Plagiarism and legal scholarship in the age of information sharing: The need for intellectual honesty

Catholic University Law Review

Volumn 57, Issue 3, 2008, Pages 777-815

  Bast, Carol M ^a   Samuels, Linda B ^b  

^a UNIVERSITY OF CENTRAL FLORIDA   (United States)

^b GEORGE MASON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 49949120038     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (143)

1. Karoun Demirjian, What is the price of plagiarism?, CHRISTIAN SCI. MONITOR, May 11, 2006, at 14. One author suggests that because professors regard ethical violations as less serious than they did in the past, such incidences may be on the rise. Philip J. Langlais, Ethics for the Next Generation, CHRON. HIGHER EDUC. (Wash, D.C.), Jan. 13, 2006, at B11.
2. See, e.g., Lisa Takeuchi Cullen, Rule No. 1: Don't Copy, TIME, May 15, 2006, at 41 (discussing William Swanson, CEO of Raytheon, who plagiarized part of his acclaimed book of management maxims); see also infra note 66.
3. For example, the same company that developed Turnitin to detect student plagiarism, Turnitin, http://www.turnitin.com/static/plagiarism.html (last visited Mar. 21, 2008), also markets iThenticate to "publishers, corporations, law firms, and others" to allow them to identify plagiarism. iThenticate, http://www.ithenticate.com (last visited Mar. 21, 2008). iThenticate searches the Internet and some proprietary databases, such as ABI/Inform, Periodical Abstracts, and Business Dateline. iThenticate-Plagiarism Detection, http://www.ithenticate.com/static/features.html (last visited Mar. 21, 2008). iThenticate does not currently search Westlaw or LexisNexis. Thus, iThenticate may not be comprehensive enough at this time to detect all instances of plagiarism of published works, though it may have that capability in the future.
4. Judge Richard A. Posner suggests that a journalist's exposure of a plagiarist has an element of self interest. Exposing plagiarism may influence the reader to believe in the trustworthiness of the journalist who has spent the requisite time to ferret out the offending passages. RICHARD A. POSNER, THE LITTLE BOOK OF PLAGIARISM 76 (2007) ("Both [journalists and historians] hope by taking a hard line against plagiarism and fabrication to reassure the public that their practitioners are serious diggers after truth whose efforts, a form of 'sweat equity,' deserve protection against copycats.").
5. There is no doubt that today's ease of information sharing has made copying more accessible. Donald McCabe, who has authored a number of articles on plagiarism in education, blames the increase on the ease of online copying. See Demirjian, supra note 1. McCabe's research shows that fifty-eight percent of high school students admitted to plagiarizing within the last year. Id. Another study found that forty percent of undergraduates copy and paste online sources. Ben Arnoldy, Students Sue Company for Fights to Their Homework, CHRISTIAN SCI. MONITOR, Apr. 10, 2007, at 1.
6. When materials are downloaded and then edited, the new version often looks as finished as the original, rather than clearly appearing as a marked-up, edited work.
7. Although not the focus of this Article, copying can also infringe a copyright. See discussion infra Part I.E. A fairly new option for a digital author is to offer a Creative Commons license in the digital writing. There are a number of different types of Creative Commons licenses, each allowing certain use of the digital writing in exchange for the user crediting the author. For additional information on Creative Commons licenses, see Creative Commons, http://creativecommons.org (last visited Mar. 21, 2008).
8. Gray areas include activities such as republishing, see infra Part I.C; naming authors and contributors, see infra Part I.D; and the plagiarism standard for teaching materials, judicial opinions, and transactional documents, see discussion infra Parts II.A-C.
9. Evidence of plagiarism among professors, attorneys, and judges is largely anecdotal. These professionals would be understandably reluctant to reveal that they had plagiarized; professors would be even more reluctant to admit plagiarizing from student work. Thus, any reported percentages could be expected to be much lower than the actual rate at which plagiarism is occurring. The authors have not located any estimate of the amount of plagiarism committed by legal scholars. See Ellen Schrecker, Book Review, ACADEME ONLINE (Sept.-Oct. 2005), available at http://www.aaup.org/AAUP/ pubsres/academe/2005/SO/BR/schr.htm ("We do not know, perhaps cannot know, whether the incidence of academic fraud has increased over the past few years."); Susan Llewelyn Leach, Profs Who Plagiarize: How Often?, CHRISTIAN SCI. MONITOR, Apr. 27, 2005, at 15 ("Even if faculty plagiarism is not measurably on the rise - numbers are so hard to come by that it is hard to gauge whether it is - the attention aroused by the recent headlines, coupled with the emergence of antiplagiarism software, has resulted in far more scrutiny of academic research.").
10. Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 HASTINGS L.J. 167, 170 (2002).
11. Id. at 177; Ellen Gamerman, Legalized 'Cheating,' WALL ST. J., Jan. 21-22, 2006, at P1.
12. See David A. Thomas, How Educators Can More Effectively Understand and Combat the Plagiarism Epidemic, 2004 BYU EDUC. & L.J. 421, 422 (noting three common dictionary definitions of plagiarism, but arguing that these basic definitions are inadequate).
13. See, e.g., POSNER, supra note 4, at 11 (explaining that plagiarism is commonly thought of as "literary theft"); Green, supra note 10, at 173 (using the word "stealing" to describe plagiarism); Thomas, supra note 12, at 422 (noting that plagiarism denotes wrongful appropriation or theft of another's ideas as one's own); see also infra notes 31-41, 134-35 and accompanying text (describing self-plagiarism as borrowing from one's own prior publication without acknowledgement).
