Authorship on the Supreme Court of Canada

By Kelly Bodwin in digital humanities modeling

January 1, 2017

Co-Authors: Jeff Rosenthal and Albert Yoon

Paper Abstract - University of Toronto Law Journal Paper

In contrast to other branches of government, the Supreme Court of Canada operates with relatively lean staffing. For most of the Court’s history, its justices alone determined which cases to review, heard oral argument, and wrote opinions. Only since 1967 have justices have been aided in these responsibilities by law clerks. While interest abounds in the relationship between justices and their clerks – particularly the writing of opinions – very little is known. This article analyzes the text of the Court’s opinions to better understand judicial authorship. We find that justices possess distinct writing styles, allowing us to distinguish them from one another. Their writing styles also provide insight into how clerks influence the writing of opinions. Most justices in the modern era possess a more variable writing style than their predecessors, both within and across years, providing strong evidence that clerks are increasingly involved in the writing of judicial opinions.

Paper Abstract - Advancements in Applied Statistics Paper

Legal scholars have long been interested in the extent to which judges rely on their law clerks in writing judicial opinions. Recent scholarship provides compelling evidence that Supreme Court justices increasingly rely on their clerks. Distinguishing between judge-written and clerk-written opinions is difficult, since this information is typically kept within chambers. The opinions of Judge Frank Easterbrook of the U.S. Court of Appeals provides a unique opportunity: he writes his own opinions, aside from allowing each of his clerks to write a first draft of one opinion (typically towards the end of her clerkship). This article examines linguistic and stylistic elements of Judge Easterbrook’s opinions to establish analytically the degree of similarity in his writing style compared to his clerks and fellow 7th Circuit judges. We find that Judge Easterbrook’s opinions are clearly identifiable from those of his fellow jurists. By contrast, his clerks’ writings are statistically distinct but less identifiable. Our study supports the view that even with close judicial oversight, clerks’ writing cannot be made exactly equivalent to their judges. It also provides evidence for the effectiveness of a clerkship experience such as Judge Easterbrook’s, in which clerks are given a lengthy opportunity to learn both his stylistic and substantive approach to the law.

Posted on:
January 1, 2017
2 minute read, 380 words
digital humanities modeling
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