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04/24/2005

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Judge Richard A. Posner has a fascinating post on plagiarism. See here. Among other things, he explains why plagiarism by a professor is not ...

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» propos du plagiat from Journal en ligne [phnk.com]
Depuis une semaine, les intellectuels amricains Richard Posner et Gary Becker dbattent sur leur blog du plagiat. Rcemment, le dbat ressuscite dans un scandale acadmique que ni Richard Posner ni Gary Becker ne citent explicitement : il s'agit [Read More]

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Larry

I'm surprised at your surprisingly soft attitude towards plagiarism. Is there anything worse an author can do? Perhaps making up facts, but that seems about the same level. You seem to think just the humiliation of being found out is enough to shame most serious authors from committing this literary crime.

Also, you don't differentitate between plagiarism of research, of ideas and of well-turned phrases. They're all theft from another author, but cause different sort of problems.

A tangential point--I'd like to know how you think computers have changed plagiarism, since they make it somewhat easier to commit, and much easier to catch.

White House Plumber

A previous commenter wrote:

>Is there anything worse an author can do?

Maybe multiple murder . . . ?

Gregor Samsa

This raises an interesting question. Are the Becker and Posner blogs compiled with external assistance?

Palooka

I think both Posner and Becker neglect the point that technology has made finding plagiarism easier than before as well. If a professor suspects plagiarism, they can enter a suspect phrase or sentence into a search engine and quickly come up with matches. This is much quicker and easier than checking for plagiarism before the rise of the internet. Though plagiarism has increased, so has the ability to catch the behavior. Much of the problem with internet-based plagiarism is mostly due to professsors' lethargy in utilizing technology to counteract increased plagiarism.

While it may be an axiom of deterrence theory to punish a behavior more severely if it is more difficult to detect, I think Posner (though not Becker) misses many other relevant points regarding deterrence. It is usually acknowledged that a visible and public figure makes for the perfect "example." If one's goal is only to deter, then one should seek the greatest punishment where that punishment will become known to the general public or target audience (in this case, university professors and university students). What better candidates to provide deterrence than the Harvard Plagiarists Club. Imagine the deterrence of plagiarism which could be accomplished by ceremoniously ending their careers and bankrupting them for their infractions!! If deterrence is to be the benchmark of the justice of a given punishment, then clearly famous professors--the more famous the better-- should be prime targets in this deterrence strategy. But Posner doesn't adopt this calculus. Does Posner shudder to think of the day when the guns of deterrence are turned on The Giant Hedgehog (or his friends)! Better to stick it to some unknown, lackluster, and ultimately unconsequential student! There's deterrence! There's justice!

In addition to this point, Posner seems to have no answer for Becker's suggestion that punishment be related to one's enrichment from the offense and knowledge of the wrongness of one's actions. Both of these considerations suggest higher, not lower, punishment for professors.

curious

It seems mildly inconsistent that institutions of higher learning, where ideas are purportedly expanded and new knowledge created, are so squeemish when it comes to issues of plagiarism. What happened to the idea that good ideas have no owners. Just shows that the real pursuit is not knowledge but individual status. Perhaps the worry is that if the incentives of status and recognition are not present, knowledge would not be created?

I have first hand experience with plagiarism in a prominent graduate program of a major university. It was a terminal master's, so-called professional degree program. I entered the program after working in professional management consulting, where collaboration is encouraged and business ethics are murky. Our team working on a group project were charged by the department with "inappropriate collaboration and plagiarism" for sharing our work and discussing our approaches (in a finance class, of all things) with another group. The plagiarism charge was probably deserved because we did not properly attribute to the other group statements that appeared in our final report. But the inappropriate collaboration charge seemed a bit absurd. Still, we eventually went along with the university and the harshest penalty resulted in one member of our team being suspended for a semester. Perhaps a just punishment for a future academic, but it didn't make any sense for a professional degree program, but there you have it.

