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How Much Do Supreme Court Opinions Borrow from the Briefs?:
Over at the Glom, David Zaring flags an interesting new paper about Supreme Court opinionwriting: Pamela C. Corley, The Supreme Court and Opinion Content, Political Research Quarterly, Vol. 61, No. 3, 468-478 (2008). Here's the abstract:
Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of opinions and, consequently, have the ability to influence the law. Utilizing plagiarism software, the author compares the parties' briefs with the majority opinion of the Court. The results indicate that there is a connection between the language of the parties' briefs and the language of the opinions, which means that parties have the potential to influence the law.
  The paper unfortunately is gated right now, but those coming through academic institutions with access rights can get the paper here. Those who can't download the paper can get David's summary:
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").
Dilan Esper (mail) (www):
I'm certainly not surprised by the last point. The justices obviously have more interest and knowledge in the high-profile cases. Everyone on that Court has a pretty good idea about what they will say about the issue of abortion or affirmative action; on the other hand, if the issue is whether claims under the False Claims Act are subject to equitable tolling, I would suspect that any given justice is more likely to utilize some of the research in the brief that he or she finds persuasive.

I should add that I don't really see anything wrong with this, either, although it does remind us lawyers of one more reason we have a responsibility of candor to the tribunal and should not be making misrepresentations in our briefs.
9.10.2008 7:40pm
Anderson (mail):
The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of opinions and, consequently, have the ability to influence the law.

Uh, *yeah* -- that's what the clients are paying their lawyers to do.

This is the most "dog bites man" story I've seen in ages.
9.10.2008 8:05pm
BookMan:
Compare the majority opinion in Jones v. United States, 529 U.S. 848 (2000) with the Brief for the Petitioners, written by none other than then Lawyer John Roberts.

The resemblance is uncanny.
9.10.2008 8:38pm
Terrivus:
The paper isn't accessible yet, and it may not have addressed this point, but I bet that there's much more "borrowing" in 9-0 cases. Those are the cases where either it's error correction or one side is obviously correct. In which case, it's much more likely a Justice (or clerk) will go right to the main brief (especially if it's an SG brief) and follow it right down the line. These are also the cases that tend to be less high-profile, which correlates with the "not the front page of the NY Times" finding of the authors.
9.10.2008 8:54pm
Paul McKaskle (mail):
Many years ago I submitted an amicus brief on a case pending in the Supreme Court, and Justice Douglas used an appreciable amount of my language in his opinion but, alas, it was a dissent.
9.10.2008 9:35pm
Nunzio:
Hopefully the aphorisms in their opinions are the judges' own. The worker-like stuff should be cribbed. Why reinvent the wheel?
9.10.2008 9:49pm
Sasha Volokh (mail) (www):
This doesn't mean the parties influence the law. For instance, some of clerks' work product makes it verbatim into the opinions, so if you ran plagiarism software comparing the clerks' first draft and the final copy, you'd find substantial overlap. Maybe this means the clerks are influencing the opinion. Or maybe the judges are smart enough to catch everything, and to the extent something is unchanged, it's because it faithfully represents their views.
9.10.2008 10:00pm
frankcross (mail):
I'm sure it is because it faithfully represents their general views, Sasha, but particular words matter. Think of the parsing of the language of opinions by future litigants and courts. If a party can get the exact words they want into an opinion, that could be very valuable.
9.10.2008 10:54pm
Sasha Volokh (mail) (www):
Yes, could be -- I agree. Or might not, if the judge would have put in language that was just as good on his own. Same when a clerk sees his language go in verbatim -- did he actually play a causal role in the development of the law, or did his words just go in because something equivalent would have gone in regardless from the judge himself? I'm just saying you can't tell from merely looking at a plagiarism index.
9.10.2008 11:31pm
FlimFlamSam:
I'm surprised anyone would find this interesting or novel.
9.10.2008 11:32pm
frankcross (mail):
I agree in general, Sasha. But I would note that companies spend very large amounts of money to get their own exact language placed into legislation. That's sort of a market check on the value of writing the law.
9.10.2008 11:57pm
Curt Fischer:

...justices are more likely to borrow from high quality briefs (proxied by a DOJ or DC return address)...


