Sorry, I didn't mean to alarm anyone with the title of this post. I'm not accusing the Appellate Body of wrongdoing! Rather, what I have in mind is this post from David Zaring over at the Conglomerate:
In another neat use of plagiarism software, Brian Calvin, Paul Collins, and Pamela Corley have had a look at the percentage of Supreme Court opinions that are lifted from the lower court decision being reviewed. The insight is that language borrowed from the lower courts might show what influences the Supreme Court and goes to the question that apparently animates the entirety of law and courts literature - does law matter?
The basic idea, as I understand it, is to use software designed to catch plagiarism to determine the extent to which the higher court's reasoning overlaps with the lower court's.
A previous post of David's talks about a similar study of whether courts lift language from the winning party's brief:
As you might imagine for a very unbusy Court overloaded with law clerks, time, and amici, the Court didn't borrow too much from the party briefs when it writes its decision, at least for the opinions issued in the 2002, 2003, and 2004 terms. The average overlap between opinion and winning party brief then was roughly 10%. I bet the percentages are higher in the appellate courts, and especially in the district courts.
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).
The reason I bring all this up is that I wonder what this kind of analysis would show when applied to the Appellate Body. My instinct is that the Appellate Body relies on briefs and panel reports for its reasoning less than many other courts, but I have no empirical evidence to support this. If any professors/grad students -- or anyone, really -- are looking for a project, this could be an interesting one.
The methodology of doing this with WTO decisions may be tricky. There is a good deal of summarizing of the parties' arguments, even in the parts of the report that appear at first glance to be the reasoning. So, you'd really have to be careful to identify the actual reasoning of the Appellate Body and then compare that to the briefs/panel reasoning.
