Failure to Teach: Due Process and Law School Plagiarism

Journal of Legal Education

Volumn 49, Issue 2, 1999, Pages 236-254

  LeClercq, Terri ^a  

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EID: 0033477673     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (77)

1. Members of the two-year committee were Julie Cheslik, University of Missouri - Kansas City; Susan Dunham, American University, Edward Gerdes, University of Oregon; Ann Gibbs, Nova Southeastern University, Cynthia Hinman, John Marshall Law School; Joyce Klouda, DePaul University, Terri LeClercq, University of Texas; Pamela Lysaght, University of Detroit Mercy; Karen Mika, Cleveland State University; Kathleen O'Neill, University of Washington; Terrill Pollman, University of Las Vegas; Judith Ann Rosenbaum, Northwestern University; Thomas Seymour, Suffolk University; Alice Silky, Hamline University; Louis Sirico, Villanova University; and Nancy Spyke, Duquesne University.
2. Both the school and our informant will remain nameless. The cases were still pending at the end of the semester because the honor committee could not decide, in the first of the cases it faced, what its own working definition of "plagiarism" needed to be.
3. Before mailing our survey, we reviewed three previous empirical inquiries into law school plagiarism. A 1983 survey went to 31 law school deans and produced 17 responses. Debbie Papay-Carder, Comment, Plagiarism in Legal Scholarship, 15 U. Tol. L. Rev. 233, 252 n.39 (1983). A 1987 survey by Cumberland School of Law, Samford University, produced 86 responses from 169 questionnaires; these responses were the focus of a conference at the University of Florida where six legal writing staffs evaluated the policies as "no" policy, "word" policy, "dictionary" policy, "dictionary plus" policy, or "good." Patsy W. Thomley, In Search of a Plagiarism Policy, 16 N. Ky. L. Rev. 501, 507-08 (1989). A 1990 survey brought 39 usable responses "from a possible pool of 166 eligible schools." Robert D. Bills, Plagiarism in Law School: Close Resemblance of the Worst Kind? 31 Santa Clara L. Rev. 103, 116 (1990).
4. Before mailing our survey, we reviewed three previous empirical inquiries into law school plagiarism. A 1983 survey went to 31 law school deans and produced 17 responses. Debbie Papay-Carder, Comment, Plagiarism in Legal Scholarship, 15 U. Tol. L. Rev. 233, 252 n.39 (1983). A 1987 survey by Cumberland School of Law, Samford University, produced 86 responses from 169 questionnaires; these responses were the focus of a conference at the University of Florida where six legal writing staffs evaluated the policies as "no" policy, "word" policy, "dictionary" policy, "dictionary plus" policy, or "good." Patsy W. Thomley, In Search of a Plagiarism Policy, 16 N. Ky. L. Rev. 501, 507-08 (1989). A 1990 survey brought 39 usable responses "from a possible pool of 166 eligible schools." Robert D. Bills, Plagiarism in Law School: Close Resemblance of the Worst Kind? 31 Santa Clara L. Rev. 103, 116 (1990).
5. Before mailing our survey, we reviewed three previous empirical inquiries into law school plagiarism. A 1983 survey went to 31 law school deans and produced 17 responses. Debbie Papay-Carder, Comment, Plagiarism in Legal Scholarship, 15 U. Tol. L. Rev. 233, 252 n.39 (1983). A 1987 survey by Cumberland School of Law, Samford University, produced 86 responses from 169 questionnaires; these responses were the focus of a conference at the University of Florida where six legal writing staffs evaluated the policies as "no" policy, "word" policy, "dictionary" policy, "dictionary plus" policy, or "good." Patsy W. Thomley, In Search of a Plagiarism Policy, 16 N. Ky. L. Rev. 501, 507-08 (1989). A 1990 survey brought 39 usable responses "from a possible pool of 166 eligible schools." Robert D. Bills, Plagiarism in Law School: Close Resemblance of the Worst Kind? 31 Santa Clara L. Rev. 103, 116 (1990).
6. I discuss preliminary investigation into law school plagiarism in Confusion and Conflict in Law Schools and Law Classes, in Perspectives on Plagiarism and Intellectual Property in a Post-Modern World, eds. Lisa Buranen & Alice M. Roy (Albany, forthcoming 1999). With permission of the State University of New York Press I have used some of this material.
