Attorneys and Legal Entrepreneurship at the US Supreme Court

• In Event: Legal Texts

Abstract

When presenting a case to the U.S. Supreme Court, the core of an attorney's job is to select and frame a legal argument in a way that helps her client win. While attorneys have several opportunities to do this, only merits briefs -- the documents parties submit to the justices that outline their legal case -- offer attorneys the space to present those arguments in a coherent, uninterrupted fashion. Briefs exist because the justices need information about a case and they ask the parties to provide it, and the parties do so. In adversarial systems such as the US, however, this information is also framed in a way that clearly favors one party and hurts the other. They can be persuasive, or even innovative, but they must, above all, be believable, as attorneys who offer legal arguments that border on implausible find themselves losing before the justices.

Research shows that briefs written by experienced attorneys influence justices' final decisions on a case, and that attorneys can provide the justices with innovative arguments if they present them in a believable manner. Parties going before the Supreme Court obviously value a well-written brief, as they willingly pay veteran Supreme Court advocates more than a thousand dollars an hour to write their briefs and argue their cases. But the question remains: what exactly are experienced attorneys doing that makes their briefs so good? Are they taking old, established arguments and polishing them so they look obvious and correct? Are they winning because they present innovative arguments, explaining the law in a way that is new but obviously believable? Or are good attorneys just better at knowing when to double-down on an argument and when to chart a new course? And if that is the case, when do they decide to uphold the status quo and when do they decide to be legal entrepreneurs?

To answer these questions, I use supervised machine learning to create a novel dataset of citations used in Supreme Court merits briefs since 1979. I combine this data with newly-updated information about each attorney who has written a U.S. Supreme Court merits brief in that time period, which I use to compare new attorneys with experienced attorneys. I then use text analysis and descriptive statistics to compare attorneys' approaches to legal arguments within issue areas, both within a case and over time, to identify when attorneys are innovative and when they uphold the status quo, and when these strategies yield success.

Author

• Jessica Schoenherr, Michigan State University