Genealogy of a court opinion

Evolution in action

When The Legal Genealogist wrote about the U.S. Court of Appeals’ decision in the Google case two weeks ago, the citations to the text of the court’s decision were to a document called a slip opinion.1

And that prompted my friend and reader Rondina Muncy to ask the obvious question: “what is a ‘slip opinion’?”

Great question.

And one that calls for a broader answer, since a court decision can go through as many as four different phases and each phase has a different name — and might be cited a little differently.

1. Bench opinion

In some cases, an opinion from a court can be announced in a form known as a bench opinion.

Bench.opThe term bench in this context refers to the “seat of judgment or tribunal for the administration of justice; the seat occupied by judges in courts; also the court itself, or the aggregate of the judges composing a court, as in the phrase ‘before the full bench.’”2

This is the procedure followed by the U.S. Supreme Court, which explains:

On days that opinions are announced by the Court from the bench, the text of each opinion is made available immediately to the public and the press in a printed form called a “bench opinion.” The bench opinion pamphlet for each case consists of the majority or plurality opinion, any concurring or dissenting opinions written by the Justices, and a prefatory syllabus prepared by the Reporter’s Office that summarizes the decision. Bench opinions are printed at the Court, generally in 5 ½” x 8 ½” self-cover pamphlets.3

Other courts may use the term bench opinion to refer to a decision announced orally by the judge or judges in the case. More usually, however, other courts begin the decisional process with a written document called a slip opinion.

2. Slip opinion

The second step in the opinion process for the U.S. Supreme Court and the first step for most courts is called a slip opinion.

slipopinion-lgBy definition, it’s “a single judicial decision that is published as an individual paper following its issuance and in advance of its being incorporated into a volume of decisions.”4

A slip opinion is generally typewritten, not typeset, and these days is often posted at the court’s website the day it is issued by the court. An example of this would be the slip opinion in the Google case itself.5

At the U.S. Supreme Court, the process is more formal and its slip opinions are in fact typeset:

Several days after an opinion is announced by the Court, it is printed in a 6″ x 9″ self-cover pamphlet called a “slip opinion.” Each slip opinion consists of the majority or plurality opinion, any concurring or dissenting opinions, and the syllabus. It may contain corrections not appearing in the bench opinion. Slip opinion page proofs are sent to a commercial printing company under contract with the GPO,6 and the company prints the slip opinions in accordance with the Court’s specifications.7

The image you see here is a slip opinion — the slip opinion issued by the U.S. Supreme Court in the famous desegregation case of Brown v. Board of Education.8

3. Advance sheets

The next step is the publication of what are called advance sheets by most courts or preliminary prints by the U.S. Supreme Court.

ne2dadvanceIn general, “advance sheets are published between the announcement of the court’s decision and the decision’s incorporation in a bound volume of law reports”9 and they are “pamphlets containing recently decided opinions of federal courts or state courts of a particular region.”10

The image you see here, for example, is the cover of an advance sheet from the regional Northeastern Reporter, a collection of state court cases from courts in Illinois, Indiana, Massachusetts, New York and Ohio published by the West Publishing Company.

It’s at this stage — when these pamphlets are published — that a case gets the actual citation it will eventually have in the final print version of the official volume of reports for that jurisdiction or the unofficial reporter like the regional Northeastern Reporter. Up until this point, a case can only be cited by its name, its case number, the court and date of decision and the kind of opinion you’re looking at — such as Authors Guild et al. v. Google, Inc., No. 12-3200-cv, U.S. Court of Appeals for the Second Circuit, slip opinion, 1 July 2013. In the pamphlet form, it will get the citation it will be known as permanently, such as the trial court opinion in that case, Authors Guild et al. v. Google, Inc., 282 F.R.D. 384 (S.D.N.Y. 2012).

The U.S. Supreme Court calls this step its preliminary prints of its official reporter, the U.S. Reports:

The preliminary prints of the U.S. Reports are the third generation of opinion publication and dissemination. These are brown, soft-cover “advance pamphlets” that contain, in addition to the opinions themselves, all of the announcements, tables, indexes, and other features that make up the U.S. Reports. The contents of two or three preliminary prints will eventually be combined into a single bound volume. Thus, the title of each preliminary print includes a part number, e.g., Preliminary Print, Volume 545, Part 1. Prior to publication, all of the materials that go into a preliminary print undergo an extensive editing and indexing process, and permanent page numbers are assigned that will carry over into the bound volume. Copies of the page proofs to be published in a preliminary print are sent to a commercial printing company under contract with the GPO, and that company prints the pamphlets in accordance with the Court’s specifications.”11

4. Bound volumes

The final step is the publication of the bound volumes of the reporters.

640px-Unitedstatesreports“Cases appearing in advance sheets are subsequently published in bound volumes containing several past pamphlets, usually with the same volume and page numbers as appeared in the advance sheets.”12 Those are the books you see on all the library shelves.