7. Linda Bergmann, Letter to Editor, Council Chron., June 1994, at 15.
8. The court in Napolitano v. Trustees of Princeton Univ. found that a "mosaic" of paraphrased words in a student's paper was "intended to deceive her preceptor." 453 A.2d 263, 275 (N.J. Super. Ct. App. Div. 1982). Perhaps faculty need to discuss whether any misuse of someone else's writing constitutes plagiarism, or whether repeated misuse is determinative. I suspect most readers would find that the mosaic is an obvious case of plagiarism.
9. Applying the Power of Association on Campus: A Model Code of Academic Integrity, 24 J.C. & U.L. 97, 98 (1997) (citing interviews in 1993 with 802 faculty members at 16 colleges and universities by Donald L. McCabe that revealed 60 percent of the faculty of non-honor-code schools and 47 percent at honor-code schools "said they would go to little or very little effort to document an incident of . . . dishonesty").
10. See Jerry Berger, St Louis U. Investigates Plagiarism Charge in Law School, St. Louis Post-Dispatch, Jan. 26, 1992, at 1C; David Berreby, Student Withdraws in Plagiarism Uproar, Nat'l L.J., May 9, 1983, at 4.
11. See Jerry Berger, St Louis U. Investigates Plagiarism Charge in Law School, St. Louis Post- Dispatch, Jan. 26, 1992, at 1C; David Berreby, Student Withdraws in Plagiarism Uproar, Nat'l L.J., May 9, 1983, at 4.
12. And they probably are, if they know what they are doing and what the consequences can be if they are not. "On the whole, law students and attorneys are not inherently unethical. Rather, they often find it difficult or nearly impossible, without some guidance or training in professional responsibility, to ascertain what is the proper professionally responsible resolution to a matter." Kathleen J. Woody, Professional Responsibility Training in Law School and Its Philosophical Background, 7 J. Legal Prof. 119, 122 (1982), quoted in Margaret Z. Johns, Teaching Professional Responsibility and Professionalism in Legal Writing, 40 J. Legal Educ. 501, 501 (1990).
13. And they probably are, if they know what they are doing and what the consequences can be if they are not. "On the whole, law students and attorneys are not inherently unethical. Rather, they often find it difficult or nearly impossible, without some guidance or training in professional responsibility, to ascertain what is the proper professionally responsible resolution to a matter." Kathleen J. Woody, Professional Responsibility Training in Law School and Its Philosophical Background, 7 J. Legal Prof. 119, 122 (1982), quoted in Margaret Z. Johns, Teaching Professional Responsibility and Professionalism in Legal Writing, 40 J. Legal Educ. 501, 501 (1990).
14. Carolyn Hughes Crowley, Focus: College Cribbers . . . Ethics May Be In, but So Is Cheating, Wash. Post, Jan. 6, 1992, at C5 (reporting on a study by Donald L. McCabe).
15. Deciding to lift an entire paragraph and not give the source is obviously plagiarism, but "taking bits and pieces from a database and 'laundering' that information in an essay is less so." Anthony Flint, High Tech Blurs Boundaries of Plagiarism; Back on Campus, Boston Globe, Sept 26, 1993, at 1 (quoting Abigail Lipson, Harvard Bureau of Study Counsel).
16. One complication, for example, is how to acknowledge where the researcher actually found the material if one source led to another source: While it is a useful and an appropriate research technique to find sources through other sources, it is plagiarism to use citations gleaned from a citing source and to attribute only to the cited source. . . . Not only is this plagiarism, it is risky (the author of the citing source may have misquoted or misread the cited source), and it is poor scholarship (you may have not contributed any original thought or ideas to the topic area). Paraphrasing: Knowing When and How to Cite, Second Draft, Apr. 1993, at 5.
17. Michael T. O'Neill, Plagiarism: (1) Writing Responsibly, ABCA Bull., June 1980, at 34.
18. An additional problem is students' difficulty with new and complex legal citation forms. Although Bluebook form is more compact than the Modern Language Association guidelines that most undergraduates are accustomed to, it is nevertheless difficult to master. Some schools add fear to the students' confusion by subtracting points for Bluebook errors even in the first written assignment. Linda Bergmann makes another good point: we need to help students distinguish test-taking skills from research skills. Bergmann, supra note 5.
19. David Shakow believes law teachers can help students avoid plagiarism by making clear what the goal of an assignment is and stressing that the answer to the question is not as important as the route to get there. A focus on the process of analysis helps students understand why citation is important. Computers and Plagiarism, 42 J. Legal Educ. 458, 460 (1992).