Huh? Why is a DoJ or DC return address a proxy for high quality?
9.10.2008 11:58pm
TerrencePhilip:
As a practitioner (though I've never had anything in that court) -I- certainly find it interesting. It does make a difference who the lawyer is, at least some of the time-- and that small margin of difference is partly why some people command such a premium. I've seen some of this effect in lower courts- it would be an interesting phenomenon for someone to try and quantify. A judge adopting part of your argument wholesale = success.

This phenomenon is self-perpetuating to some extent: if you know a judge's quirks and druthers, you know what he/she finds persuasive and worth discussing, and you will tailor your arguments accordingly. So, even if the judge is quoting you, you were really quoting or tailoring your presentation to the judge, based on your past experience.
9.10.2008 11:58pm
one of many:
I wonder if the software is capable of finding out how much of the briefs which the SC copies is in turn copied from prior SC opinions.
9.11.2008 12:42am
Anderson (mail):
I'm surprised anyone would find this interesting or novel.

Exactly.

Why do y'all think the appellate courts require that electronic copies of briefs be submitted?
9.11.2008 10:13am
Kenvee:
Um... yes. Anyone whose submitted more than a handful of briefs should have experienced at least a couple of cases where you recognize your arguments and phrases being used in the court's opinion. That's sort of the point of writing a brief -- the ideal would be for the court to just plug your brief wholesale into their opinion. (Actually, I came across a case the other day where they did just that, explicitly. They said something like "we find the State's brief very well-reasoned and adopt it as our own," then quoted all the relevant parts.)
9.11.2008 10:20am
Kenvee:
Er, "whose" = "who has", sorry.
9.11.2008 10:21am
MJG:
Don't see any problem with it, and in fact it is the highest compliment you can pay to a lawyer who has put the time into writing a persuasive and well-written brief. Certainly some degree of rewriting is necessary, but I have no problem with a high number.

Gary Lawson of BU Law has written about how the (in)famous Mathews v. Eldridge test for procedural due process was lifted almost verbatim from, I believe, the SG's brief.
9.11.2008 12:28pm
Kent Scheidegger (mail) (www):
Orin, I'm not able to access the full article. Was the analysis limited to parties' briefs or did it include amici?
9.11.2008 5:01pm
Larry Fafarman (mail) (www):
Kenvee said (9.11.2008 9:20am) --
Anyone whose submitted more than a handful of briefs should have experienced at least a couple of cases where you recognize your arguments and phrases being used in the court's opinion. That's sort of the point of writing a brief -- the ideal would be for the court to just plug your brief wholesale into their opinion.

Wholesale verbatim or nearly verbatim copying of one side's brief -- as by adopting one side's brief as the opinion -- is severely frowned upon by the courts and can be grounds for reversal. This is discussed in an excellent paper titled "Analogical Legal Reasoning and Legal Policy Argumentation: A Response to Darwinist Defenders of Judge Jones' Copying from the ACLU" by the Discovery Institute's Casey Luskin. The paper has the following quote from a Supreme Court opinion:

I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case. Judge James Skelly Wright quoted in United States v. El Paso Natural Gas Company, 376 U.S. 651, 657, footnote #4 (1964) (internal citations and quotations omitted)

