Plagiarism: Proceed with Caution

Vol. 40 No. 1

By

Mary Dunnewold is a legal writing instructor at Hamline University School of Law.

Plagiarism is in the news. Last spring, a law school graduate admitted to plagiarizing the graduation speech he delivered at his school’s graduation ceremony. He’s now waiting to see how the incident will affect his bar admission.

In 2008, the Georgia Supreme Court affirmed the denial of bar admission to an applicant who had been convicted of plagiarizing a torts paper during his second year of law school (In Re White, 656 S.E.2d 527 ( 2008)). And in 1988, the campaign of a presidential candidate was derailed because of allegations that he had plagiarized during law school and, more recently, in speeches (www.nytimes.com/1987/09/18/us/biden-admits-plagiarism-in-school-but-says-it-was-not-malevolent.html). In fact, in a study called “Combating Plagiarism,” 40 percent of college students admitted that they had plagiarized at least once during their college career.

At law schools and elsewhere, educators have become so concerned about plagiarism that the plagiarism-detection market is flourishing. Institutions and individual professors can buy software that compares student papers, checking for similarities. They can also use software that compares student-submitted papers to documents available on the Internet. Some professors have developed their own systems to check for plagiarism, using either Google searches or Westlaw and Lexis searches to root out copying.

Deliberate and inadvertent plagiarism. Some plagiarism is just what it looks like: deliberate cheating. The best advice to law students who are fully aware of the boundaries of academic dishonesty and choose to ignore them is simply, “don’t do it.” It can affect your law school standing, your chances of bar admission, and your future legal career. You’re better off with a poor grade on your transcript than with a plagiarism charge.

But inadvertent plagiarism—plagiarism resulting from failure to understand or properly apply legal citation and attribution rules—presents a different problem. In fact, in the legal world, the rules governing attribution and “borrowing” can be confusing for a number of reasons.

First, in legal practice, writers borrow from and depend on other writers all the time. Much of legal writing is collaborative. Associates write briefs that senior attorneys get credit for, judicial clerks draft opinions that judges sign their names to, and research assistants do substantial work on articles that are authored by professors. In fact, junior attorneys are expected to learn to work efficiently by using forms and recycled documents as a starting point.

Further, in our common law system, legal reasoning depends on the idea of stare decisis—each case builds on the case that came before it. So of course the new case relies on the ideas from the earlier case, which relies on cases on down the line. But we rarely cite all the cases that have influenced the current decision, leaving the impression that citing all relevant sources may not always be necessary.

Additionally, in the legal academy, different law schools may define plagiarism differently, and law schools may define it differently than undergraduate institutions or even other graduate programs at the same university. And some argue that the freely available information on the Internet, which is easy to copy and paste into other documents, gives the false impression that information doesn’t “belong” to anyone, and taking it for one’s own use is perfectly acceptable. These intertwining factors can lead law students to misunderstand what’s expected of them.

Plagiarism defined. Because of the confusion over what exactly constitutes plagiarism in the legal world, the Legal Writing Institute (LWI) has defined plagiarism for the legal academy and offers guidelines to help law students, and others, understand attribution expectations in law school. The LWI defines plagiarism as “taking the literary property of another, passing it off as one’s own without appropriate attribution, and reaping from its use any benefit from an academic institution.” Like the definition at many law schools, this definition does not include an intent element. So any failure to properly attribute that fits the definition would be plagiarism, whether or not the writer plagiarized intentionally or merely neglected to provide proper attribution by honest mistake or misunderstanding.

Some experts think the definition should be broader. Professor Deborah Gerhardt of the University of North Carolina School of Law, who speaks and writes regularly about plagiarism, favors the definition found on ’s website: “the use of any source, published or unpublished, without proper acknowledgment.” “I like ’s standard because it is concise and doesn’t leave anything out. The LWI standard is narrower than many honor codes, because it suggests it is only necessary to use an attribution if you are citing literary property. Under the standard, it is crystal clear that any outside source not created by the author must be cited, even if it is information in the public domain, data, a graph, a photograph, or anything else that does not come from the author,” she says.

Gerhardt analogizes academic legal writing to the work of a playwright. “In a good law review article, just like a play, the audience always knows who is speaking. Dropping a footnote identifies the voice of a particular point of view. In that sense, proper attribution makes what you’re saying more clear and powerful because it shows where the idea comes from. But ‘no footnote’ is also a communication. Not including a footnote is a signal to the reader that this idea comes from the author.”

Avoid inadvertent plagiarism. Law students can avoid inadvertent plagiarism by remembering a few important principles. First, pay attention to the context in which you’re writing, and know the expectations for that context. The rules are different when you are producing academic writing as opposed to writing you might do at your legal job, and it can be easy to forget to adapt when you’re switching back and forth between contexts. Although you should know if your school’s honor code includes an intent element, as a matter of basic professionalism, you should strive to avoid even unintentional plagiarism, regardless of your school’s specific code.

Second, in the academic setting, cite everything that is not your original idea. This means you should cite any time you use someone else’s words, and in this situation, be careful to quote properly as well. You may need to review your citation manual to get the technical details of quotation right. Also, cite any idea or analysis that comes from an outside source, whether or not you use the actual words of the source.

Third, take careful notes when you are researching and reading sources. Many law students who get into trouble with plagiarism allegations were simply being sloppy and inattentive when they made notes, then later lost track of where the words or ideas came from. When researching and reading, never make notes without indicating the citation and putting quotation marks around any actual text you copy. This includes copying and pasting electronically. Develop a system for yourself and stick to it.

Finally, and perhaps most importantly, be especially careful about proper attribution when paraphrasing someone else’s work. Professor Lurene Contento, a professor who speaks and teaches about plagiarism, says this is where law students are most likely to get into trouble. She emphasizes that to paraphrase properly, a writer must first understand the original material. “If you don’t understand the ideas, you can’t put them in your own words. So first, step back and think about how the passage fits into your own work.” Contento adds that “It’s not enough to change only a couple of words. You have to change the sentence structure and the focus of the passage.”

Contento advises her students to follow a couple of long-standing maxims about paraphrasing. For instance, you might put the original source away before you begin paraphrasing. That way, you can be sure the ideas come out in your own words, not the words you’re looking at. Or you can pretend you are explaining the idea to a friend, which should also help you use language that comes naturally to you, rather than language that came directly from the source.

If you need a refresher course on avoiding plagiarism before your next writing assignment, check out the LWI website. The site will give you additional guidance about plagiarism, including rules for working with authority and examples of proper paraphrasing. Also, find out if the dean’s office or legal writing department at your school have materials that discuss plagiarism and provide examples. Most will, and knowing what the rules are before you begin to write can save you a lot of trouble down the road.

 

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