20. Newman v. Burgin, 930 F.2d 955, 960 (1st Cir. 1991). In Newman, a teacher charging "seriously negligent scholarship" did not follow the school's own Red Book procedures. But the procedures in the Red Book were not required by the university. Id. at 960-61. Because the charge and the resulting process were "fair," the court held that no due process requirement was violated. Id. at 963.
21. Newman v. Burgin, 930 F.2d 955, 960 (1st Cir. 1991). In Newman, a teacher charging "seriously negligent scholarship" did not follow the school's own Red Book procedures. But the procedures in the Red Book were not required by the university. Id. at 960-61. Because the charge and the resulting process were "fair," the court held that no due process requirement was violated. Id. at 963.
22. Newman v. Burgin, 930 F.2d 955, 960 (1st Cir. 1991). In Newman, a teacher charging "seriously negligent scholarship" did not follow the school's own Red Book procedures. But the procedures in the Red Book were not required by the university. Id. at 960-61. Because the charge and the resulting process were "fair," the court held that no due process requirement was violated. Id. at 963.
23. 453 A.2d at 274-75. See also Kalinsky v. State Univ. of N.Y. at Binghamton, 557 N.Y.S.2d 577, 578 (Sup. Ct. App. Div. 1990) ("Supreme Court concluded that petitioner was denied due process as a result of (1) the failure of the Associate Dean to reveal the evidence upon which he relied for his decision that the recommendation of the committee should be adhered to, and (2) his failure to state the reasons for the penalty imposed. . . . We agree with the Supreme Court that due process entitled the petitioner to a statement detailing the factual findings and the evidence relied upon by the decision-maker in reaching the determination of guilt. This has been recognized as one of the 'rudimentary elements of fair play' in the seminal case on the field of disciplinary proceedings at public institutions of higher education.") (citing Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961), cert. denied sub nom. Browder v. United States, 368 U.S. 930 (1961)).
24. 453 A.2d at 274-75. See also Kalinsky v. State Univ. of N.Y. at Binghamton, 557 N.Y.S.2d 577, 578 (Sup. Ct. App. Div. 1990) ("Supreme Court concluded that petitioner was denied due process as a result of (1) the failure of the Associate Dean to reveal the evidence upon which he relied for his decision that the recommendation of the committee should be adhered to, and (2) his failure to state the reasons for the penalty imposed. . . . We agree with the Supreme Court that due process entitled the petitioner to a statement detailing the factual findings and the evidence relied upon by the decision-maker in reaching the determination of guilt. This has been recognized as one of the 'rudimentary elements of fair play' in the seminal case on the field of disciplinary proceedings at public institutions of higher education.") (citing Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961), cert. denied sub nom. Browder v. United States, 368 U.S. 930 (1961)).
25. 453 A.2d at 274-75. See also Kalinsky v. State Univ. of N.Y. at Binghamton, 557 N.Y.S.2d 577, 578 (Sup. Ct. App. Div. 1990) ("Supreme Court concluded that petitioner was denied due process as a result of (1) the failure of the Associate Dean to reveal the evidence upon which he relied for his decision that the recommendation of the committee should be adhered to, and (2) his failure to state the reasons for the penalty imposed. . . . We agree with the Supreme Court that due process entitled the petitioner to a statement detailing the factual findings and the evidence relied upon by the decision-maker in reaching the determination of guilt. This has been recognized as one of the 'rudimentary elements of fair play' in the seminal case on the field of disciplinary proceedings at public institutions of higher education.") (citing Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961), cert. denied sub nom. Browder v. United States, 368 U.S. 930 (1961)).
26. 453 A.2d at 274-75. See also Kalinsky v. State Univ. of N.Y. at Binghamton, 557 N.Y.S.2d 577, 578 (Sup. Ct. App. Div. 1990) ("Supreme Court concluded that petitioner was denied due process as a result of (1) the failure of the Associate Dean to reveal the evidence upon which he relied for his decision that the recommendation of the committee should be adhered to, and (2) his failure to state the reasons for the penalty imposed. . . . We agree with the Supreme Court that due process entitled the petitioner to a statement detailing the factual findings and the evidence relied upon by the decision-maker in reaching the determination of guilt. This has been recognized as one of the 'rudimentary elements of fair play' in the seminal case on the field of disciplinary proceedings at public institutions of higher education.") (citing Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961), cert. denied sub nom. Browder v. United States, 368 U.S. 930 (1961)).
27. A law school that is part of a university may be required to follow the same honor code as the undergraduate division, or it may be allowed to supplement the undergraduate rules with its own.
