Brief Writing and the Use of Language In U.S. Supreme Court Opinions

Adam Feldman, University of Southern California,  Department of Political Science, has published Blurred Lines: Merits Briefs as Templates for Supreme Court Opinions. Here is the abstract.

Supreme Court opinion language is predominately derivative. It comes from a variety of sources including briefs, past opinions, and lower court transcripts. This derivative language use, especially without attribution, has been described in ways ranging from common practice to plagiarism. This paper focuses on opinions using high levels of generally unattributed language derived from merits briefs.

This paper identifies a case type where opinions rely heavily on briefs and compares the language in the briefs and opinions in this set of cases. It also identifies the justices associated with this high language of language borrowing and finds that Justice Blackmun was especially disposed to this practice. While not presumptively staking a normative claim about the relationship between merits briefs and opinions in these cases, this paper is designed to catalyze the discussion regarding expectations, if any, for judicial citations and for the use of original language in Supreme Court opinions.

Download the article from SSRN at the link.