Davies on Casey Meets the Court @horacefuller @GB2d

Ross E. Davies, George Mason University Antonin Scalia Law School; The Green Bag, has published Casey Meets the Court at 27 Green Bag 2d 169 (2024). Here is the abstract.

Ernest Lawrence Thayer, creator of “Casey at the Bat,” produced three versions of his poetical gift to baseball fans. The Supreme Court of the United States, creator of the “baseball antitrust exception,” produced three versions of its doctrinal gift to baseball owners. In Volume VIII of its series of Re-readings booklets, the Green Bag republished all three of Thayer’s versions of Casey, and compared the arc of their literary development to the judicial arc of development of the Court’s baseball antitrust exception. There was something missing, however, from this parallel treatment of Casey and the Court: the two arcs intersected in the end, via Justice Harry Blackmun. This is their story.

Download the article from SSRN at the link.

Davies on Square Dancing and a Cat at the Supreme Court @horacefuller @georgemasonlaw

Ross E. Davies, George Mason University School of Law, has published Square Dancing and a Cat at the Supreme Court: Justice Harry A. Blackmun’s First Moment in Charge at 11 Journal of Law 1 (2023). Here is the abstract.

Associate Justice Harry A. Blackmun served on the Supreme Court of the United States from June 1970 to August 1994. He had mixed feelings about the Chief Justices with whom he served. How might a Blackmun Chief Justiceship have been different?

Download the essay from SSRN at the link.

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.