Sunday, September 26, 2004

"Plagiarism" by Legal Academics

Mark Tushnet

The recent flap regarding Charles Ogletree's work and some follow-ups going after, among others, Laurence Tribe prompt me to recount some incidents in my scholarly life. [Disclosure: I read Professor Ogletree's book in manuscript and did not catch the material drawn from Jack Balkin -- I hope because (my bad) I hadn't read Balkin's book.]

These thoughts are mostly about using the work-product of research assistants. I don't use my research assistants "very well," because my experience is that I know what I need better than they do, even when I am careful about giving them instructions, and I can locate it more quickly than they can. In doing work in archives, I can tell what's important to me far better than they can. Still, sometimes I do ask them to produce memoranda that I think will be helpful to me.

Once I had a very good research assistant who I asked to summarize the interpretations scholars had offered of the discussions within the Supreme Court prior to Brown v. Board of Education, thinking that I would re-work it into a "literature review" section of the article I was writing. Her memorandum was so good -- and, because I knew the literature, I knew the memo was quite accurate -- that I simply incorporated the memorandum into the article, which was published as by Mark Tushnet with Katya Lezin.

More recently I've asked some research assistants to develop "case histories" of important recent Supreme Court cases including Boerne v. Flores and Atwater v. Lago Vista. Some of these case histories have been done very well. The research assistants wrote up the case histories, largely from newspaper accounts, and supplied me with the background material they relied on, such as the articles or transcripts of radio interviews. I read the material and re-worked the case histories I had been given, sometimes changing the order of the presentation, sometimes supplementing some of the quotations the RA had picked out of the newspaper articles. But, when the case history was done well, the final product was not that different from what the research assistant had given me initially. [One question is whether I did enough with the case histories that the published product could fairly be regarded as "mine." Another is whether, when I did change the presentation, the marginal improvements, if any, were worth the effort.]

Here there are questions of attribution. The most interesting arise in connection with a publication format that was not receptive to law-review style footnoting, and did not give me a chance to produce an "acknowledgements" page. For the case histories in that format, I have a long endnote listing the newspaper articles, etc., from which the account is drawn. I remain a bit nervous about not including an acknowledgement of the research assistant in each of those endnotes, at least where my judgment is that the case history is at least as much his as mine.

The case histories raise an additional issue. Once I received a manuscript review from a university press in which the reviewer criticized me for having drawn material from her book without attribution. As it happened, I hadn't even read her book. The issue arose because she and I both dealt with the drafting history of some Supreme Court opinions. There's a limited supply of sources for this, the sequence of events is straight-forward, and anyone with some judgment will know which sentences and phrases are worth quoting from the sources. So, what happened was that my account did indeed read quite like hers even though they were independently written. (Anybody here remember Arnstein v. Porter?) That is, the similarity resulted from the constraints of the sources and the form in which the material was to be published. [In the end, I inserted citations of the form "see also" to her work.]

A final, slightly different problem, not about "copying" but about "sourcing." When you write a long-ish book over a several-year period of research and writing (and don't have law review editors to check your footnotes), the probability approaches 1 that either or both of these problems arise: (a) You quote something and include a note identifying the source, and the identification is inaccurate [for material from archives, you've miscopied the box number in which the document was located; for material from newspapers, you've miscopied the date of publication; and the like), and (b) You read something early in your research that makes a point in an interesting way, but you're not ready to write the material up then; when you are, you write something that's strikingly like what you read a year or two earlier and think that you've come up with a nice way of making the point, not realizing that you are unconsciously "copying" something someone else had written. (Even checking the footnotes wouldn't catch the second of these.) I am quite confident that I've done at least the first of these, and probably the second -- although in the nature of things I don't know where I've done them. But, what my knowledge has done is make me a bit more tolerant than others are about at least minor failings in the transcription-attribution-writing process.

None of these comments are directly responsive to the particular questions that have recently been raised about others' work, but I thought it might be helpful to make them available in the blogosphere.


Ok, so I admit. These things happen by accident. But the first 2 and a half pages from a chapter? Quite frankly I found Professor Ogletree's public apology blaming this on a research assistant sad for one reason. Maybe Ogletree didn't realize those 2.5 pages were JB's. But he sure as hell should've known he didn't write them.

This has happened to me, in a lesser sense, I read a bar journal article of mine word for word in a recent state supreme court brief, and on contacting the attorney submitting the brief (with 5 decades experience in the law) received a response much the same as this one, to the effect that the byline is just the final editor, not the author. But I can accept minor screwups in this regard, people are human, at the very least I know its possible to regurgitate someone else's idea without realizing you're doing it. I certainly believe Laurence Tribe is being accused of very little of substance.