14. See, e.g., Green, supra note 10, at 181 (noting significant confusion about whether plagiarism requires a mental element); Vincent R. Johnson, Corruption in Education: A Global Legal Challenge, 48 SANTA CLARA L. REV. 1, 73-74 (2008) (indicating that no clear consensus exists as to whether plagiarism requires some level of mental culpability such as intent or negligence); Kenneth H. Ryesky, Part Time Soldiers: Deploying Adjunct Faculty in the War Against Student Plagiarism, 2007 BYU EDUC. & L.J. 119, 120 ("Plagiarism is composed of both intentional and unintentional acts that fail to give credit to the original source.").
15. See, e.g., POSNER, supra note 4, at 11; Green, supra note 10, at 173.
16. LEGAL WRITING INST., LAW SCHOOL PLAGIARISM v. PROPER ATTRIBUTION 2 (2003), available at http://www.lwionline.org/publications/plagiarism/ policy.pdf.
17. Id.
18. See id. at 3-12.
19. See id. at 2.
20. POSNER, supra note 4, at 33 (internal quotation marks omitted) (noting also that plagiarism is only one type of intellectual fraud).
21. See id. at 19-20 (discussing that an effective plagiarist induces a reader to believe the work is his).
22. See id. at 17 ("Concealment is at the heart of plagiarism.").
23. Id. at 33.
24. See id. at 21-23. Posner distinguishes between law clerks, whose tasks include preparing initial drafts of judicial opinions, and professors' research assistants. Id. at 23. The law clerk has consented to ghostwriting for the judge by taking the clerkship position, but it may not be clear whether the professor's research assistant has consented to the professor copying his writing. Id. ("Law clerks are hired on the clear understanding that they are writing for and in the name of their judge. This tends not to be the explicit understanding in the case of student research assistants. The research they do clearly belongs to the professor, but not their words.").
25. Laurie Stearns, Comment, Copy Wrong: Plagiarism, Process, Property, and the Law, 80 CAL. L. REV. 513, 516-17 (1992) (footnote omitted).
26. GORDON HARVEY, WRITING WITH SOURCES 22 (1998). This manual is used in the expository writing program at Harvard University. See Harvard Expository Writing Program, Writing Resources, http://isites.harvard.edu/icb/icb.do?keyword=k24101&tabgroupid=icb. tabgroup35038 (last visited Mar. 21, 2008).
27. Stearns, supra note 25, at 516-17.
28. See Stearns, supra note 25, at 513-14; infra note 30. While editing a book for publication, Stearns discovered at least five instances of plagiarism. The book's author attributed the plagiarism apparently to his failure to indicate passages copied verbatim from sources. Stearns, supra note 25, at 513-14. In the past, plagiarism of this type might not have been detected readily; however, plagiarism detection software may make detection more likely. See infra notes 141-43 and accompanying text.
29. Believing that written passages are one's own instead of remembering that the passages are based on something one has read is called cryptomnesia. POSNER, supra note 4, at 97.
30. For example, Central Connecticut State University's president, Richard L. Judd, plagiarized passages of an opinion article published in the newspaper, and took responsibility for his actions. Judd stated, "'I mistakenly assumed notes I had made were my own, and I thus incorporated them without attribution.'" He added, "'I should have done a better job of vetting my text. I had no intention of using another's words or misleading readers....'" Audrey Williams June, Connecticut President Accused of Plagiarism, CHRON. HIGHER EDUC. (Wash., D.C.), Mar. 26, 2004, at A30.
31. See Stearns, supra note 25, at 543-44. An additional concern is that self-plagiarism can involve copyright infringement. When an article is published in a professional journal, the author customarily assigns the copyright in the article to the journal. A second journal may infringe the first journal's copyright if the second journal publishes an article containing similar or identical wording to an article by the same author previously published in the first journal. See id. at 544; see also Patrick M. Scanlon, Song from Myself: An Anatomy of Self-Plagiarism, 1 PLAGIARY 1, 4 (2007).
32. For example, Judge Posner views self-plagiarism as "a distinct practice and rarely an objectionable one." POSNER, supra note 4, at 108. Posner's view conflicts with the publication guidelines of various scientific organizations. See infra notes 33-36, 39, 45-46.
33. There are other dangers in allowing self-plagiarism. See Christian Collberg & Stephen Kobourov, Self-Plagiarism in Computer Science, 48 COMM. ACM 88, 90 (2005). In the article, the two computer scientist authors condemn self-plagiarism and recognize the following "detrimental effects" of the practice: It can give the public the idea that research dollars are spent on rehashing old results rather than on original research, simply to further the careers of researchers; It can indicate to our colleagues that academic dishonesty is not a big problem. In the worst case this could lead to more serious forms of academic dishonesty becoming more acceptable; It rewards authors who break down their results into overlapping least-publishable units over those who publish each result only once; and Whenever a self-plagiarized paper is allowed to be published, another, more deserving paper, is not. Id.
34. MIGUEL ROIG, AVOIDING PLAGIARISM, SELF-PLAGIARISM, AND OTHER QUESTIONABLE WRITING PRACTICES 17-19 (2006), http://facpub.stjohns.edu/ ∼roigm/plagiarism.doc. Dr. Roig's paper was one of the educational resources created for the "responsible conduct of research" and supported by the U.S. Office of Research Integrity (ORI). Id. at 1. ORI "promotes integrity in biomedical and behavioral research supported by the U.S. Public Health Service (PHS) at approximately 4,000 institutions worldwide." Office of Research Integrity, http://ori.dhhs.gov/ (last visited Mar. 21, 2008).
35. ROIG, supra note 34, at 17.
36. Id. Roig's focus is publication in the sciences, with a heavy emphasis on empirical data. He calls two questionable practices concerning the publication of empirical data "salami slicing" and "data augmentation." Id. at 19-20. Salami slicing references the practice of dividing the data derived from a single study so as to publish more than one article. Id. Data augmentation references the practice of publishing one article based on a study, collecting more related data, and publishing a second article based on the combined data. Id. at 20.