I share this anecdote simply to note that human beings have always collaborated, stolen, shared, misrepresented and otherwise butchered each other's work and ideas. In some contexts one is rewarded. In others, one is punished. With that, I certainly agree that the particular ethics defining plagiarism necessarily vary with institutional context.

Corey

The interesting thing about managed books is that the primary market value derives from the name on the cover rather than the content of the book. Profiles in Courage exists now merely as a fuzzy evocation of an ideal related to a TV image of JFK and some fantasy about the past. Very few people alive today have read the book, many who bought it then never opened it. The same is true of Clinton's thousand page doorstop.

Once marketability surpasses quality as a value, then plagarism loses its utility. I can gain more recognition from posting my ideas on the blog of a famous Jurist than I could from copying Posner's blog entries into my 2L law journal note. At this point, the work of a law clerk or a recent college grad CAN stand in for the reasoned thought of a judge or politician with a lifetime of experience. As Posner says, the focus is on the result, and I say the credibility of the result depends more on the prestige of the record "Author" than on the quality of the insight.

It is a norm of the business world that ideas occur near the bottom of the hierarchy and move up for approval. At each stage, the middle manager presents the work of underlings as his/her own. Doing so is a precondition for advancement. The end result is that most people who achieve the name recognition necessary to make ideas marketable get there by plagarism. The entire system is shot through with it. It can be very discouraging for people who are both inventive and unwilling to abuse others to get ahead.

None of this should suprise anyone, it is a natural result of fetishizing commodities that market value would replace quality as the key indicia of worth. People who plagarise have got it backwards, they should be citing to as many familiar and famous sources as then can in order to make people feel comfortable with buying their ideas.

There is another way to achieve name brand status without plagarising, simply by being so scandalous that the evening news picks you up.
If Ann Coulter can do it, so can you! For example, now I'd like to give a shout-out to all the Little Eichmans at U Chicago...

Corey

"Imagine the deterrence of plagiarism which could be accomplished by ceremoniously ending their careers and bankrupting them for their infractions!!"

Imagine my horror at the thought of so serious a sanction as ruining someone's livelihood and impoverishing their children over something as trivial as who originated some unfinished thought about some obscure point of law or science.

You are talking about a punishment that is worse than the most serious possible harm that could ever come from plagarising in an academic setting. Don't mask zeal for retribution behind talk of deterrance, we can still see it.

Anthony Lepere

Ponser argues: 'A professional historian who authored a managed book without disclosure of the fact would be committing a fraud because his fellow historians would think hed written it himself. At the opposite extreme, few lawyers care whether a judicial opinion is written by a law clerk or by the judge, provided they think its the judges decision (the bottom line, the outcome), which it almost always is.'

I disagree that the expectations of historians and lawyers are as different as Posner asserts. (I am considering here the prospect of a supervising historian appropriating work by a subordinate that s/he has commissioned, much as a judge might adopt an answer to a research question asked of a clerk. I am not considering the circumstance where one historian, without permission, reproduces the work of an unsuspecting colleague.)

History has been described by the Dutch historian Pieter Geyl as 'an argument without end' (a definition, I note, adopted and appropriately referenced in Dallek's Unfinished Life of Kennedy at p.703). In this connection, historians seek the crux of arguments, much as lawyers seek the ratio decidendi of judgments. Further, when historians prepare replies, they name the (perhaps nominal) author of the historical research with which they are concerned, as lawyers cite the name of the relevant judge.

A case in point: Harvard University historian Niall Ferguson and Justice Scalia of the United States Supreme Court have both been criticized for their 'conservative' views. However, neither Ferguson (who may be aided in drafting by his graduate students), nor Scalia (who may receive assistance from law clerks) has been meaningfully criticized for being a plagiarist.

The point is that in both fields, there is a need for a responsible author to whom replies can be addressed.

Palooka

"You are talking about a punishment that is worse than the most serious possible harm that could ever come from plagarising in an academic setting. Don't mask zeal for retribution behind talk of deterrance, we can still see it."

