I hate it when I do a Westlaw search for authority to tell a judge that he has the authority to do what both he and I know perfectly well he has the authority to do — I get twenty-six depublished cases. Obviously what I’m talking about has been handled by at least twenty-six other courts before this case, yet the appellate courts seem to not want me to be able to refer to something that’s a reasonably common practice.
Courts should act in the open and what they do should be public record. If the appellate court is following the rules, then there is no reason to hide that fact. If they are deviating from the rules, that is the foundation for making common law, for judicially crafting exceptions to or modifications of the rules.
Depublished cases represent a threat that the courts will apply laws in one case differently than they do in another. And they are very annoying to counsel who need to refer back to how courts have handled particular situations in the past, and then cannot do so because of the Orwellian depublication rule.