37. This may be the case for practitioner-oriented publications.
38. Even if less objectionable, copying from a previously published article is plagiarism and may be copyright infringement. See infra note 135.
39. See Chris Graf et al, Best Practice Guidelines on Publication Ethics: A Publisher's Perspective, 61 INT'L J. CLINICAL PRAC. 1, 4 (2007), available at http://www.blackwell-synergy. com/doi/pdf/10.1111/j.1742-1241.2006.01230.x. One prominent publisher suggests the following: "Journal instructions should clearly explain what is, and what is not, considered to be prior publication. Abstracts and posters at conferences [and] results presented at meetings... are not considered... to be prior publication." Id.
40. See R.A. Val, The Scoop on Plagiarism, IEEE ROBOTICS & AUTOMATION MAG., Sept. 2007, at 4 ("One of the most common questions that arises is the republication of one's conference paper in a journal. Researchers' views vary on the propriety of this, and the customs vary from field to field. I have seen reviewers automatically reject such papers on the grounds that the paper has already been published. However, this is not necessarily valid. The IEEE gives the editors-in-chief (EICs) discretion regarding republication. As stated in Section 8.1.7 of the Publication, Services and Products Board (PSPB) Operations Manual: 'The publication of a conference paper or papers in an IEEE periodical is permitted at the discretion of the editor provided that all the papers have undergone the standard peer review for the specific periodical in question.' Thus, it is important the EICs ensure that they have a clearly stated policy regarding republication of conference papers and that the policy is promulgated to both reviewers and authors. Authors should be sure they understand the policy before submitting conference papers to IEEE journals.").
41. See Scott Carlson, Journal Publishers Turn to Software to Root Out Plagiarism by Scholars, CHRON. HIGHER EDUC. (Wash., D.C.), June 10, 2005, at A27. For example, Christian Colberg developed software called the Self-Plagiarism Detection Tool after he discovered that portions of some papers submitted to conferences for publication had been previously published. Id.; see also SPlaT - The Self-Plagiarism Tool, http://splat.cs.arizona.edu (last visited Mar. 21, 2008).
42. EDITORIAL POLICY COMM., COUNCIL OF SCI. EDITORS, CSE's WHITE PAPER ON PROMOTING INTEGRITY IN SCIENTIFIC JOURNAL PUBLICATIONS 18 (2006), available at http://www. councilscienceeditors.org/editorial_policies/whitepaper/entire_whitepaper. pdf; see also ROIG, supra note 34, at 15-16 (explaining that organizations disagree over whether a lack of authorship for students or similar contributors constitutes plagiarism). The problem of an article's named authors not accurately reflecting the persons who should be named as authors is not exclusive to scientific writing and affects other academic disciplines, including the law. See, e.g., POSNER, supra note 4, at 22-23 ("[M]any law professors continue, particularly in the legal treatises and textbooks they write, to publish without acknowledgement material drafted by their student research assistants.").
43. See infra notes 79-82 and accompanying text. Evidence of a professor plagiarizing from a student is largely anecdotal. Professors would be understandably reluctant to reveal that they had plagiarized student writing, and the authors' research did not locate any statistics indicating the frequency with which professors plagiarize. Henriette Haas, a forensic psychologist and lecturer at the University of Zurich, studied the phenomenon of senior faculty members plagiarizing the work of students or more junior faculty members and identified a number of "[r]ed flags of scientific misconduct." Henriette Haas, Haas-Consulting, Against Plagiarism (2007), http://www.haas- consulting.com/plagiarism.html. It is unknown whether a professor plagiarizing a student's writing is a common practice, but based on anecdotes, it appears to be more than a myth.
44. A similar situation arises when someone pays another for research, such as in a work-for-hire arrangement.
45. For example, the ORI investigates incidents of misconduct, including plagiarism, under the Federal Policy on Research Misconduct. NICHOLAS H. STENECK, DEP'T OF HEALTH & HUMAN SERVS., ORI INTRODUCTION TO THE RESPONSIBLE CONDUCT OF RESEARCH 9-10, 20-21 (2006), available at http://ori.hhs.gov/documents/rcrintro.pdf. The ORI encourages research integrity by supporting writing that describes responsible research conduct. Publications concerning responsible conduct and information on misconduct investigations are accessible from the ORI website. See Office of Research Integrity, supra note 34. The website of the Online Ethics Center at the National Academy of Engineering, formerly the Online Ethics Center for Engineering and Science, contains more information on the ethics codes of various engineering and science organizations. Online Ethics Center, http://onlineethics.org (last visited Mar. 21, 2008).
46. INT'L COMM. OF MED. JOURNAL EDITORS, UNIFORM REQUIREMENTS FOR MANUSCRIPTS SUBMITTED TO BIOMEDICAL JOURNALS: WRITING AND EDITING FOR BIOMEDICAL PUBLICATION (2007), available at http://www.icmje.org. "All contributors who do not meet the criteria for authorship should be listed in an acknowledgments section." Id. IEEE (formerly the Institute of Electrical and Electronics Engineers, Inc.) adopted an operations manual that tracks the ICMJE definition of authorship. IEEE, IEEE PUBLICATION SERVICES AND PRODUCTS BOARD OPERATIONS MANUAL 56 (2008), available at http://www.ieee.org/portal/cms_docs_iportals/iportals/publications/PSPB/ opsmanual.pdf. The manual also contains a detailed flowchart to be followed in investigating plagiarism allegations, including improper use of passages from one's own previously published articles, and sanctions for plagiarism. Id. at 61-63. Sanctions include a written apology to the author whose work has been plagiarized, a written notice in the IEEE publication where the plagiarized paper was published, and suspension of publication privileges. Id. at 64-70. In 2006, Blackwell Publishing released a publication ethics guide that adopts the ICMJE definition of authorship. Graf, supra note 39, at 3; see also Blackwell Publishing Press Room, Blackwell First Publisher to Deliver Comprehensive Guide on Publication Ethics, http://www.blackwellpublishing.com/press/pressitem.asp?ref=988 (last visited Mar. 21, 2008). The ICMJE definition of authorship has been replaced by some scientists and scientific organizations with a standard requiring that, in lieu of naming authors, an article should name contributors and state each contributor's role in producing the article. See EDITORIAL POLICY COMM., supra note 42, at 17. This new standard reflects the numerous people who typically contribute to a scientific article. See id.; see also COMM. ON PUBLICATION ETHICS, GUIDELINES ON GOOD PUBLICATION PRACTICE 70 (2003), available at http://www.publicationethics.org.uk/guidelines/ reports/2003/2003pdf15.pdf (detailing similar standards adopted in the United Kingdom that do not provide a specific definition of authorship, but do indicate that authorship should be based on a substantial contribution to the article and an acceptance of the responsibility that comes with being named as an author).
