September 10, 2008
How much of a Supreme Court opinion is lifted from the winning brief?
Posted by David Zaring

Can you use plagiarism software to do legal research?  I've been exploring the question lately, and so have some others.  Pamela Corley has looked at relationship between the briefs filed before the Supreme Court and the ensuing opinions.  And plagiarism software, it turns out, is a good tool for that sort of comparison.

Her project is pretty neat.  As you might imagine for a very unbusy Court overloaded with law clerks, time, and amici, the Court didn't borrow too much from the party briefs when it writes its decision, at least for the opinions issued in the 2002, 2003, and 2004 terms.  The average overlap between opinion and winning party brief then was roughly 10%.  I bet the percentages are higher in the appellate courts, and especially in the district courts. 

Sometimes, however, the Court found winning briefs to be, shall we say, highly persuasive.  In one case, Justice O'Connor used 41% of a respondents' brief in her opinion, and in another, she used 33% of an appellant's brief.  Rehnquist and O'Connor were the justices most likely to borrow from the briefs (they comprised 14% WJR/11.5% SDO of the content of the justices' majority opinions authored during those three years, depending on respondent/appellant), Souter the least (7% either way).

Corley found that the justices are more likely to borrow from high quality briefs (proxied by a DOJ or DC return address), from ideologically compatible briefs (conservatives were more likely to use briefs advocating the conservative position), and from briefs in low-profile cases, or at least low-profile enough not to appear on the front page of the New York Times the day after the decision was handed down (which might just mean "statutory cases").

Now if she would only have broken down those DC addresses by Supreme Court litigation boutique, then we'd have some new league tables to report to you all and said boutiques would have some new marketing materials to write.

The paper is available in a gated version here, and is forthcoming in Political Research Quarterly.

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Comments (12)

1. Posted by Stephen Bainbridge on September 10, 2008 @ 16:12 | Permalink

In law school, I ran across an anecdote in which a federal appeals judge (I believe it was one of the Hands) sent a note to to a fellow judge, pointing out that in copying one of the party's briefs into his opinion, the judge had left out one sentence (or was it one cite?). But I've had no luck tracking it down with Google.

2. Posted by Gordon Smith on September 10, 2008 @ 19:57 | Permalink

Steve, That is a great story. I hope it's true.

But I am left wondering why we care. Are we just curious? It wouldn't change the behavior of the litigants, would it? Is there some dishonor in a court copying a highly persuasive legal argument from a brief? Certainly, that would be better than asking a young clerk to start from scratch.

3. Posted by anon on September 11, 2008 @ 15:34 | Permalink

As a district court clerk, I'm not so sure the percentages are highle in the district court. Namely because a lot of really, really terrible briefs get submitted in district court.

4. Posted by anon on September 11, 2008 @ 16:40 | Permalink

Yeah, and your D-court opinions are garbage anyways. Nothing matters unless it is highest state court or COA and above.

5. Posted by anon on September 11, 2008 @ 18:25 | Permalink

"The judge wrote an opinion which consists largely of paragraphs cut out of the defendants' brief and pasted into the opinion without even the courtesy of retyping. We have criticized this judge's practice of copying portions of the winning party's brief into his opinions before. See Walton v. United Consumers Club, Inc., 786 F.2d 303 (7th Cir.1986); Andre v. Bendix Corp., 774 F.2d 786, 800-01 (7th Cir.1985). We shall not repeat these criticisms. We trust the practice will now cease." Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 558 (7th Cir. 1986).

6. Posted by Steve Bainbridge on September 11, 2008 @ 19:11 | Permalink

As for whether courts should or shouldn't plagiarize, I don't think it matters very much. If the judge agrees with one side, why not adopt their reasoning.

But it is bugging me that I can remember the details of the story.

7. Posted by David Zaring on September 11, 2008 @ 21:25 | Permalink

Well, district courts make the parties draft orders for them. This isn't entirely different. That 7th Circuit case is pretty interesting though.

8. Posted by NonVoxPop on September 13, 2008 @ 10:16 | Permalink

I agree with Steve (and not the 7th circuit)-- judging shouldn't be like professoring, where the emphasis is on making an original contribution-- quite the opposite; it should be about grounding the decision in existing law (which the litigants might have phrased just right). If plagerism was a problem, the 7th circuit should promote some sort of law clerk's "truth in authorship" act so the actual authors can get credit for the work.

9. Posted by 4rx on November 1, 2011 @ 9:14 | Permalink

I think that they should use that kind of software because if they get the permission to do so.

10. Posted by Online pharmacy reviews on November 21, 2011 @ 8:24 | Permalink

What the hell is the winning prief?

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