Luskin's paper addressed the issue of a particularly notorious case of a judge's one-sided copying of the briefs: in the Kitzmiller v. Dover intelligent design case, Judge John E. Jones III copied the ~6000 word ID-as-science section of the opinion nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs. The Discovery Institute's study of Judge Jones' copying covered only a comparatively small part of the opinion, the ~6000 word ID-as-science section, but this section is considered by many to be the centerpiece of the opinion. The most important part of this study is the side-by-side comparison of the texts of the opinion and the ACLU's opening post-trial brief -- percentage figures for copying can be very misleading. Because the original meaning of text can be retained after the text has been drastically altered by substitution of synonyms, insertion or deletion of superfluous or non-essential words, paraphrasing of statements, and/or scrambling of sentences and/or paragraphs, text-comparison computer programs are simply not a reliable means of comparing texts for similarity of ideas, particularly when the word-count correlation figure is low. The only reliable way of comparing two texts is by a side-by-side visual comparison. The Discovery Institute study placed corresponding statements from the two texts side by side for a visual comparison, and the high degree of correlation is apparent. An attempt was made to compare the two texts by means of a computer program, producing grossly erroneous results, as discussed in an article on my blog.

Other considerations are the extent of one-sidedness in the copying and whether the copying covers a whole issue of the opinion -- the copying studied in Kitzmiller v. Dover covered a whole issue, the ID-as-science issue. I would not go so far as to say that this Supreme Court study exonerates Judge Jones from charges of excessive one-sidedness in his copying of the ID-as-science section of the Dover opinion.

IMO verbatim or near verbatim copying from the briefs is OK so long as it is done even-handedly by addressing both side's arguments. By copying rebuttals as well as opening arguments, judges can be even-handed even while not doing any independent thinking. The argument that it is OK to ignore one side's arguments if those arguments have no merit does not hold water because if those arguments are that bad, then they should be addressed in order to refute them. Judge Jones showed no evidence that he read the ID-as-science sections of any post-trial brief other than the one that he copied from. Jones must have figured that he could get away with such one-sided copying because he knew the case was unlikely to be appealed because the pro-ID members of the school board had been replaced by anti-ID members.

Of course, the Supreme Court could get away with wholesale copying where a lower court could not. It is noteworthy that Corley's study found that the Supreme Court is more likely to copy from the briefs in low-profile cases than in high-profile cases, because the court would understandably want to avoid being accused of excessive one-sidedness in high-profile cases. That's why we often see the Supreme Court thoroughly addressing the losing side's arguments in high-profile cases, e.g., "we find this argument to be unpersuasive ... blah, blah, blah." But Kitzmiller v. Dover had an extremely high profile, so Judge Jones' one-sided copying should have gotten much more bad publicity than it got.

Also, the Discovery Institute's Evolution News &Views website has the following articles about the one-sided copying in the Kitzmiller case --

Study Shows Federal Judge Copied ACLU Text in Dover Intelligent Design Ruling

Judge Jones on Copying ACLU: No Comment

Judge's Copying of ACLU "Highly Frowned Upon" by Courts

Backgrounder on the Significance of Judicial Copying

Judge Jones and the Shattering of Darwinist Illusions

Local Dover Media Promotes False Information on Judge Jones Study

Darwinists Desperate to Defend Kitzmiller Copying
9.12.2008 4:26am
Larry Fafarman (mail) (www):
Also, there is a huge difference between copying rebuttals and copying opening arguments, because the rebuttals always address the opposing side's arguments whereas the opening arguments do not necessarily address the opposing side's arguments. Kitzmiller v. Dover's ID-as-science section was copied entirely from the ACLU's opening post-trial arguments alone, and that is super bad. As I said, there is not a shred of evidence that Judge Jones even read the ID-as-science section of any post-trial brief other than the one that he copied from. He figured he could get away with his extremely one-sided copying because he knew the case was not likely to be appealed.

The Darwinists are of course going to condemn me for criticizing their hero Judge Jones even though I am being quite generous to him by not expecting him to write his own original opinion but only expecting him to be even-handed in copying from the briefs.

Also, as I said, the use of text-comparison computer programs to try to determine the extent to which two different texts contain the same ideas is completely unreliable.