What you may not realize is that — until those hardbound books are published — any court opinion can be edited and changed. As the U.S. Supreme Court explains:

The … final generation of opinion publication is the casebound set of law books entitled United States Reports. The opinions and other materials contained in the preliminary prints are republished in this series of books. Prior to publication, all of the opinions and other materials that make up each volume undergo a final editing and indexing process. The materials are then sent to a commercial printing company under contract with the GPO, and that company prints and binds the books in accordance with the Court’s specifications.”13

It’s for that reason that the Court issues this warning on its website: “Caution: Only the bound volumes of the United States Reports contain the final, official text of the opinions of the Supreme Court of the United States. In case of discrepancies between the bound volume and any other version of a case–whether print or electronic, official or unofficial–the bound volume controls.”14

The same is true for every court and every set of bound volumes: there may be differences between the wording that was first announced and the wording that appears in the final bound version — and the bound version always controls.


SOURCES

Image: Northeast Reporter advance sheet, courtesy Boston College Law Library
Image: US Reports volumes, courtesy Wikimedia user Coolcaesar, GNU Free license

  1. Judy G. Russell, “Google scores a win in digitization case,” The Legal Genealogist, posted 2 Jul 2013 (http://www.legalgenealogist.com/blog : accessed 16 Jul 2013).
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 126, “bench.”
  3. Information About Opinions,” U.S. Supreme Court (http://www.supremecourt.gov : accessed 16 July 2013).
  4. YourDictionary/Law (http://law.yourdictionary.com : accessed 16 July 2013), “slip opinion.”
  5. The Authors Guild et al. v. Google, Inc., No. 12-3200-cv, U.S. Court of Appeals for the Second Circuit, slip opinion, 1 July 2013, online at court website (http://www.ca2.uscourts.gov/ : accessed 1 July 2013).
  6. Government Printing Office.
  7. Information About Opinions,” U.S. Supreme Court (http://www.supremecourt.gov : accessed 16 July 2013).
  8. Brown v. Board of Education, 347 U.S. 483 (1954).
  9. YourDictionary/Law (http://law.yourdictionary.com : accessed 16 July 2013), “advance sheets,” citing Webster’s New World Law Dictionary (Hoboken, NJ : Wiley Pub., 2010).
  10. The Free Dictionary (http://www.thefreedictionary.com : accessed 16 July 2013), “advance sheets.”
  11. Information About Opinions,” U.S. Supreme Court (http://www.supremecourt.gov : accessed 16 July 2013).
  12. The Free Dictionary (http://www.thefreedictionary.com : accessed 16 July 2013), “advance sheets.”
  13. Information About Opinions,” U.S. Supreme Court (http://www.supremecourt.gov : accessed 16 July 2013).
  14. Ibid.
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4 Responses to Genealogy of a court opinion

  1. Brenda says:

    Judy, at the end of the chain, might you add the legal digests that law offices subscribe to? Or at least they do in Canada. I’m unsure if it’s the same in the U.S. My daughter-the-lawyer is employed at this by a publishing company. As reference works to the law, clearly the digests are derivative material but I’m curious whether lawyers are known to use them as the first “go to” for legal decisions.

  2. More education about the law! Certainly I did not know these 4 versions of court opinions. Well, I guess I knew the bound volume version, because I once taught “persuasive writing,” including legal briefs, with my best friend who was a lawyer. (She once argued before the Supreme Court.) We had to look up opinions. But slip opinion or advance sheets — that I’ve never heard of. Here’s an instance where offline trumps online material, I suppose. Thanks!

  3. Rondina says:

    Judy, although I’m reading this in August, the information you have provided is quite helpful. Your post raised three more questions.

    First, how is it that the Northeastern Reporter covering Illinois, Indiana, Massachusetts, New York and Ohio is considered regional?

    Second, except for light editing and the addition of numbering information beyond the case name, I would think that tampering with the actual opinion is a hanging offense and never happens. True?

    Third, this takes us through distribution of state and federal court decisions. What about federal or state appeals court decisions? I would assume the process is the same, but I would like to know for sure. Thank you.

    • Judy G. Russell says:

      (1) The publisher of the Northeastern Reporter, West Publishing Co. (now owned by ThomsonReuters), is the publisher of a whole series of what are called Regional Reporters, including Pacific, Northwestern, Southwester, Northeastern, Southern, Southeastern and Atlantic. You can see a map of the entire reporter system here — and no, I don’t really know why the area included in the Northeastern Reporter is non-contiguous unlike all the other reporters.

      (2) Never say never. People make mistakes all the time, which is why we’re all told to go to the source.

      (3) Actually, this does discuss one federal appeals court — the US Supreme Court — but yes, the system is exactly the same for appellate courts: slip opinion to advanced sheet to bound volumes. Only the names of the official reporters will change.

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