I think many of those caught plagiarizing should be fired, but that's where I think it should end. My point is that an obsession with "deterrence" can lead us down some strange paths, and if we're seriously committed to the idea, then the rational policy formulated from an outcome of deterrence isn't what Posner would have us believe (students should be punished more serverely).

Tom H

Judge Posner: I've read that you personally author your own judicial opinions (which separates you from most of your peers). As a law student who has read many of your opinions, I get the impression that judge-written opinions tend to be easier to read and understand than those written by clerks.But I've always been curious as to what work you delegate to your clerks, since they don't have the responsibility of drafting opinions for you. Bench memos? General legal research to aid you in writing opinions?Do Posner clerks have an easier job than typical circuit court clerks?

David

Very interesting post. I have two comments:

First, it is not plagiarism to hire a paid "ghost writer" or research assistant, even if their role is unattributed. That is simply a bargained-for arrangement. I did two clerkships, which included my share of "ghost writing," and I never found anything improper about the arrangement. Judges have limited time to do research and writing, so they hire young lawyers to assist them. The young lawyers learn from the experience and further their careers, and the judges receive needed help in drafting opinions. The opinions are still a reflection of the judge's sentiment and style, regardless of the extent of the law clerk's role. Though some judges certainly give law clerks more leeway than others. And some law clerks are edited more heavily than others.

The same dynamic occurs in legal practice: senior lawyers often spend much of their time editing the work of junior lawyers. There is nothing wrong with that. The theory is that junior lawyers know enough to do the initial drafting and research but are not savvy or experienced enough to craft the final product. This is simply good time management and efficient allocation of resources.

The problems with "plagiarism" arise when a person is evaluated based on written work, and the written work is not really his. This applies equally to a student who plagiarizes when writing a paper and to a professor who plagiarizes when writing an article. If a student's grades, or a professor's tenure, depend on the quality of their written work, the academy has an obligation to ensure that the work is original and that "copied" ideas are attributed by proper citation. The problem is not just the economic harm (loss of royalties, etc.) suffered by the author who is plagiarized, but also the improper benefit (good grades, promotions), received by the person who plagiarizes. The integrity of the system depends on fair dealing, whether in commercial transactions or in ideas.

Some "plagiarism," however, is not so problematic. Suppose, for instance, that a political candidate uses a professor's ideas in a stump speech without attributing the ideas to the professor. No harm is done, really -- the candidate is not depriving the professor of royalties, promotions, etc. In fact, by using the ideas, the candidate might give them currency and increase their value -- prompting more sales of the professor's books or increasing his influence in the academy. This is not really plagiarism; it is part of the free trade in ideas. In fact, I would think that the candidate's speech is protected by the First Amendment.

In sum, the definition of "plagiarism" should be limited to instances where one person uses the words or ideas of another, without proper attribution, to gain some sort of economic benefit from the use of those words or ideas (better grades, tenure, selling books, etc.). Such instances are akin to fraud. Other uses of another's words or ideas are not really plagiarism. They are part of the free discussion of ideas that takes place every day.

p.s. Feel free to repeat this post to your friends; just don't quote it in your next book, or maybe I'll sue! :-)

N.E.Hatfield

As has been said, or at least I think its been said, "There is nothing new in the world. It's all been done and said before." Least ways, now that I've put in quotes and given credit and attributed it to someone, somewhere, sometime; I stand free of the charge of plagiarism. But what happens if I forgot that I'd read it, or heard it before? Do I still stand condemned? As in Law there is the issue of intent or the guilty mind.

I think the dictionary classifies plagiarism as a literary offense which is the copying of someones work verbatim without credit or attribution as plagiarism. Hence the grammatical importance of such things as quotation marks, footnotes, endnotes and bibliograpy. It is when the idea or literary work begins to take on an economice value that the Law steps in and takes control and as legal history has has shown, a whole body of Intellectual Property Law is developed. Better known as Patent, Trademark, and Copyright. Funny how money complicates the issue.

