"Plagiarism" by Legal Academics

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.