 1974).

[FN38]. Seligson & Warnlof, supra note 35, at 53.

[FN39]. Kanner, The Unpublished Appellate Opinion: Friend or Foe?, 48 CAL. ST.
B.J. 386 (1973). See also Publish or Perish: The Destiny of Appellate Opinions
in California, 13 SANTA CLARA LAW. 756 (1973).

[FN40]. Kurland, The Lord Chancellor of the United States, Trial, Dec. 1971,  
at 11.

[FN41]. Los Angeles Daily J., Jan. 8, 1974, at 1, col. 4.

[FN42]. Calif. S. 2246 (1974). This bill was amended on June 5, 1974 to       
provide for the publication of opinions not in the Official Reports in a new  
series to be called Civil or Criminal Memorandum Reports.

[FN43]. Los Angeles Daily J., June 14, 1974, at 1, col. 5. The Committee voted
13-2 against the bill.

[FN44]. Cal. Penal Code <section> 987 (West Supp. 1974).

[FN45]. Palo Alto Times, Sept. 27, 1973, at 22, col. 3.

[FN46]. Joiner, supra note 2, at 195.

[FN47]. SUETONIUS, THE LIVES OF THE TWELVE CAESARS 192 (J. Gavorse ed. 1931).

END OF DOCUMENT