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Abstract: In Arizona, the supreme court exercises its power to depublish selected Court of Appeals' decisions pursuant to Rule 28(f) of the Rules of Civil Appellate Procedure and Rule 111(g) of the Rules of the Supreme Court. The Arizona Supreme Court enters these depublication orders without the benefit of any hearing and usually does not articulate any reasons for its action. The depublication order does not affect the result of the case and does not exposit law in any traditional sense - unless erasure is considered exposition. One can only speculate in the vast majority of cases why the lower court opinion was depublished and, accordingly, should not bind the lower courts, and whether the reasons for depublication relate to the supreme court's inability to agree on the precise basis for the lower court's error.
This essay examines the Depublication Rule, analyzing the basis for and traditional understanding of the rule and discussing the advantages and disadvantages of the depublication process. Several cases that have been depublished are analyzed in an attempt to discern any patterns or reasons for the orders in these cases. As this essay illustrates, depublication orders sow discontent in the judicial system and confusion among practitioners. There are continuing concerns regarding the practical effect of the depublished opinion upon lawyers' ethical and professional duties in representing clients. This essay also proposes several alternatives (short of banning the practice) that might be both less intrusive on the judicial role and be more practical.
Keywords: precedent, Depublication Rule, courts
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