Decisions, opinions and orders – what’s the diff?

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 as published or unpublished.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)

1 thought on “Decisions, opinions and orders – what’s the diff?

  1. And if you’d like to know what the article itself is all about, here’s its abstract:

    Empirical legal scholars have traditionally modeled trial court judicial opinion writing by assuming that judges act rationally, seeking to maximize their influence by writing opinions in politically important cases. To test such views, we collected data from a thousand cases in four different jurisdictions. We recorded information about every judicial action over each case’s life, ranging from the demographic characteristics, workload, and experience of the writing judge; to information about the case, including its jurisdictional basis, complexity, attorney characteristics, and motivating legal theory; to information about the individual orders themselves, including the relevant procedural posture and the winning party.

    Our data reveal opinions to be rare events in the litigation process: only 3% of all orders, and only 17% of orders applying facts to law, are fully reasoned. Using a hierarchical linear model, we conclude that judges do not write opinions to curry favor with the public or with powerful audiences, nor do they write more when they are less experienced, seeking to advance their careers, or in more interesting case types. Instead, opinion writing is significantly affected by procedure: we predict that judges are three times more likely to write an opinion on a summary judgment motion than a discovery motion, all else held equal. Judges similarly write more in cases that are later appealed, and in commercial cases, while writing less in tort and prisoner cases. Finally, jurisdictional culture is very important. These findings challenge the conventional wisdom and suggest the need for further research on the behavioral aspects of opinion writing.

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