28. According to Ralph D. Mawdsley , merely listing "plagiarism" on the list of offenses in an honor code may be enough warning. Legal Aspects of Plagiarism 5 (Topeka, 1985). Elsewhere Mawdsley concludes that even such a general mention of plagiarism as using "the ideas of another" could satisfy due process, but "it will do very little to inform students what kinds of acts are proscribed." The definition, rather than process, seems to be the point of the courts' interest Plagiarism Problems in Higher Education, 13 J.C. & U.L. 65, 66 (1986) [hereinafter Plagiarism Problems]. See also Bills, supra note 3, at 111 (insisting that, "[a]lthough 'fair warning,' a published definition does not by itself achieve common understanding. The adequacy of a definition depends upon agreement in the minds of everyone who reads it.") (footnotes omitted).
29. According to Ralph D. Mawdsley , merely listing "plagiarism" on the list of offenses in an honor code may be enough warning. Legal Aspects of Plagiarism 5 (Topeka, 1985). Elsewhere Mawdsley concludes that even such a general mention of plagiarism as using "the ideas of another" could satisfy due process, but "it will do very little to inform students what kinds of acts are proscribed." The definition, rather than process, seems to be the point of the courts' interest Plagiarism Problems in Higher Education, 13 J.C. & U.L. 65, 66 (1986) [hereinafter Plagiarism Problems]. See also Bills, supra note 3, at 111 (insisting that, "[a]lthough 'fair warning,' a published definition does not by itself achieve common understanding. The adequacy of a definition depends upon agreement in the minds of everyone who reads it.") (footnotes omitted).
30. According to Ralph D. Mawdsley , merely listing "plagiarism" on the list of offenses in an honor code may be enough warning. Legal Aspects of Plagiarism 5 (Topeka, 1985). Elsewhere Mawdsley concludes that even such a general mention of plagiarism as using "the ideas of another" could satisfy due process, but "it will do very little to inform students what kinds of acts are proscribed." The definition, rather than process, seems to be the point of the courts' interest Plagiarism Problems in Higher Education, 13 J.C. & U.L. 65, 66 (1986) [hereinafter Plagiarism Problems]. See also Bills, supra note 3, at 111 (insisting that, "[a]lthough 'fair warning,' a published definition does not by itself achieve common understanding. The adequacy of a definition depends upon agreement in the minds of everyone who reads it.") (footnotes omitted).
31. In 1995 the University of Texas law school discovered that its policy was printed in an appendix that students had to buy to supplement the larger undergraduate catalog, which is also available for purchase in the campus bookstores. I asked six classes of law students if they had read the university's policy on plagiarism, and no student had. Several, however, believed that the Law School Honor Code covered any dishonesty, including plagiarism. (Curiously, the University of Mississippi uses the guidelines from the University of Texas' almost-hidden supplement as the basis of its own handout on plagiarism - with proper acknowledgment, of course.) A year later, in 1996, the Texas dean of undergraduate students distributed bookmarks that defined academic dishonesty as "any act designed to gain an unfair academic advantage," concluding with "Texas is best . . . honestlyl" See Tracy Shuford, Cheating . . . And What Students Are Doing About It, 84 Texas Alcalde 24, 26 (1996). Today law students at Texas are required to read and sign a pamphlet.
32. Court Decisions, N.Y. L.J., June 30, 1995, at 30.
33. Berreby, supra note 8, at 4, 37.
34. Napolitano, 453 A.2d 263, (N.J. Super. Ct. App. Div. 1982). One author explains that the courts held the university only to an objective standard proof of plagiarism, rather than the more difficult subjective standard. Thus, plagiarism could be proved by an examination of the paper and the source, without having to determine whether the student intended, or did not intend, to plagiarize when she failed to furnish attribution. Napolitano was found guilty of plagiarism, and her diploma was withheld for one year. Mawdsley, Plagiarism Problems, supra note 19, at 67-68.
35. Napolitano, 453 A.2d 263, (N.J. Super. Ct. App. Div. 1982). One author explains that the courts held the university only to an objective standard proof of plagiarism, rather than the more difficult subjective standard. Thus, plagiarism could be proved by an examination of the paper and the source, without having to determine whether the student intended, or did not intend, to plagiarize when she failed to furnish attribution. Napolitano was found guilty of plagiarism, and her diploma was withheld for one year. Mawdsley, Plagiarism Problems, supra note 19, at 67-68.