47. The authors suggest a standard for naming authors in legal scholarship loosely based on the ICMJE standard for authorship. See infra note 139 and accompanying text.
48. See supra notes 25-27 and accompanying text.
49. 17 U.S.C. § 504 (2000 & Supp. V 2005).
50. Documents are "public domain" documents either because they are not copyrightable or because the document's copyright protection has expired. See infra notes 54-60 and accompanying text for further discussion of documents in the public domain.
51. See 17 U.S.C. § 504 (making one who infringes another's copyright potentially liable, either for actual damages or for statutory damages not less than $750 and not more than $30,000 per infringed work).
52. 17 U.S.C. § 107 (2000).
53. Id. The fair use exception to copyright protection provides: Notwithstanding the provisions of sections 106 and 106A [outlining the rights associated with copyright protection], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Id.
54. See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33 (2003).
55. 17 U.S.C. §§ 105, 302 (2000); see also Dastar Corp., 539 U.S. at 33-35.
56. Dastar Corp., 539 U.S. at 33-34. The term of copyright generally is life of the author plus seventy years. 17 U.S.C. § 302.
57. See 17 U.S.C. § 105.
58. Katie M. Colendich, Note, Who Owns "the Law"? The Effect on Copyrights When Privately-Authored Works are Adopted or Enacted by Reference into Law, 78 WASH. L. REV. 589, 599-600 (2003).
59. Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791, 806 (5th Cir. 2002) (en banc).
60. See Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516, 521 (9th Cir. 1997); CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 74 (2d Cir. 1994).
61. See generally SCHOLARLY PUBLISHING & ACADEMIC RESOURCES COALITION, AUTHOR RIGHTS (2006), available at http://www.arl.org/sparc/bm∼doc/ SPARC_Author Rights2006.pdf (describing how an author can modify publication agreements in order to retain copyright in his own work, and noting that "[t]he author is the copyright holder... unless and until [he] transfers] the copyright to someone else in a signed agreement"). Some academic organizations that publish academic journals allow the author to retain copyright in the article, with the academic organization retaining copyright in the compilation of articles.
62. See supra notes 45-46 and accompanying text.
63. The pressure to publish fuels the need for numerous law journals. Washington and Lee University's web-based guide to legal publications and rankings lists over 1400 outlets for law-related scholarship. See Washington & Lee Law School, Law Journals: Submissions and Ranking, http://lawlib.wlu.edu/LJ/index.aspx (last visited Mar. 21, 2008). The ExpressO online delivery service has automated the law review submission process. ExpressO, http://law.bepress.com/expresso/ (last visited Mar. 21, 2008). Most professors make numerous submissions and have multiple publications during the course of their careers.
64. See supra notes 42-44 and accompanying text.
65. POSNER, supra note 4, at 107.
66. Plagiarism can have some serious consequences. See infra notes 67-77 and accompanying text. In a recent highly publicized case, a Harvard undergraduate's novel was pulled from distribution after similarities with other works were noted. David A. Fahrenthold, Novelist's Unconscious Borrowed a Few Phrases, WASH. POST, Apr. 25, 2006, at C1. Though Kaavya Viswanathan claimed "unconscious copying" and initially said that the book would be reissued without the offending passages, id., the publisher pulled it from sale and decided not to reissue. David A. Fahrenthold, Publisher Pulls Young Author's Suspect Novel, WASH. POST, Apr. 28, 2006, at C1. Even a figure in a business unrelated to publishing can be embarrassed by charges of plagiarism. For instance, Raytheon's chief executive officer William Swanson "apologized at the annual shareholders' meeting, and... [was] docked... the equivalent of $1 million" after it was discovered that he had copied his free booklet Swanson's Unwritten Rules of Management from a sixty-year-old engineering publication. Cullen, supra note 2. Carl Durrenberger, a Hewlett Packard engineer who discovered the plagiarism, posted "Bill Swanson of Raytheon is a plagiarist!" on his blog. Id. Swanson claimed that his booklet was based on a presentation compiled from various materials he kept in a file, and that the plagiarism was "an innocent mix-up." Id. Explanations similar to Viswanathan's and Swanson's are commonly proffered by those who claim their plagiarism was unintentional. See supra Part I.B.
67. Apparently, Mr. Ogletree's research assistant inserted the paragraphs, and quotation marks were omitted by mistake. Scott Smallwood, The Fallout, CHRON. HIGHER EDUC. (Wash., D.C.), Dec. 17, 2004, at A12 (internal quotation marks omitted).
