Corporate Governance

Plagiarism and the Supreme Court

By J. Robert Brown

We have noted (in an analysis borrowed from Steve Bainbridge) that the Supreme Court is usually unable to figure out securities issues on its own and, as a result, has a habit of tracking the reasoning of the government.  Certainly this was true in Stoneridge where the Supreme Court adopted the reasoning of the Solicitor General, including the odd theory that Rule 10b-5 only extended to vendors where there was actual reliance.

We now learn from David Zaring on The Conglomerate that the Supreme Court often takes more than its legal theories from briefs but regularly lifts portions of the brief wholesale.  Discussing a paper written by Pamela Corley at Vanderbilt, he  notes:

• 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").
  

The fact of plagiarism made us think again about Stoneridge.  While the opinion does not appear lifted from any brief, it does track the reasoning of the Solicitor General's Office (accepting that behavior can be deceptive but requiring actual reliance for a suit against a vendor).  It was result oriented reasoning not based on any particular legal principle (other than limiting the reach of Section 10(b) and Rule 10b-5).  But the action was consistent with the observations by Steve Bainbridge that when it comes to securities cases, the Court is incapable of devising its own reasoning. 

With this in mind, we glanced through the Stoneridge opinion to see if we could find signs that the language was limited directly from one of the briefs, particularly the government.

Full post as published by The Race to the Bottom on October 11, 2008 (boomark / email).