Returning to my first thought on the subject, there's nothing new in the world, when we think or write on a subject or idea, we're actually standing on the shoulders of someone who came before. That ain't my idea either, it came fromm somewhere else, but I don't remember where. Plagiarism? it's really all a matter of breeding, manners and taste to give credit when credits due. If you can remember.

v.DANGER

Hely,

I called but was unable to reach you. I ended up watching Easy Rider instead. Perhaps late tonight?

v.DANGER

Anon

Richard Posner wrote:

Think of the remarkable series of plagiarisms that links Ovids Pyramus and Thisbe with Shakespeares Romeo and Juliet and Leonard Bernsteins West Side Story. Think of James Joyces Ulysses and of contemporary parodies, which invariably copy extensively from the originalotherwise the reader or viewer would not recognize the parody as a parody.

As T.S. Eliot is reputed to have quipped, "Minor poets imitate. Major poets steal."

logicnazi

At the begining of your post you correctly point out that plagiarism is socially disapproved copying. I think this intuition is fundamentally correct and it reveals that far from merely describing a physical action or state of affairs plagiarism fundamentally means immoral copying without attribution.

In other words plagiarism is a word like theft. Theft is only used to describe morally reprehensible seizures of goods. When we think the seizure is warranted we call it taxes, or fines or some other word. Similarly by definition copying which is not morally reprehensible is not plagiarism.

Thus while I agree with most of your points, that plagiarism is not sharply deliniated from acceptable copying and that standards differ in various fields depending on what best serves that area I have to quibble on a minor point of terminology. By definition it can never be the case that plagiarism is not wrong or bad.

Palooka

"It is less serious than the student fraud, however, because it is more likely to be caught."

Tribe's undeniable plagiarism didn't come to light until a good two decades after the fact. If this case is representative, then how many obscure academics (Ward Churchill anybody?) can plagiarize and get away with it?

Redmund Sum

Here I find myself flummoxed by one of my most cherished heroes. Judge Posner's fabled economic analysis let him to the conclusion that a professor's plagiarism is less serious than that of students (should be punished less) and, among other things, that plagiarism helps propagate (good) ideas and hence is a social good.

With all due respect to the great judge, plagiarism - the act of taking pre-existing work and representing it as original - is morally offensive, regardless of its economic effect. In my humble opinion, the moral dimension must be clearly laid out, first and foremost.

David

I'm not sure that a student's plagiarism is so hard to detect these days. All one has to do is type the words into Google. Also, a professor will be motivated to investigate if he sees a paper that looks too good to be true.

In contrast, there is a lesser interest among faculty in detecting the plagiarism of their peers. They are not "grading" their peers, and besides, they have their own work to do: they are not likely going to spend hours checking for plagiarized lines in journal articles. And, as one commentator pointed out, the more "obscure" articles might be barely read. So Judge Posner might be wrong that faculty plagiarism is easier to detect. I think the academy punishes faculty plagiarism less severely than student plagiarism because the professors and deans are protecting their own. Professors suffer no guilt about failing a student, but revoking someone's tenure is, to them, a more serious matter. I say this not to bash academia -- I respect the academy greatly. It's just human nature to protect one's own turf.

The internet, and search engines like Google, have made plagiarism both easier to accomplish and easier to detect. I wonder whether that has increased or decreased the amount of plagiarism that occurs.

Chris Willis

Judge Posner writes that [m]ost judicial opinions nowadays are written by law clerks but signed by judges, without acknowledgment of the clerks authorship but that few lawyers care whether a judicial opinion is written by a law clerk or by the judge, provided they think its the judges decision (the bottom line, the outcome), which it almost always is. I wonder if that is really true in all circumstances, most notably Judge Posners.

