E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Am I a plagiarist? I’m confident that I’ve never consciously
appropriated any ideas from someone else without attribution (although there
are surely some borderline cases where I thought about someone else’s idea, reworked
it into something different, and presented that different idea without laying
out the thought process and identifying the author of the other idea). I’m
equally confident that I’ve never consciously appropriated another author’s words
without attribution (although again I’m pretty sure that you can find places
where, as a result of a cognitive or typographical error the printed version of
my work gives the wrong page number for the original words).
But—and here’s the source of nervousness—I’m also pretty
sure that a determined search would turn up two kinds of things that are
getting described as plagiarism in the current environment. The first is easy
and clearly (in my view) simply doesn’t count as plagiarism or even sloppiness.
My work includes a lot of summaries of court cases using excerpts from the opinions.
Other authors have summarized some of the same cases. Suppose another author
and I have described a relatively obscure case. Chances are quite high that there
will be a significant overlap between that author’s and my choice of excerpts—we’re
both going to look for the quotations that highlight what makes the case interesting
(and the case’s obscurity means that we’re probably both going to find the same
things interesting), and both of us are probably going to present the quotations
in the same order (typically, in the order they appear in the original). And
finally, I will often have cited the other author nearby (because s/he and I might
be the only people to have written something about the [remember] obscure
case). So, if you run a “compare” function you’re going to find a high degree
of overlap between the two presentations. But I didn’t copy anything from the
other author; the constraints of the effort we were both engaged in drove us to
write up our points in quite similar ways. (One of the final items in the “file”
“against” Claudine Gay involved just this sort of “independently arrived at
overlap because of constraints” in connection with her and someone else’s
summary of the [I think] 1965 Voting Rights Act.)
The second is what I’d call understandable sloppiness. To understand
how it can happen you have to understand how I took notes (in the old days, on
note cards, more recently on my laptop). The source is named at the top (book
title, article citation, box and file location for archives). On the left is
the page number (or for archives the date of the document and a description).
Then there’s the substance of the note, which takes three forms. (a) Direct
quotations, with quotation marks around them. (b) My summary of the important
point the author makes that I think I might want to present when I come to
writing the research up. (c) My own reflections on the material, usually with
brackets around them. When drafting the book/article, which sometimes is years
later, I work from these notes. It’s not impossible—and I’m sure it has
happened—that in writing the material up I have a brain freeze and transcribe a
type (a) quotation as if it were a type (b) summary (and occasionally the reverse).
Cite-checking at later stages isn’t going to catch this kind of error because I’ll
check to see that things with quotation marks around them are accurate but can’t
check (systematically) what appear to be my summaries of positions ascribed to
the source (unless, when checking a quotation I happen to notice the words of
what I thought was a summary are actually in the source). I suppose that a
really dedicated cite-checker, trying to ensure that the substance of what’s in
my text matches the substance of what’s in the source might notice that the
purported summary is actually a quotation but in my experience even the best
law-review cite-checkers don’t really do that.
(For my most recent historical book on the Hughes Court
there’s an additional difficulty, which I did flag in the introduction: I did
the cite-checking and proof-reading during the Covid lockdown, which meant that
I could check only those sources that were available online. The temporary
availability of material from Hathitrust helped but there were some sources I
simply couldn’t check—and of course there’s a chance that ascription and
citation errors that I otherwise would have caught went unnoticed.)
I’ve written more than 2,000 published pages using these note-taking
and transcription techniques, and I’m confident (at the near-100% level) that
there are more than ten but probably (I certainly hope) fewer than one hundred
instances of what I’ve called understandable sloppiness—which hostile critics
could readily describe (inaccurately, as I’ve tried to explain) as plagiarism.
In short, I might be a “plagiarist-if-that’s-what-you-want-to-call-it”
but not a plagiarist.