A reference question that comes up every now and then is “what’s the difference between a judicial opinion and a judicial decision.” That’s an easy one, thanks to Elyse H. Fox’s wonderful The Legal Research Dictionary: from Advance Sheets to Pocket Parts, Second Edition (I love this reference book!). She defines, “Opinion – Technically, the written statement of the court explaining its decision . . . “
Fuzzier to me has been the distinction between an order and an opinion. A new law review article, with an intriguing title, “Docketology, District Courts, and Doctrine,” by David A. Hoffman, Alan J. Izenman, and Jeffrey R. Lidicker, offers a really interesting analysis following an “historical detour” look at U.S. District Court publication. Here’s the opinion/order distinction they draw:
“The E-Government Act of 2002 changed this distribution system by requiring federal courts to post all of their ‘opinions’ on the website, regardless of whether the opinions were designated . . . as published or unpublished. The Judicial Conference defines ‘written opinion’ as ‘any document issued by a judge or judges of the court . . . that sets forth a reasoned explanation for a court’s decision.’ . . . The databases harvest such opinions and, after adding codes like Keycites, make them available for a fee.
“Thus in theory if a disposition is on Westlaw or Lexis, a judge has determined that it ‘sets forth a reasoned explanation for a court’s decision.’ If that modern disposition is not on Westlaw or Lexis, the judge has decided not to explain it fully. Texts that judges do not designate as opinions will remain unseen, except for those individuals who are willing to pay to access the docket, or come to the courthouse in person.”
“We are thus comfortable distinguishing between opinions and orders with a simple definition:
For our purposes, an ‘opinion’ is any judicial disposition on Westlaw or Lexis; an ‘order’ is any disposition that is not.”
85 Washington University Law Review 681, 693 (2007)