Brief citation 101

My post from yesterday about the incomplete and confusing (to me anyway) citations in numbered paragraph 3 of the Attorney General’s letter “Re: Physician Hospitals of America v. Sebelius, No. 11-40631 is, by far, our most-read posting on this blog.  Now that the mystery about the cites has been solved (they are in fact citations to Solicitor General briefs and we now have copies of all four of them, copies supplied to us by the Department of Justice), I’ve taken down the post to prevent my confusion from spreading to others.   But for our readers who might be new to legal research and legal citation, let me offer a few definitions from one of my most favorite reference books, Fox, Elyse H. The Legal Research Dictionary: From Advance Sheets to Pocket Parts. 2nd ed. [Chapel Hill, N.C.]: Legal Information Services, 2006.

First, brief. 

A document submitted to the court by a party to the litigation to persuade the court to accept a legal proposition advanced by that party.  Briefs include a statement of jurisdiction, a summary of the case (2), history of the proceedings, statement of facts, a summary of the legal issues presented, summary of argument, argument, the relief requested, conclusion, and table of authorities. . . . An amicus brief is a brief submitted to the court by a non-party to the litigation. . . .

Next, citation and citation manual

A reference that unambiguously identifies the location of a specific opinion, statute, rule, law review article, or other type of legal publication. . . . Appropriate citation consists of the name or title of the source . . . Citation guidebooks dictate proper form.  Citations use standard formats to for identifying authority to lead the legal researcher to the source material quickly and accurately.  Citation format generally applies to all types of legal writing.  Also called cite.  See also citation manual, parallel citation, medium-neutral citation.

citation manual

A manual or guidebook that prescribes the standard form of citation to be used in citing authorities in legal writing.  Various citation manuals exist: probably the most widely used manual is A Uniform System of Citation (the Blue Book). . . .

So now, turning to the so-called bluebook, let us take a look at how it says briefs should be cited:

Rule 10.8.3 (p. 106):

In general, all court filings follow the same general form.  The full name of the document, as it appears on the filing, must come first, . . . followed by a pinpoint citation, if any.  . . .

. . .

Always include the docket number, whether parenthetically (when there is a reported citation) or as the citation (when there is no reported citation):

> Brief of Petitioner-Appellant at 48, United States v. Al-Marri, No. 03-3674 (7th Cir. Nov. 12, 2003).

. . .

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)