68. Id. The potential for a libel lawsuit against the accuser or the press may chill valid plagiarism charges. In today's litigious society, academic institutions, academic journals, and professional organizations might be reluctant to discipline the alleged plagiarist for fear of being sued for libel, among other charges. See David Glenn, Judge or Judge Not?, CHRON. HIGHER EDUC. (Wash., D.C.), Dec. 17, 2004, at A16. Discoverers of plagiarism may fear coming forward, and those that do may feel that little is being done to discipline the plagiarist or that the discipline imposed is not severe enough. See id. One who discovers plagiarism may believe that an educational institution might whitewash the plagiarism claim because the alleged plagiarist is prominent or because the institution fears that the plagiarism claims may reflect poorly on the institution. The complainant may suffer in the same manner as whistleblowers often do. See id. Some professional organizations may not have the funds or the personnel to investigate the plagiarism charges and pursue sanctions against the offender. See id. (noting that most professional organizations have "no teeth" when it comes to imposing sanctions for misconduct).
69. Smallwood, supra note 67. Harvard University investigated the plagiarism charges against Tribe, finding that although the plagiarism was "unintentional," it was "a significant lapse in proper academic practice." News in Brief: 'Unintentional' Lapse, CHRON. HIGHER EDUC. (Wash., D.C.), Apr. 29, 2005, at A10 (internal quotation marks omitted).
70. Jennifer Howard, Calif. Press Will Publish Controversial Book on Israel, CHRON. HIGHER EDUC. (Wash., D.C.), July 22, 2005, at A1.
71. Id.
72. Id. Finkelstein changed the term "plagiarizes" to "lifts from" or "appropriates from without attribution" and included his findings and the Harvard University definition of plagiarism in the book appendix. Id. Lynne Withey, director of the University of California Press and president of the Association of American University Presses, urged the university presses not to refrain from publishing controversial books. Id. Withey, who was embroiled in the disagreements between Finkelstein and Dershowitz, noted the existence of "'a political culture that seems bent on suppressing information.'" Id. DePaul University denied Finkelstein tenure in June of 2007 and canceled his fall 2007 classes. Jennifer Howard, DePaul Cancels Courses of Professor Who Lost Tenure Bid, CHRON. HIGHER EDUC. (Wash., D.C.), Sept. 7, 2007, at A13. Finkelstein resigned after settling with DePaul. Paula Wasley, Tenure Dispute at DePaul Ends With a Settlement and a Resignation, CHRON. HIGHER EDUC. (Wash., D.C.), Sept. 14, 2007, at A9.
73. For example, in 2005, the University of Missouri at Kansas City forced the dean of the College of Arts and Sciences to take administrative leave after the dean admitted to including plagiarized passages in his December 2003 commencement address. Thomas Bartlett, Missouri Dean Appears to Have Plagiarized a Speech by Cornel West, CHRON. HIGHER EDUC. (Wash., D.C.), June 24, 2005, at A13; Dan Carnevale, Plagiarizing Dean Is Put on Leave, CHRON. HIGHER EDUC. (Wash., D.C.), July 1, 2005, at A10. Oklahoma State University removed a geography professor from the classroom and took away his designation as regents professor, an honor for those professors with a national reputation for scholarship. In addition, the professor's publisher classified his book as out of print because it contained a number of long plagiarized sections. Thomas Bartlett & Scott Smallwood, Just Deserts?, CHRON. HIGHER EDUC. (Wash., D.C.), April 1, 2005, at A26 [hereinafter Bartlett & Smallwood, Just Deserts?]; see also Thomas Bartlett & Scott Smallwood, Four Academic Plagiarists You've Never Heard Of, CHRON. HIGHER EDUC. (Wash., D.C.), Dec. 17, 2004, at A8 [hereinafter Bartlett & Smallwood, Four Academic Plagiarists]. A history professor lost jobs at the University of Quebec and at the State University of New York at Plattsburgh for allegedly including several pages of a chapter plagiarized from a history book. Bartlett & Smallwood, Just Deserts?, supra; see also Bartlett & Smallwood, Four Academic Plagiarists, supra. The American Historical Association determined that a Wichita State University history professor's published essay plagiarized an unpublished dissertation, which was later published as a book. The history professor was denied tenure at one institution and lost a tenure-track position at another institution. Bartlett & Smallwood, Four Academic Plagiarists, supra; see also A Plagiarized Writer Speaks Out About Her Case, CHRON. HIGHER EDUC. (Wash., D.C.), Apr. 1, 2005, at A27. A professor who had served for thirty years at the New School University's Parsons School of Design resigned because sections of his book had been copied from other published books. Scott Smallwood, Professor at New School U. Resigns, CHRON. HIGHER EDUC. (Wash., D.C.), Oct. 1, 2004, at A14. Parsons' dean stated, "'Frankly, we could not tolerate a faculty member who had engaged in the same infraction that we would dismiss a student for.'" Id.; see also Scott McLemee, Hot Type, CHRON. HIGHER EDUC. (Wash., D.C.), Sept. 24, 2004, at A18. The president of Central Connecticut State University resigned after plagiarizing several passages in a newspaper article. Sharon Walsh, Accused of Plagiarism, President to Retire, CHRON. HIGHER EDUC. (Wash., D.C.), Apr. 2, 2004, at A29. The University of New Hampshire found that a professor had engaged in '"scholarly misconduct'" for including in a newspaper article excerpts from a letter written by the governor of Delaware. Scott Smallwood, U. of New Hampshire Disciplines Professor Accused of Plagiarizing a Governor's Letter, CHRON. HIGHER EDUC. (Wash., D.C.), Apr. 2, 2004, at A12. The Naval Academy revoked a professor's tenure and demoted him from associate to assistant professor after it was discovered that passages in the book he authored were plagiarized. Thomas Bartlett, Naval Academy Demotes Professor Accused of Plagiarism in a Book on the A-Bomb, CHRON. HIGHER EDUC. (Wash., D.C.), Nov. 7, 2003, at A12.
