Unoriginal Sin: The Problem of Judicial Plagiarism

Abstract

Judicial opinions are the core work product of judges; they should be tangible proof to the parties that the court analyzed their claims or defenses and independently reached a reasoned decision. Yet courts often request that parties prepare proposed findings of fact and conclusions of law and thereafter adopt the prevailing party’s findings and conclusions verbatim or nearly so. In other cases, courts copy portions of the winning party’s brief or legal memorandum into their opinions or orders without attribution. These practices are fairly described as “judicial plagiarism.” The limited case law on-point establishes that if a court’s verbatim adoption of a party’s positions or its replication of a party’s brief reflects a lack of independent analysis or reasoning, or an apparent abdication or delegation of the court’s judicial function, it may furnish grounds for reversal. Grounds for reversal should also exist if judicial plagiarism reasonably evidences a court’s alleged bias or partiality. This Article goes further, however, to argue that judicial plagiarism may constitute judicial misconduct for which the offending judge may be disciplined under the Model Code of Judicial Conduct. Deciding whether judicial plagiarism rises to the level of judicial misconduct or whether it is simply a judge’s ill-considered stab at efficiency is a difficult inquiry. To aid in this important determination, the Article identifies factors that higher courts and judicial conduct authorities should consider in the process. The Article also explains why courts’ and scholars’ long-standing defenses of judicial plagiarism fail.