July 07, 2009
The Supreme Court's Reliance on the Courts of Appeals
Posted by David Zaring

In another neat use of plagiarism software, Brian Calvin, Paul Collins, and Pamela Corley have had a look at the percentage of Supreme Court opinions that are lifted from the lower court decision being reviewed.  The insight is that language borrowed from the lower courts might show what influences the Supreme Court and goes to the question that apparently animates the entirety of law and courts literature - does law matter?

Corley has done something similar for an earlier project, on how much party briefs influence the Court's opinion, and both Orin Kerr and I blogged the results.  Plagiarism software has many uses:

  • The borrowing is not massive.  Rehnquist once copied 23% of the appellate opinion in one case, but most justices during the recent period studied lifted between 3% and 6% of their majority opinions from the courts of appeals.  Still, there are other interesting indicia of borrowing...
  • ...like "if the Supreme Court rendered a liberal decision, and the lower court opinion was liberal in its direction, the justices integrate 0.64% more of the lower court opinion, in contrast to a conservative lower court opinion."
  • and "the Supreme Court is more likely to incorporate lower court opinions into its majority opinions when the lower court opinion was written by a prestigious judge. In substantive terms, the Supreme Court “plagiarizes” 1.5% more of a lower court opinion if it was authored by a judge rated “well qualified” or “exceptionally well qualified” by the American Bar Association, as compared to a judge with an “unqualified” rating.

It would also be interesting to know how much of the Court's opinions in circuit split cases come from the other circuit; perhaps that will be the next project for plagiarism software.

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