I assert that there is a lot more to this brief-copying thing than first meets the eye.
9.12.2008 6:43am
W. Kevin Vicklund (mail):
Larry's two posts are misleading and factually incorrect.


Because the original meaning of text can be retained after the text has been drastically altered by substitution of synonyms, insertion or deletion of superfluous or non-essential words, paraphrasing of statements, and/or scrambling of sentences and/or paragraphs, text-comparison computer programs are simply not a reliable means of comparing texts for similarity of ideas, particularly when the word-count correlation figure is low.


It is quite possible to create programs that check for synonyms, insertion or deletion of words, paraphrasing, and scrambling of sentences/paragraphs. In fact, the output of these programs typically include side-by-side comparisons in the output. Computers are much better than humans for detecting scrambling, but humans are better at detecting paraphrasing - though paraphrasing in this case would be a good thing, as it would show that the judge understood the argument. Detection of synonyms and insertions/deletions slightly favor computers. All-in-all, a computer program that prints out a side-by-side comparison as a checking mechanism is the most reliable way to detect plagiarism. The computer program that Larry claims produced "grossly erroneous results" has all of the features, including the side-by-side output. Moreover, as I pointed out in a comment to that post, Larry didn't even analyze the right program!

It should be noted that the DI study was seriously flawed, in that it considered only whole paragraphs. If a paragraph copied 5 sentences from the brief and added two sentences not found in the brief, the whole paragraph was considered to be copied from the brief. The study didn't attempt to evaluate the source of those two sentences. The DI's number of 90.9% is therefore an overestimate.

Larry also claims "there is not a shred of evidence that Judge Jones even read the ID-as-science section of any post-trial brief other than the one that he copied from." He bases this claim solely on the DI study, without determining whether or not content from the other post-trial briefs are included. Even if the DI's number is correct, that leaves over 9%, approximately three pages of text to evaluate. Larry has admitted that he hasn't even read the other post-trial briefs. His claim is merely an assertion without any basis in fact.

As it turns out, a sentence-by-sentence comparison shows that, for the section in question, the opinion can be broken into the following sources: 88% plaintiff brief, 5% addressing defendant rebuttal, 5% plaintiff rebuttal, 1.5% original from judge, and 0.5% addressing amicus curiae. (The defendants' original brief is too disjointed to be read, so I gave up seeing if there was anything taken from it) Furthermore, the judge discarded a full third of that portion of the plaintiffs original brief.

As it turns out, defendants combined their rebuttal of the ID-as-science section with the rest of the section on the endorsement test. As a result, most of their rebuttal was dealt with in the main endorsement test section. Very little made it into the ID-as-science section, due to the simple fact that the defendants rebutted very little of the ID-as-science section, and most of the rebuttal was anticipated by the plaintiffs in the original brief.
9.12.2008 4:26pm
Larry Fafarman (mail) (www):
Well, well, well, shiver my timbers -- if it isn't Kevin Vicklund, the cyberbully and cyberstalker who is always trying to get me kicked off of blogs.

Kevin said,
It is quite possible to create programs that check for synonyms, insertion or deletion of words, paraphrasing, and scrambling of sentences/paragraphs.

Wrong. Wikipedia says that Wesley Elsberry's text-comparison program determined that only 66% of the Dover opinion's ID-as-science section was borrowed from the ACLU's opening post-trial brief whereas the side-by-side text comparison in the Discovery Institute's report shows that the correct figure is much closer to 100%. And the 9.1% of the Dover opinion's uncorrelated text shown in the DI report consists partly of discussion unrelated to the ID-as-science question, e.g., the question of whether Intelligent Design
encourages critical thinking.

If a paragraph copied 5 sentences from the brief and added two sentences not found in the brief, the whole paragraph was considered to be copied from the brief.