36. See Mawdsley, Plagiarism Problems, supra note 19, at 69.
37. Id.
38. If you take another's sentence and change a few words, you still must give a citation. If you paraphrase, do not use quotations, but use a signal, usually see. There is a grey area between paraphrasing and putting something in your own words. You must decide whether or not a citation is necessary. Err on the side of caution. Usually you will want to include a citation, because a citation to authority increases the persuasiveness of what you are saying. Louis J. Sirico Jr., A Primer on Plagiarism, Second Draft, May 1988, at 11, quoted in Thomley, supra note 3, at 517.
39. Bills, supra note 3, at 127-30. Many professional writers would disagree about the degree of citation necessary, so it makes sense to discuss these constraints with the faculty. Elizabeth Fajans and Mary R. Falk recommend, among other conventions, that students footnote the citing source as well as the original source and always insert citations into even rough drafts to avoid letting an attribution "escape." Scholarly Writing for Law Students 91-95 (St. Paul, 1995).
40. Bills, supra note 3, at 127-30. Many professional writers would disagree about the degree of citation necessary, so it makes sense to discuss these constraints with the faculty. Elizabeth Fajans and Mary R. Falk recommend, among other conventions, that students footnote the citing source as well as the original source and always insert citations into even rough drafts to avoid letting an attribution "escape." Scholarly Writing for Law Students 91-95 (St. Paul, 1995).
41. See, e.g., Mawdsley, Plagiarism Problems, supra note 19, at 70 ("The nature of the intent in plagiarism which is to be taken into consideration should be clearly stated in the student handbook as part of the institution's contract with the student.").
42. I don't know about all institutions, but at the University of Texas many of the faculty have a difficult enough time understanding if the student even took the course deliberately.
43. It should be apparent that even when intent is specifically addressed in a plagiarism definition, more questions may be presented than are answered. The safer course is to expressly delete "intent" from the requisite elements of the charge, and expressly transfer the issue to the aggravation/mitigation side of the disciplinary equation. . . . Students may still argue that they "didn't mean it," but they will know that they were wrong. If, of course, they are provided with something more than a dusty dictionary. Bills, supra note 3, at 114-15.
44. Id. at 114. According to Bills, nearly two-thirds of law school deans in his survey believed that intent should affect sanctions. Id. at 116.
45. Many first-year brief assignments in the spring semester are "partner" assignments, and brief contests in the next two years are frequently open to "teams." Law review notes, however, are expected to be individually written, as are most seminar papers. See Collaboration, Second Draft, Mar. 1993, at 6.
46. In a November 1996 string of LAWPROF comments on the Internet, contributors justified requiring or not requiring collaboration. Here are some examples, all from LEGWRI-L@chicagokent.Kentlaw.edu. (Nov.-Dec. 1996) and on file with the author. In the course procedures is an explicit explanation of what students can and cannot do. The explanation basically tells students they are free to cooperate and collaborate, talk with one another, bounce ideas, etc., up until they begin to write. The writing has to be their own. We should reconsider the practice of equating cooperation with cheating. I probably encourage more collaboration than just about anyone, and I am certain that my students are the better for it. . . . Most successful lawyers I know rely on the advice and perspective of other lawyers. Of course, there is a difference between law school and law practice, and we need to be sure that each student possesses the skills necessary to practice law successfully. However, cooperation is a valuable tool in developing those skills. When we encourage cooperation, and incorporate it into our teaching methods, we don't stifle independence, we encourage it One of the skills we teach is collaboration, a skill which is a critical component of the arsenal of most really successful lawyers. So, the context of our [faculty] discussions took two paths: how do we teach and encourage appropriate collaboration and, at the same time, require the students to do the kind of independent work that is necessary for each of them to do to learn other skills they need to learn to be competent lawyers? . . . We resolved the problem several years ago by adopting a "Collaboration Code" that requires explicit written instructions from the teacher about when working together is permitted
47. One useful idea is a cover sheet for each assignment. On it the teacher can detail not only the assignment's topic, facts, due date, etc., but also the boundaries of collaboration allowed or prohibited. It takes less time to create the cover sheet than to deal with several student authors who misunderstand.
48. See 〈http://IvyEssays.com〉 (successful personal statements, law school essay packages); 〈http://www.papers-online.com〉 (Law and Criminal Justice, etc.).
49. See, e.g., Rene Sanchez, University Lawsuit Aimed at Stopping Internet Sales of Term Papers, Fort Worth Star-Telegram, Nov. 21, 1997, at 29; Bill Scanlon, College Cheaters Can Thrive Online: Internet Companies Write, Sell Term Papers, Denv. Rocky Mountain News, Nov. 24, 1997, at 5A.
