Balkinization: My Nervousness About the “Plagiarism” Flap

My Nervousness About the “Plagiarism” Flap

Mark Tushnet

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.

Posted 2:00 PM by Mark Tushnet [link]