Show me examples of such added sentences that stated independent thoughts or defendants' rebuttals. The resemblance between the two texts is striking. Hardcore Darwinist Larry Moran wrote in response to a comment on his blog --

Referring to Judge Jones, you say ...
He did not merely sign off on one side, but took the material from both sides and took a month to sort through what occurred at trial and put together a first rate summary of the issues from the materials he had been comparing and which had been debated before the bench. It was not all his own wording; but that's not a defect, nor is it a denial of the time he did spend sorting through the issues.

I find it incredible that you could say such a thing. Obviously, you have never taken the time to compare what Jones wrote to what's in the Plaintiff's submission. Any junior clerk could have copied the material in a single afternoon, making some minor changes of wording. This is not a case of picking and choosing from both sides and writing a summary that incorporates a few phrases here and there. It's wholesale copying, the order is the same and entire paragraphs are copied for 34 pages.

And it's not just facts that are copied, it's opinions and summaries as well.

Kevin said,
Larry has admitted that he hasn't even read the other post-trial briefs.

What in the hell does that have to do with the fact that Judge Jones copied this brief nearly verbatim?

5% addressing defendant rebuttal

That 5% did not concern the ID-as-science question -- it concerned the question of whether Intelligent Design encourages critical thinking, a question which Jones did not even answer. BTW, it was probably an opening argument instead of a rebuttal, but that's OK -- the problem is that Jones did not answer the question.

As it turns out, defendants combined their rebuttal of the ID-as-science section with the rest of the section on the endorsement test. As a result, most of their rebuttal was dealt with in the main endorsement test section.

The defendants' rebuttals on the ID-as-science issues should have been repeated in the opinion's ID-as-science section because those rebuttals were relevant to that section.

BTW, my main position is that the courts should declare the evolution controversy to be non-justiciable.
9.12.2008 7:00pm
Stash:
When I was taught brief-writing in law school, my professor (a practicing adjunct, I think)told me this was the entire purpose of breif-writing. Not plaigerism, per se, but that the opinion would be written with your brief open in front of the judge, while the opponent's sat closed on the desk. As a result, I have always tried to write briefs that "sound like" opinions rather than the often gratuitous histrionics and abuse that some folks think is persuasive.

I have one other point to raise, however. How much of this may be attributable to law clerks taking short-cuts in drafting the opinion? Sasha Volokh talked about the adoption of a clerk's language as analogous, but mighn't clerks also be the primary source? Could this be more about over-worked clerks cribbing the arguments judges have indicated they agree with than judicial rubberstamp? This, or course, diminishes judicial responsibility not one whit, but clerks do tend to take the first swipe at opinions.
9.13.2008 8:29pm
Larry Fafarman (mail) (www):
Stash said,
When I was taught brief-writing in law school, my professor (a practicing adjunct, I think)told me this was the entire purpose of breif-writing. Not plaigerism, per se, but that the opinion would be written with your brief open in front of the judge, while the opponent's sat closed on the desk.

Here is what an appeals court's reversal of a district court decision said about that (from an article in Evolution News &Views):

"Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore cannot condone the practice by the District Court in this case."
-- from Bright v. Westmoreland County, 380 F.3d 729, 732 (3rd Cir. 2004)

As I indicated, IMO copying from the briefs is OK if the copying is even-handed. If the losing side's arguments are weak, all the more reason to address those arguments in order to refute them. The ultimate sign of a judge's bias is to write no opinion and hold no oral hearing -- that happened to me. An attorney told me that the judge in my case, TJ "Mad" Hatter of the Central California federal district court, had a bad reputation for not writing opinions.

Stash said,

As a result, I have always tried to write briefs that "sound like" opinions rather than the often gratuitous histrionics and abuse that some folks think is persuasive.

IMO writing briefs in the "voice of the court" so that judges can just slothfully "copy-and-paste" ("lift-and-drop") text from them without changing a word is insulting to the intelligence of judges -- but the intelligence of some judges, e.g., Judge John E. Jones III, should be insulted. The idiot actually said that the work of judges is "workmanlike."
9.14.2008 1:23pm