Plagiarism in the Law

Plagiarism is serious academic sin. Back in the day, my junior high teachers instilled a fear of this sin, and its dire consequences, in me. Given that I had abandoned a religious worldview long ago, the Purple “P” was a much worse branding than the Scarlet “A,” for anyone who lives by the written word.

The Chronicle of Higher Education reported a story yesterday about a graduate student’s outing of a professor’s apparent plagiarism at Rutgers University (at one of its satellite campuses in Newark, New Jersey). See Bartlett, “Alan Sokal, the 1996 Hoaxer, Takes Aim at an Accused Plagiarist at Rutgers.” http://chronicle.com/article/Alan-Sokal-Takes-Aim-at-an/124969/

The protagonists in this morality play are Mr. Frank Fischer, a professor of political science at Rutgers, and Mr. Kresimir Petkovic, a graduate student in the field of political science. Petkovic submitted an article to Critical Policy Studies; the paper was critical of Fischer’s work. Fischer, an award-winning scholar, is an editor of Critical Policy Studies. As you might imagine, Mr. Petkovic’s article did not fare too well. According to Bartlett’s account, initially, the journal initially told Petkovic that the paper might be published along with a response from Fischer. Ultimately, Petkovic’s paper was rejected.

The rejection led Petkovic to investigate, perhaps peevishly, whether Fischer’s scholarly work, the subject of his critique, was original. With the advent of electronic search engines, and software for comparing documents, the process of identifying plagiarism has been simplified. Thinking that he had found “pay dirt,” Petkovic sought out help from the well-known debunker of social constructivism, Alan Sokal, who offered to help in the investigation. Fischer threatened to sue, but the Chronicle apparently took it upon itself to publish the Petkovic-Sokal report on Fischer’s work as a linked document to Bartlett’s article. http://chronicle.com/items/biz/pdf/plagiarism_fischer.pdf  Fischer defended himself against the charges of plagiarism by interposing a plea of mere sloppiness.

There are several interesting lessons from the Fischer-Petkovic affair.

First, the Fischer affair illustrates some of the failings of peer review. It is a system run by human beings, and peer review is only as strong as the integrity of not just the reviewers, but of the editors as well. Even if the peer reviewers were selected in a fair manner, they were selected by the editors of the journal conducting the review. The reviewers may well be part of the clique that is being critiqued, and even if not, they are likely reviewers because they want to keep the option of someday publishing their work in the journal in question. This does not seem like a good system to provide unbiased review, with meritorious inclusion and exclusionary decisions.

This process takes surely place in medical publishing as well, where editorial boards and their friends are often possessed by various “enthusiasm” for and against certain lines of research. There is an awful lot of “political” science in medicine, as well. For parties who litigate medico-scientific issues, this problem in peer review is often problematic.

Second, the Fischer affair illustrates the existence of a certain inbred arrogance among intellectual groups. Fischer is an award-winning scholar in his circle. Many academic intellectual circles are very “tight,” and they seem not to care about what those external to the circle think. This phenomenon was seen in the 2005 award of the Sedgwick Memorial Medal by the American Public Health Association to Barry S. Levy. The Sedgwick award is meant to recognize outstanding achievements in public health. Shortly before receiving the award, Levy was awarded other epithets from a federal district judge. In re Silica Products Liability Litigation, 398 F. Supp. 2d 563 (S.D. Texas 2005)(expressing particular disappointment with Dr. Levy, who although not the worst offender of a bad lot of physicians, betrayed his “sterling credentials” in a questionable enterprise to manufacture diagnoses of silicosis for litigation). See also Schachtman, Silica Litigation: Screening, Scheming & Suing; Washington Legal Foundation Critical Legal Issues Working Paper Series No. 135 (Dec. 2005)(exploring the ethical and legal implications of the entrepreneurial litigation in which Levy and others were so heavily involved); available at http://www.wlf.org/upload/1205WPSchachtman.pdf. The Fischer affair is a reminder that qualifications do not substitute for indicia of reliability or integrity.

Third, the Fischer matter raises the interesting question for lawyers as to what is the permissible limit of plagiarism in the law? The law is built upon slavishly following what someone else did in the same or similar situation previously. That is “precedent.” Still, we would expect judges to attribute specific language to others when they use that language verbatim. Lawyers for litigants, however, may be all-too-happy to see their language in briefs appropriated wholesale by judges in their cases.

And what constraints operate upon lawyers themselves? Can they take, without attribution, language from another brief, for use in their most current case? Recently, I had the experience of circulating a draft appellate brief to my codefendants’ counsel for their review. My hope in doing so was to avoid unnecessary conflicts in our written submissions to the appellate court. Given the press of deadlines, I did not make much of not having my codefendants’ counsel return the favor in allowing me to see her draft brief. So imagine my consternation when I saw my codefendant’s brief, which used entire pages out of my brief! There appears to be no ethical canon, principle, or rule to address this issue.  Perhaps there should be.

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