Dissents from the Bench – More from the New York Times

In today’s New York Times, Adam Liptak writes about dissents from the bench.  “In a Polarized Court, Getting the Last Word,” Liptak  describes a new study that is soon to appear in the Justice System Journal.

The Brooding Spirit of the Law: Supreme Court Justices Reading Dissents from the Bench” by William Blake and Hans Hacker states that dissenting from the bench  “may indicate that bargaining and accommodation have broken down irreparably.”

Liptak writes:

“There are no comprehensive records of oral dissents, and researchers reviewed audio recordings — many available on the indispensable Oyez Web site — newspaper accounts and other resources to track them down. Jill Duffy, a research librarian at the Supreme Court, and Elizabeth Lambert, a staff lawyer with a Federal District Court in New York, seem to have assembled a complete list going back to 1969 in the winter issue of the Law Library Journal.”

[And, blogged about here some time ago.]

Presidential Pick Plagiarised?

Our professor and ethics expert Deborah Rhode is quoted in Adam Liptak’s front-page story in today’s New York Times, “Copying Issue Raises Hurdle For Bush Pick.”  The story includes a graphic where you can compare for yourself.

Several articles by Michael E. O’Neill, nominated by President Bush to be a judge on the Federal District Court in Washington last month, contain passages that appear to have been lifted from other scholars’ works without quotation marks or attributions.

According to the story,

Last year, a peer-reviewed legal journal, the Supreme Court Economic Review, issued a retraction of an article by Mr. O’Neill in 2004.  “Substantial portions” of the article, the editors wrote, were “appropriated without attribution” from a book review by another law professor.

Our professor is noted and quoted thusly:

Deborah L. Rhode, an authority on legal ethics at Stanford, said the retraction by the Supreme Court Economic Review was “extremely unusual” and amounted to “a textbook case of conduct that casts doubt on someone’s fitness for judicial office.”

“That’s a serious form of misconduct in an academic career,” Ms. Rhode said. “I would think it would be viewed equally seriously in a judicial career. In my judgment, that would be disqualifying.”

Sloppy Research at the United States Supreme Court?

Adam Liptak has an article in the Week in Review section of today’s New York Times, “The Chief Justice, Dylan and the Disappearing Double Negative.”  The fun article, about music lyrics cited in judicial opinions, includes a sidebar, “Most-Cited Rockers in Judicial Opinions,” drawing from the research of law professor Alex B. Long.

Liptak reports that the Chief Justice cited Bob Dylan in his dissent in last Monday’s Sprint Communications Co. v. APCC Services, Inc.:

“The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing,” Chief Justice Roberts wrote. “‘When you got nothing, you got nothing to lose.’  Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).”

Professor Long is quoted in the article as saying, “this was almost certainly the first use of a rock lyric to buttress a legal proposition in a Supreme Court decision.”

But, as Liptak later points out, the Chief Justice got the cite wrong:

On the other hand, Chief Justice Roberts gets the citation wrong, proving that he is neither an originalist nor a strict constructionist. What Mr. Dylan actually sings, of course, is, “When you ain’t got nothing, you got nothing to lose.”

It’s true that many Web sites, including Mr. Dylan’s official one, reproduce the lyric as Chief Justice Roberts does. But a more careful Dylanist might have consulted his iPod. “It was almost certainly the clerks who provided the citation,” Professor Long said. “I suppose their use of the Internet to check the lyrics violates one of the first rules they learned when they were all on law review: when quoting, always check the quote with the original source, not someone else’s characterization of what the source said.”

We will cover this next year in advanced legal research.