74. See supra note 73.
75. Alan R. Price, Cases of Plagiarism Handled by the United States Office of Research Integrity 1992-2005, 1 PLAGIARY 46, 46 (2006). Price describes the circumstances of each instance and the sanctions imposed. Id. at 47-51.
76. 42 C.F.R. §§ 93.407, 93.411 (2007); Price, supra note 75, at 47.
77. The information is included in a number of publications including the Federal Register, the NIH Guide to Grants and Contracts, the ORI Case Summaries, the ORI Newsletter, and the ORI Annual Report. Price, supra note 75, at 51-52. ORI required certification of most of the plagiarists and prohibited them from serving in Public Health Service committee positions for varying periods of time. Id. at 47. In addition, ORI debarred one of the eight persons who had committed only plagiarism but debarred nine of the eleven persons whose misconduct was a combination of data falsification and plagiarism. Id. at 47, 49.
78. For example, in Reverend William W. Meissner's book The Ethical Dimension of Psychoanalysis: A Dialogue, published in 2003 by the State University of New York Press, he allegedly plagiarized portions of Ernest Wallwork's 1991 book Psychoanalysis and Ethics. Thomas Bartlett, Theology Professor is Accused of Plagiarism in His Book on Ethics, CHRON. HIGHER EDUC. (Wash., D.C.), Jan. 21, 2005, at A10. Wallwork complained to SUNY Press, but no action was taken. The Press's interim director stated, "'We decided that any errors in attribution were inadvertent and minor'" and added, "'[w]e didn't feel that there was a situation that warranted further action on our part.'" Id. Wallwork also complained to the Boston Psychoanalytic Society, which concluded that there was a "'serious breach of professional and scholarly standards.'" Id. The Press planned to reexamine Wallwork's claims once it received the Society's decision. Id.
79. Yu v. Peterson, 13 F.3d 1413, 1414-15 (10th Cir. 1993).
80. Bartlett & Smallwood, Just Deserts?, supra note 73 (internal quotation marks omitted). Dwayne Kirk, a graduate student at Arizona State University, alleged that Professor Charles Arntzen had plagiarized one third of a chapter in his book from Kirk's paper. After Kirk complained to the book editor, Kirk was acknowledged as co-author of the chapter. Id.; see also, Thomas Bartlett & Scott Smallwood, Mentor vs. Protégé, CHRON. HIGHER EDUC. (Wash., D.C.), Dec. 17, 2004, at A14.
81. Bartlett & Smallwood, Just Deserts?, supra note 73.
82. Demas v. Levitsky, 738 N.Y.S.2d 402, 406-07 (N.Y. App. Div. 2002). After receiving her Ph.D in Education from Cornell University, Antonia Demas filed a grievance with the institution claiming that David Levitsky, a member of her graduate advisory committee, had allegedly plagiarized parts of her dissertation in a grant application and failed to name her as co-principal investigator. Id. at 405-06. Although a Cornell faculty committee found that Levitsky had not plagiarized from Demas, the original members of Demas' graduate advisory committee claimed that Levitsky had plagiarized Demas' work and criticized the faculty committee investigation. Id. at 406-07. Demas sued Levitsky and Cornell for "misappropriation, fraud, breach of contract, breach of fiduciary duty, negligence, tortious interference with prospective economic advantage, defamation, and intentional infliction of emotional distress." Id. at 407. The trial court denied the defendants' motions to dismiss the complaint. Id.
83. Thomas Bartlett, Ohio U. Investigates Plagiarism Charges, CHRON. HIGHER EDUC. (Wash., D.C.), Mar. 10, 2006, at A9. Perhaps disgruntled when told that his own master's thesis was "unacceptable," Matrka began reviewing library copies of approved theses and discovered plagiarism, at least fifty pages in one instance and fourteen pages verbatim in another instance. Id. Matrka leveled claims
84. This incident was informally reported to one of the authors. In an upper-level undergraduate or in a graduate class, one can generally assume that the class materials are unique to the professor, especially where there is no one textbook that fits the subject matter of the class and the professor implies authorship of all materials brought into the classroom. In those circumstances, a student might feel that the professor has plagiarized if the student discovers that the professor borrowed passages from another author.
85. POSNER, supra note 4, at 22; see also Terri LeClercq, Failure to Teach: Due Process and Law School Plagiarism, 49 J. LEGAL EDUC. 236, 240 (1999) (discussing the memoranda of law students and noting that "in legal writing, it is no embarrassment to lean on another's opinion: it is a requirement").
86. POSNER, supra note 4, at 21.
87. Id. at 20-21.
88. Id. at 20-22.
89. 470 U.S. 564, 572 (1985). In Anderson, the U.S. Court of Appeals for the Fourth Circuit had roundly criticized the trial court judge for adopting the substance of the prevailing party's proposed findings. Id. at 571. Although not fond of the practice, the Court took a more measured approach. "[E]ven when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Id. at 572.
90. Id. at 572-73. "[T]he District Court in this case does not appear to have uncritically accepted findings prepared without judicial guidance by the prevailing party." Id. at 572.
91. Id.; see also Kristen Fjeldstad, Comment, Just the Facts, Ma'am - A Review of the Practice of the Verbatim Adoption of Findings of Fact and Conclusions of Law, 44 ST. LOUIS U. L.J. 197, 197 (2000).
92. Anderson, 470 U.S. at 573 ("[W]e see no reason to doubt that the findings issued by the District Court represent the judge's own considered conclusions.").