50. See, e.g., Rene Sanchez, University Lawsuit Aimed at Stopping Internet Sales of Term Papers, Fort Worth Star-Telegram, Nov. 21, 1997, at 29; Bill Scanlon, College Cheaters Can Thrive Online: Internet Companies Write, Sell Term Papers, Denv. Rocky Mountain News, Nov. 24, 1997, at 5A.
51. Flint, supra note 11, at 1.
52. Refer students, for example, to Louis J. Sirico Jr.'s review of the Bluebook's 15th edition, which concludes with a lost section from the 14th edition listing the three goals for any legal citation: "(1) identify the source being cited, (2) distinguish it from other sources, and (3) help the reader locate the source." Fiddling with Footnotes, 60 U. Cin. L. Rev. 1273, 1280 (1992) (citations omitted). Or, to spark a discussion, ask them to summarize the goals of legal citation as they remember them from their first-year legal writing text.
53. Refer students, for example, to Louis J. Sirico Jr.'s review of the Bluebook's 15th edition, which concludes with a lost section from the 14th edition listing the three goals for any legal citation: "(1) identify the source being cited, (2) distinguish it from other sources, and (3) help the reader locate the source." Fiddling with Footnotes, 60 U. Cin. L. Rev. 1273, 1280 (1992) (citations omitted). Or, to spark a discussion, ask them to summarize the goals of legal citation as they remember them from their first-year legal writing text.
54. Quoted in Marilyn V. Yarbrough, Do as I Say, Not as I Do: Mixed Messages for Law Students, 100 Dick. L. Rev. 677, 681 (1996).
55. Practicing attorneys rarely miss the opportunity for court citations, of course, because they add substantive support But paragraphs of unpublished court analysis slip their way into memoranda arguments along with the legitimized citations to published opinions.
56. Intrafirm sharing is cost-effective and therefore understandable. . . . Probably the most common use of written materials prepared by other attorneys outside one's firm arises from the use of 'form books.' I have never seen a formbook credited . . . . Speakers at continuing legal education seminars frequently offer sample documents and forms . . . . There seems to be a common belief that court documents are public records. [But] it is considered inappropriate to borrow without permission from another law firm's documents that are not pleadings filed in a court file (such as wills, contracts, and leases). Legal Practice, Second Draft, Apr. 1993, at 8.
57. See Bills, supra note 3, at 121 ("Not one of the deans found any correlation between academic plagiarism and the almost universal recycling of documents in legal practice.").
58. Papay-Carder, supra note 3, at 267 (footnotes omitted). What about that magic moment between law school and actual practice, where a graduate applies for the state bar? In In re Zbiegien, 433 N.W.2d 871 (Minn. 1988), a student from William Mitchell College of Law plagiarized a first draft of a class paper but was not expelled. Investigating whether the state bar could refuse to admit him because of this incident, the court admitted that there was Minnesota precedent that a single incident can indeed keep someone from admission to the bar. Id. at 875 (citing In re Gahan, 279 N.W.2d 826 (Minn. 1979)). Nevertheless, the 1988 Minnesota court held: "We cannot conclude, however, that a single act of plagiarism while in law school is necessarily sufficient evidence to prove lack of good character and fitness to practice law." Id. at 875. The question ceased to be one of plagiarism and became one of character and fitness; the court refused to accept one incident as "sufficient evidence" against character and fitness.
59. Papay-Carder, supra note 3, at 267 (footnotes omitted). What about that magic moment between law school and actual practice, where a graduate applies for the state bar? In In re Zbiegien, 433 N.W.2d 871 (Minn. 1988), a student from William Mitchell College of Law plagiarized a first draft of a class paper but was not expelled. Investigating whether the state bar could refuse to admit him because of this incident, the court admitted that there was Minnesota precedent that a single incident can indeed keep someone from admission to the bar. Id. at 875 (citing In re Gahan, 279 N.W.2d 826 (Minn. 1979)). Nevertheless, the 1988 Minnesota court held: "We cannot conclude, however, that a single act of plagiarism while in law school is necessarily sufficient evidence to prove lack of good character and fitness to practice law." Id. at 875. The question ceased to be one of plagiarism and became one of character and fitness; the court refused to accept one incident as "sufficient evidence" against character and fitness.
