All Copying Is Not Created Equal: Examining Supreme Court Opinions’ Borrowed Language
17 Journal of Appellate Practice and Process 21 (2016)
62 Pages Posted: 30 Oct 2015 Last revised: 20 Jan 2017
Date Written: January 1, 2016
Long ago, Judge Cardozo warned of an "agglunative" style of judicial writing where whole sections are cut from other documents and reassembled together in courts' opinions. Critics of this practice label it judicial plagiarism while others in the legal community see this as an acceptable, common practice. This paper is one of the first works to locate multiple instances of this practice in the Supreme Court by comparing opinions with highly similar merits briefs. Due to the sheer number of Supreme Court opinions and associated Court documents that could serve as a textual basis for these opinions, the search for these links has, to date, proven predominately an intractable task. With the aid of computerized textual analysis the task of manually coding and comparing documents can be pared down to the most likely cases of interest. This approach, using the tools of big data analysis, provides the necessary link for this type of inquiry. The analysis in this paper is based on an comparison of over 9,400 merits briefs and their respective Supreme Court opinions. Based on these initial comparisons of linguistic similarity, this paper creates a typology of four Supreme Court opinion styles and focuses on the highly derivative type. The main section of the paper examines twenty-three instances of Supreme Court opinions where one-third or more of the opinion language is taken directly or "lifted" from one merits brief. By directly comparing the opinion language in the cases with the briefs, it highlights not only directly borrowed language, but also opinion language that is highly similar but not identical to language from the briefs. It also identifies the justices associated with high levels of language borrowing. Normatively, it is designed to catalyze the discussion regarding expectations, if any, for the use of original language in Supreme Court opinions.
Keywords: Supreme Court, merits briefs, language, empirical legal studies, judicial behavior, computer textualized analysis, content analysis, courts
JEL Classification: K41
Suggested Citation: Suggested Citation