93. See In re Cmty. Bank of N. Va., 418 F.3d 277, 300-02 (3d Cir. 2005). There, the appellate court concluded that the trial court had not properly certified the settlement class because the court adopted findings of fact and conclusions of law submitted by the class attorney verbatim. The appellate court commented that the only evidence that the trial court exercised independent judgment was its statement that it did. Id. at 301. The trial court requested proposed findings of fact and conclusions of law and indicated that it '"would adopt [them] basically,'" and almost every trial court order was adopted verbatim from what the parties submitted. Id. The appellate court was "concerned that the District Court may have abdicated its role as a neutral and independent adjudicator or, at the very least, sacrificed independent judgment for administrative efficiency." Id. The appellate court added that "a court must set forth persuasive reasons, stated with objectivity, why the submissions of counsel totally reflect the independent judgment of the court." Id.
94. 380 F.3d 729, 731-32 (3d Cir. 2004).
95. Id. at 731. The trial court, aside from some minor changes, made only two substantive revisions to the proposed order and opinion. Id.
96. Id. at 731-32.
97. Id. at 732.
98. Id. at 730-31. On remand, the trial judge provided an explanation for his premature decision-making. Bright v. Westmoreland County, 341 F. Supp. 2d 525, 525-29 (W.D. Pa. 2004).
99. Bright, 380 F.3d at 732.
100. While this practice may raise copyright issues, liability is rarely, if ever, imposed because the prevailing attorney is flattered to have the attorney's writing inserted into the opinion. Also, much judicial copying would fall within the "fair use" exception because of its limited scope and its noncommercial, and perhaps even educational, purpose. See supra note 53, and accompanying text.
101. For example, Judge Posner labels "judicial plagiarism" an "oxymoron." POSNER, supra note 4, at 72.
102. Laurie Cunningham, Florida $145 Billion Wipeout Survives, NAT'L L.J., Sept. 29, 2003, at 17; Gary Young, Parts of Fla. Opinion Are a Bit Familiar, NAT'L L.J., Aug. 18-25, 2003, at 1. The case was Liggett Group, Inc. v. Engle, 853 So. 2d 434 (Fla. Dist. Ct. App. 2003), approved in part, vacated in part, 945 So. 2d 1246 (Fla. 2006).
103. See K.K. DuVivier, Nothing New Under the Sun-Plagiarism in Practice, 32 COLO. LAW. 53, 53 (2003).
104. See id. ("Our precedent-based system emphasizes consistency over originality and bases ideas on those of others in the past.").
105. See id.
106. See id. ("One reason legal language is reminiscent of early English is because attorneys repeat wording verbatim, time after time, to avoid inconsistency or variation in interpretations.").
107. See id.
108. Id. ("Practitioners frequently borrow legal forms.... Several practice books also are premised on the expectation that lawyers will borrow their forms.... Lawyers frequently pick and choose language from these formbooks and include them in their documents, without attribution to the source.").
109. See id. at 54. Customization entails using a form or previously drafted document as the starting point for a new document, tailoring it for the new client's purposes. See id. If the matters are similar, two client documents may be identical or very similar in wording when they are completed. Attorneys develop expertise in certain matters, and many are specialists. While these attorneys often charge higher rates, clients benefit because the attorney has likely seen identical or similar matters. Such an attorney already has an effective approach for handling the matters, including written materials used in earlier cases. See id. ("The client has nothing to gain from paying an attorney to start from scratch with each new document. By using these sources, attorneys can pass on the time savings to clients.").
110. See id. at 53-54.
111. Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Lane, 642 N.W.2d 296, 300, 302 (Iowa 2002).
112. In re Hinden, 654 A.2d 864, 865 (D.C. 1995) (per curiam).
113. In re Steinberg, 620 N.Y.S.2d 345, 346 (N.Y. App. Div. 1994) (per curiam).
114. See Stanley F. Birch, Jr., Copyright Protection for Attorney Work Product: Practical and Ethical Considerations, 10 J. INTELL. PROP. L. 255, 256-57 (2003) (citing MELVILLE B. NIMMER & DAVID NIMMER, 1 NIMMER ON COPYRIGHT § 2.18[E] (2002)).
115. One who refines a pre-existing document can have a copyright in the new portions of the document but not in the pre-existing material. Id. at 258 (citing 17 U.S.C. § 103(b) (2000)).
116. The work of the associate, as work-for-hire, is probably owned by the law firm. Ownership of the document written by the partner may depend on the relationship between the partner and the law firm. Id. at 259-61.
117. Janet L. Conley, Firm Claims Its Words are Stolen, NAT'L L.J., Nov. 25, 2002, at A21; see also Du Vivier, supra note 103, at 53.
118. Conley, supra note 117.
119. See, e.g., David M. Young, Can the Lawsuit Industry Copyright Its Class Action Complaints?, TOXIC CHEMICALS LITIG. REP., Nov. 13, 2003, at 11, 12-13.
120. In re K.S.L., 495 S.E.2d 276, 277-78 (Ga. 1998) (per curiam).
121. In re Widdison, 539 N.W.2d 671, 672-73 & n.2 (S.D. 1995).
122. In re Harper, 645 N.Y.S.2d 846, 847-48 (N.Y. App. Div. 1996) (per curiam).
123. See, e.g., In re Zbiegien, 433 N.W.2d 871, 877 (Minn. 1988) (per curiam) (holding that a student's one-time incidence of plagiarism should not result in a denial of bar admission); see also Richard L. Sloane, Note, Barbarian at the Gates: Revising the Case of Matthew F. Hale to Reaffirm that Character and Fitness Evaluations Appropriately Preclude Racists from the Practice of Law, 15 GEO. J. LEGAL ETHICS 397, 416 n.78 (2002) (listing plagiarism as an example of conduct that is "significant but not decisive" in determining bar admission).