60. Papay-Carder, supra note 3, at 267 (footnotes omitted). What about that magic moment between law school and actual practice, where a graduate applies for the state bar? In In re Zbiegien, 433 N.W.2d 871 (Minn. 1988), a student from William Mitchell College of Law plagiarized a first draft of a class paper but was not expelled. Investigating whether the state bar could refuse to admit him because of this incident, the court admitted that there was Minnesota precedent that a single incident can indeed keep someone from admission to the bar. Id. at 875 (citing In re Gahan, 279 N.W.2d 826 (Minn. 1979)). Nevertheless, the 1988 Minnesota court held: "We cannot conclude, however, that a single act of plagiarism while in law school is necessarily sufficient evidence to prove lack of good character and fitness to practice law." Id. at 875. The question ceased to be one of plagiarism and became one of character and fitness; the court refused to accept one incident as "sufficient evidence" against character and fitness.
61. Papay-Carder, supra note 3, at 267 (footnotes omitted). What about that magic moment between law school and actual practice, where a graduate applies for the state bar? In In re Zbiegien, 433 N.W.2d 871 (Minn. 1988), a student from William Mitchell College of Law plagiarized a first draft of a class paper but was not expelled. Investigating whether the state bar could refuse to admit him because of this incident, the court admitted that there was Minnesota precedent that a single incident can indeed keep someone from admission to the bar. Id. at 875 (citing In re Gahan, 279 N.W.2d 826 (Minn. 1979)). Nevertheless, the 1988 Minnesota court held: "We cannot conclude, however, that a single act of plagiarism while in law school is necessarily sufficient evidence to prove lack of good character and fitness to practice law." Id. at 875. The question ceased to be one of plagiarism and became one of character and fitness; the court refused to accept one incident as "sufficient evidence" against character and fitness.
62. Papay-Carder, supra note 3, at 267 (footnotes omitted). What about that magic moment between law school and actual practice, where a graduate applies for the state bar? In In re Zbiegien, 433 N.W.2d 871 (Minn. 1988), a student from William Mitchell College of Law plagiarized a first draft of a class paper but was not expelled. Investigating whether the state bar could refuse to admit him because of this incident, the court admitted that there was Minnesota precedent that a single incident can indeed keep someone from admission to the bar. Id. at 875 (citing In re Gahan, 279 N.W.2d 826 (Minn. 1979)). Nevertheless, the 1988 Minnesota court held: "We cannot conclude, however, that a single act of plagiarism while in law school is necessarily sufficient evidence to prove lack of good character and fitness to practice law." Id. at 875. The question ceased to be one of plagiarism and became one of character and fitness; the court refused to accept one incident as "sufficient evidence" against character and fitness.
63. See Philip Crennan, Plagiarism and Legal Practice, 67 Law Inst. J. 128, 129 (1993).
64. Papay-Carder, supra note 3, at 255.
65. N.Y. Times, Sept. 18, 1987, at A1 (quoting Biden as saving that when he wrote his memorandum he had "misunderstood the need to cite sources carefully").
66. Teaching plagiarism was taken to new heights at the American University in the fall of 1997. First-year law students were told to read about and write about cases that had been selected to inform them about attribution rules and sanctions that might accompany the failure to follow them. Two of the cases dealt specifically with the tragic effect that a single incident of plagiarism can have in later life: In re Lamberis, 443 N.E.2d 549 (Ill. 1982), and In re Zbiegien, 433 N.W.2d 871 (Minn. 1988). A subsequent assignment had the students write a memorandum about a first-year student who plagiarized her law school memorandum. Fall 1997 Syllabus for Legal Methods Program (on file with author).
67. Teaching plagiarism was taken to new heights at the American University in the fall of 1997. First-year law students were told to read about and write about cases that had been selected to inform them about attribution rules and sanctions that might accompany the failure to follow them. Two of the cases dealt specifically with the tragic effect that a single incident of plagiarism can have in later life: In re Lamberis, 443 N.E.2d 549 (Ill. 1982), and In re Zbiegien, 433 N.W.2d 871 (Minn. 1988). A subsequent assignment had the students write a memorandum about a first-year student who plagiarized her law school memorandum. Fall 1997 Syllabus for Legal Methods Program (on file with author).
68. An excellent resource for incorporating plagiarism instruction into legal writing or legal methods courses is Susan Dunham's Course Objectives for Washington College of Law's Legal Methods Program, Fall 1997 (on file with author). The 72-page packet includes an honor code, Guidelines for Proper Attribution, and cases involving plagiarism.
