According to a recent study (as summarized by Adam Liptak in the New York Times), in Supreme Court majority opinions over almost 70 years (1946-2014) “the average rate of nearly identical language between a party’s brief and the majority opinion was 9.6 percent.”
It’s a little difficult to know what this means. Liptak says that “[t]he study and related findings … looked for passages of at least six words with an overlap of at least 80 percent.” So if a Justice wrote a six-word clause, of which 5 words were the same as those in a party’s brief, the study would have counted it as an instance of nearly identical language. Since many Supreme Court opinions quote at some length from statutes or precedents, it seems possible that quite a lot of the reported overlap consists simply of use of governing legal language, as Liptak notes.
Liptak reports that Justice Thomas’s use of nearly identical language is “unusually high” (11.3 percent), but while Justice Thomas apparently writes this way more than the others on the Court, the differences do not seem vast: Justice Sotomayor is at 11 percent, Justice Ginsburg at 10.5, and the Court’s average was 9.6 percent. So it’s hard to tell whether the data really shed any substantial light on Justice Thomas’s overall work as a Justice.
But what’s noteworthy is that judges’ use of others’ language seems to be generally (though not universally) accepted as perfectly appropriate. Similarly, lawyers regularly use published form documents as the basis for those they have their clients sign, and I think that it is also commonplace for lawyers to borrow arguments wholesale from either published sources or colleagues’ past matters – and in both forms of writing I believe the borrowing lawyers do not footnote to their sources. There may be some outer limits on such practices, but it seems fair to say that a significant amount of what lawyers and judges do with words would be plagiarism if it was done in the pages of a scholarly journal, or a newspaper. (Of course lawyers sometimes use words not as advocates or judges but as scholars or journalists, and in those contexts the rules of plagiarism apply to lawyers exactly as they do to others.)
Why don’t the rules of plagiarism apply to the work of lawyers and judges as they do to the work of scholars and journalists? Presumably because what we want from lawyers and judges is results. When a lawyer drafts a document, much of what he or she is doing is employing tools – legal terms – to accomplish an objective. It would make no more sense to bar the lawyer from using language someone else had developed than it would to prevent a carpenter from using the correct tool. (At least provided, in each case, that the original developer had made his or her tool available, or put it in the public domain.) Similarly, when a judge deploys borrowed language to lay out the foundation for a conclusion, he or she may rightly be seen as simply using the tools at hand.
We do, certainly, want more from lawyers and judges than mere use of tools. Creativity, judgment and wisdom are also part of the law. But our collective practice seems to reflect that we think we can still look for creativity, judgment and wisdom even while recognizing that a substantial amount of the work to be done is the employment of tools, and that as a result we should regulate the ethics of using words in law practice quite differently than we would in domains where the plagiarism rules hold full force.