124. See discussion supra Part I.
125. See discussion supra Part II.A-C.
126. Two related issues outside the scope of this article are determining what sanctions should be imposed for plagiarism and which entity should impose them. As described above, the definitions of plagiarism adopted by educational institutions, professional organizations, journals and university presses are inconsistent; therefore sanctions against professors and attorneys for committing plagiarism are similarly inconsistent. Sanctions at an educational institution can include discharge or suspension with or without salary reduction, stripping of special appointments or titles, and limiting institutional responsibilities. See David Glenn, The Price of Plagiarism, CHRON. HIGHER EDUC. (Wash., D.C.), Dec. 17, 2004, at A17. Sanctions against practicing attorneys can include license revocation or suspension, a public reprimand, and expulsion from professional organizations. See id. Sanctions imposed by an academic journal can include publishing the findings of plagiarism in the journal, eliminating the article containing the plagiarism from electronic databases, and refusing further submissions from the plagiarist. Id.; see also Glenn, supra note 68. For sanctions imposed by the ORI, see supra notes 45, 77 and accompanying text. The plagiarism standards and sanctions of educational institutions, journals, publishing companies, and professional organizations may be inconsistent or inadequate. Thus, it behooves those entities to review their standards and educate individuals within their jurisdictions on plagiarism and copyright infringement. Once plagiarism is discovered, who should discipline the plagiarist? In part, it depends on the status of the plagiarist. If the plagiarist is a professor, the academic institution may discipline the plagiarist. See Glenn, supra. If the plagiarist is a practicing attorney, the attorney may face disciplinary action by the bar association. See id. If the plagiarist is an author, the journal or publishing company may impose disciplinary sanctions. See id. In addition, the author may face adverse publicity or other professional sanctions.
127. See supra Part LA (discussing four existing definitions of plagiarism).
128. Current "gray areas" of plagiarism make it difficult to determine what should and should not be included in the definition of the term. See supra notes 31-41 and accompanying text (republishing); supra notes 42-47 and accompanying text (naming authors and contributors); supra notes 84-119 and accompanying text (teaching materials, judicial opinions, and transactional or litigation documents).
129. See supra notes 31-40 and accompanying text (discussing reuse of one's own previously published work and noting that there is little consensus regarding if or when the practice is acceptable); supra Part II.D tbl. (outlining the differences between current plagiarism practices in each attorney group).
130. One of the indicia for the quality of a particular journal is the number of times it is cited, which is easily accessed through Washington and Lee University's web-based guide to legal publications for recent years. See supra note 63.
131. See AM. ASS'N OF UNIV. PROFESSORS, Statement on Plagiarism, in POLICY DOCUMENTS & REPORTS 109, 109-10 (1995) ("[Plagiarism] is theft of a special kind, for the true author still retains the original ideas and words, yet they are diminished as that author's property and a fraud is committed upon the audience that believes those ideas and words originated with the deceiver.").
132. Perhaps law clerks would be considered "contributors" rather than authors, as is the case with scientific writing. See supra notes 45-47 and accompanying text.
133. This is consistent with general rules of attribution required by most plagiarism definitions. See supra Part I.D.
134. See discussion supra Part I.C. Additionally, the author may be infringing on a copyright. See supra Part I.E.
135. For an example of an academic institution committee investigating self-plagiarism allegations, see Scanlon, supra note 31, at 1. The author served on a committee charged with investigating self-plagiarism allegations against two co-authors of two articles. The two articles at issue were based on the results of a single survey, with each article based on a separate portion of the results. Although the data was distinct, portions of other sections of the articles - including the introduction, the literature review, the survey description, and the research methods employed - were substantially similar, if not identical. Id. Although the committee did not find misconduct, id., presumably the plagiarism allegations came to the knowledge of the academic community and clouded the coauthors' reputation. Self-plagiarism and copyright infringement can become more complicated with articles by multiple authors, especially where less than all of the authors are the same over the course of several articles. Imagine that Author A and Author B publish Article One; later, Author A borrows from Article One (without citing to Article One) when writing a manuscript published with Author C as Article Two. The publication of Article Two involves plagiarism and copyright infringement, at least with respect to Author C.
136. See discussion supra Part I.D.
137. See supra Part I.D; see also supra Part II (discussing various power relationships that can lead to plagiarism, such as professor and student, judge and attorney, judge and law clerk, and law firm partner and associate).
138. Because of the temptation for abuse by professors, perhaps the professor should bear the burden of proof in the event a student accuses the professor of plagiarizing the student's writing.
139. The authorship standard is based on the authorship standard of the ICMJE. See INT'L COMM. OF MED. JOURNAL EDITORS, supra note 46; see also supra notes 46-47 and accompanying text.
140. See supra note 3.
141. In fact, Google, a pioneer in data searching, is now scanning the collections of several major libraries to produce a digital card catalog that will provide researchers "information about the book, and in many cases, a few snippets - a few sentences showing your search term in context." Google Book Search Library Project, http://books.google. com/googleprint/library.html (last visited Mar. 21, 2008). For books where the author has granted permission, Google will make a "Limited Preview" available, and for books that are in the public domain, Google will supply a "Full View." Google Book Search, http://books.google.com/googleprint/screenshots.html (last visited Mar. 21, 2008). Easy links to online bookstores will also be available. Id. While it is unclear whether Google's enterprise will extend to journals, where most legal scholarship is published, most journals are already available online through the LexisNexis and Westlaw databases. Therefore, vast electronic databases against which an author's work can be compared already exist and are in the process of further expansion.
142. A student with a grudge might find it intriguing to humble a professor and embarrass the university and might not fear liability for defamation. RateMyProfessors.com has already proved popular with students for posting reviews of professors available for viewing by other students. See Rate My Professors, About Us, http://ratemyprofessors.com/About.jsp (last visited Mar. 21, 2008) ("RateMyProfessors. com is the Internet's largest listing of collegiate professor ratings, with more than 6.8 million student-generated ratings of over 1 million professors.").
143. Carlson, supra note 41.