69. See, e.g., Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility, 5th ed. (Westbury, 1991); Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method (Boston, 1994); Charles W. Wolfram, Modern Legal Ethics (St. Paul, 1986); Robert H. Aronson et al., Problems, Cases, and Materials in Professional Responsibility (St. Paul, 1985); Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (Boston, 1995); John Floyd Sutton & John S. Dzienkowski, Cases and Materials on the Professional Responsibility for Lawyers (St Paul, 1989); Mortimer D. Schwartz et al., Problems in Legal Ethics, 3d ed. (St. Paul, 1992).
70. See, e.g., Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility, 5th ed. (Westbury, 1991); Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method (Boston, 1994); Charles W. Wolfram, Modern Legal Ethics (St. Paul, 1986); Robert H. Aronson et al., Problems, Cases, and Materials in Professional Responsibility (St. Paul, 1985); Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (Boston, 1995); John Floyd Sutton & John S. Dzienkowski, Cases and Materials on the Professional Responsibility for Lawyers (St Paul, 1989); Mortimer D. Schwartz et al., Problems in Legal Ethics, 3d ed. (St. Paul, 1992).
71. See, e.g., Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility, 5th ed. (Westbury, 1991); Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method (Boston, 1994); Charles W. Wolfram, Modern Legal Ethics (St. Paul, 1986); Robert H. Aronson et al., Problems, Cases, and Materials in Professional Responsibility (St. Paul, 1985); Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (Boston, 1995); John Floyd Sutton & John S. Dzienkowski, Cases and Materials on the Professional Responsibility for Lawyers (St Paul, 1989); Mortimer D. Schwartz et al., Problems in Legal Ethics, 3d ed. (St. Paul, 1992).
72. See, e.g., Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility, 5th ed. (Westbury, 1991); Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method (Boston, 1994); Charles W. Wolfram, Modern Legal Ethics (St. Paul, 1986); Robert H. Aronson et al., Problems, Cases, and Materials in Professional Responsibility (St. Paul, 1985); Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (Boston, 1995); John Floyd Sutton & John S. Dzienkowski, Cases and Materials on the Professional Responsibility for Lawyers (St Paul, 1989); Mortimer D. Schwartz et al., Problems in Legal Ethics, 3d ed. (St. Paul, 1992).
73. See, e.g., Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility, 5th ed. (Westbury, 1991); Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method (Boston, 1994); Charles W. Wolfram, Modern Legal Ethics (St. Paul, 1986); Robert H. Aronson et al., Problems, Cases, and Materials in Professional Responsibility (St. Paul, 1985); Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (Boston, 1995); John Floyd Sutton & John S. Dzienkowski, Cases and Materials on the Professional Responsibility for Lawyers (St Paul, 1989); Mortimer D. Schwartz et al., Problems in Legal Ethics, 3d ed. (St. Paul, 1992).
74. See, e.g., Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility, 5th ed. (Westbury, 1991); Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method (Boston, 1994); Charles W. Wolfram, Modern Legal Ethics (St. Paul, 1986); Robert H. Aronson et al., Problems, Cases, and Materials in Professional Responsibility (St. Paul, 1985); Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (Boston, 1995); John Floyd Sutton & John S. Dzienkowski, Cases and Materials on the Professional Responsibility for Lawyers (St Paul, 1989); Mortimer D. Schwartz et al., Problems in Legal Ethics, 3d ed. (St. Paul, 1992).
75. See, e.g., Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility, 5th ed. (Westbury, 1991); Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method (Boston, 1994); Charles W. Wolfram, Modern Legal Ethics (St. Paul, 1986); Robert H. Aronson et al., Problems, Cases, and Materials in Professional Responsibility (St. Paul, 1985); Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (Boston, 1995); John Floyd Sutton & John S. Dzienkowski, Cases and Materials on the Professional Responsibility for Lawyers (St Paul, 1989); Mortimer D. Schwartz et al., Problems in Legal Ethics, 3d ed. (St. Paul, 1992).
76. See, e.g., Michael Scan Quinn, "Scholarly Ethics": A Response, 46 J. Legal Educ. 110 (1996).
77. This example is taken from a hypothetical on http://lawprof@chicagokent.Kentlaw.edu (spring 1996) on file with author. National responses ran the gamut: insist on academic dismissal; report the conduct to the state bar; leave the reaction to the student's thesis adviser; refuse to give credit for the course; suspend the student; put a note in the student's record. It is disturbing to know that law faculty could react so differently.