But I'm at a loss for how 2.5 pages of someone else's work in one chapter can be written off as failure to attribute? I've never seen a 2.5 page box quote, but I'm sure most editors would object to anything that lengthy. Even if you asked for a memo, Professor Tushnet, and trusted its source, would you really be the author of a book if you simply inserted it unchanged for pages into your work without a byline given to the real author? Even in the story you offer, Ms. Lezin got a byline, right? But whatever Ogletree's intent was, it wasn't to offer anyone else credit for writing these 6 paragraphs he knew without question were not his own.

I, for one, am more outraged at the suggestion of ghost writing than theft. Ogletree was clearly leaving the writing of this book up to other people, and at best compiling their work, without any concern for whether or not he was presenting his own work. I think it is remarkably irresponsible to suggest that only sloppy sourcing makes this improper. The fact of the matter is there were 2.5 pages of this man's book he didn't write. He knew it. And he still had every intent of passing the work off as his own.

Now I ask you. Is passing off someone else's work as your own improper? Or only when you screw up and pick a Yale professor to steal from? Is allowing someone else to write your book only improper if I've heard of them? Is it remotely fair to call this "delegation," as Ogletree does?

Long story short, I agree, minor failings to attribute will happen to anyone over a career. Ogletree's attitude, however, is that he's in no way responsible for the production of his own ideas. What incredible ego. Does he think one stint as Anita Hill's lawyer makes him such a name that we'll let him get away with ghostwriting?

I was wondering about this:

The most interesting arise in connection with a publication format that was not receptive to law-review style footnoting, and did not give me a chance to produce an "acknowledgements" page.

What type of format was this. Is this a scholarly journal? A magazine? A book?
I'm trying to gain a better understanding of the problem you describe, but my field is not law. So, I'm having difficulties identifying situations where a scholar would, literally, be unable to acknowledge an author's contribution. ( I can imagine some that make it difficult to communicate the relative importance of various authors' contributions. But generally, in journal articles, one can list many, many authors, thus acknowledging every single author. )

I you are overlooking an important issue. Promotion and tenure committees use publication lists to evaluate the scholarship of academics. Academics from other departments and universities also evaluate an academics work based on their writing. People writing recommendations for tenure often base their opinions on the an academic's writings. The fact that publications are a very important metric for evaluating scholarship suggests the attribution on publications should correctly reflect the contribution and scholarship of the academic being evaluated. The academic should not be able to simply hire an ghost scholar to do this work for them.

That said, I have no difficulty with the idea that scholarly book, or any scholarly effort, might be a team effort. However, when this occurs, it should be acknowledged up front. That would permit tenure and promotion committees to better evaluate the work and productivity of particular scholars. After all, a tenure committee might need to compare the publication of one scholar who does work that is best done by a sole author-- and publishes only 5 articles a year, to the work of another who works in a field where one typically oversees a team of 5 students, who assist, and can thus publish 15 articles a year. Crediting the major contributors is one method of communicating the type of contributions the individual scholar makes.

As it happens, one might even find that some tenure committees like the idea that students are heavily involved in writing books, articles or other publications an academic might publish. After all, mentoring and educating students is something academics are encouraged to do, and involving students is not a bad thing. But, appropriate credit should be given to students, and law faculty, (as well as faculty in other departments) should develop standards that indicate the relative contributions of the faculty members as students. Given the inherent power balance between faculty and students, they should be particularly attentive to ensuring students get credit. The method of giving credit may vary from field to field, but systematically giving no contribution to graduate students seems inappropriate in an academic setting.

I fail to see how the fact that dishonesty is commonplace makes putting your name on work you know isn't yours honest. As Professor Tushnet noted, the option of including that junior associate, or research assistant's name is always present, and if the work is theirs, to do otherwise is dishonest.

The fact of the matter is, and if you ever get plagiarized you'll know this with a certainty, you can always recognize your own writing. Maybe it takes more than a few words to do it, but 2 pages? There's no question in my mind but that the sole author listed knew for a fact he wasn't the author. His apology is, essentially, that he stole it from an underling, so its ok, but didn't realize he was stealing from a Yale Law Professor, which wouldn't have been...where's the difference? I've read a great many definitions of plagiarism...none of them varied according to the prestige of the source.

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Plagiarism is a very serious crime!
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It's sad that even in academics, which is supposed to be one of the most ethical of fields, that we are having such terrible problems with plagiarism. Our country is in a sad state.

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