Judge Posner is famous (in some circles infamous) for his writing, both in his judicial opinions and in his books. As to his opinions, he is cited in more law school casebooks than any other judge, by far. See Giants in a World of Pygmies? Testing the Superstar Hypothesis with Judicial Opinions in Casebooks, 87 Iowa L. Rev. 1141 (2002). As to his books, his Economic Analysis of the Law is widely influential, both in judicial opinions and law review articles, but also within academia more generally, meaning it has great influence on how todays law students (read tomorrows lawyers and jurists) think about the law.

While he obviously receives no remuneration from the inclusion of his judicial opinions in casebooks, it does benefit him indirectly. The more widely known his judicial writing becomes, it stands to reason that more people will become interested in his academic writings, and more will be led to purchase his books, more will be drawn to his classes, and his overall stature as a professor and a jurist (and his income derived from that stature) will continue to rise.

I doubt this would be the case if it was widely believed that the opinions were written by clerks, and then signed off on by Judge Posner as being sufficiently in step with his belief of the appropriate analysis and outcome to warrant his signature, but not actually the literal product of his mind. An opinion drafted by (to plagiarize the gist of the above quoted law review article) pygmies but signed by a giant would certainly not be given the same attention as one drafted entirely by the admittedly able and agile mind of Judge Posner.

So, then, Judge Posner is in the position that it is important, both for his stature as a jurist and legal theorist and his own personal income, that he be perceived as either being the author of his own opinions, either through actually penning them himself (the widely held belief), or through the plagiarism of clerks who must be consistently not credited for their writing (lest such revelation in one opinion cast doubt upon the authorship of other opinions).

Turning to Posners own clerks, the opposite of this dynamic would appear to be present. While I doubt that anyone would honestly argue that it would be less than one of the most prestigious possible positions for a recent law-school graduate to clerk for Judge Posner, the possibility of plagiarism would still have an effect on the prestige of this job. Judicial clerks are highly coveted lawyers after their employ by judges, at least in part, because of their experience not just studying under the tutelage of jurists, but in writing opinions the very essence of what is to become the law. If Judge Posner is widely believed to pen his own opinions, that means the clerks are not writing them, thus leading to the question of a previous poster: what, exactly, do Judge Posners clerks do? Such doubt would, inevitably, detract from the prestige of a clerkship under Judge Posner, either justly or unjustly.

It would be just if they, in fact, did not draft the opinions (assuming that drafting opinions is of the essence of what makes a clerkship prestigious). It would be a great injustice if, in fact, they were drafting the opinions (remembering that theses will be the most widely disseminated, quoted and examined opinions not of the US Supreme Court) and not getting due recognition. In this latter instance, Judge Posner would be steal[ing] ideas or expression from another professor or writer, and by doing so obtain[ing] royalties or tenure or some other benefit that he would not have gotten were the truth knownagain, a case of fraud as recognition of original contributions is the key currency of academic reward, and they would not be receiving such reward.

The crux of this is the conclusion, in my opinion inevitable, that among the author and anyone who may contribute to the authorship but is not credit as author or co-author, there is a fixed amount of benefit (economic/prestige/other), and what we really mean when we deem something plagiaristic is not that it falls within the meaning of a vague term (as used by Judge Posner) such as fraud, but that the benefit to be derived from the work has been distributed inequitably. This would explain the various cases posited where seemingly similar plagiaristic acts are viewed with disparate levels of societal disdain: there is a variance of the perceived benefit to be derived from the work, and hence a variance in the amount of injustice that would result from an inequitable distribution of that benefit.

I do not mean, by anything written or implied here, that I believe that Judge Posner has earned his reputation through fraud. I just thought it an interesting dynamic posed by the authors comments as applied to the authors own situation, and my thinking on it resulted in this formulation of defining a composite of a threshold test (the benefit to be derived from the work is important enough to care about) and balancing test (the benefit, in weighing the contribution, has been or may be distributed inequitably) that I think more adequately explains plagiarism in a moral sense than simply that which is fraud.

alex

Judge Posner,
If plagarism a wrong in itself? Your post suggests, much like an efficient breach of contract, that in some cases plagarism is justified as a social good because it increases the awareness of some idea. But your calculus cannot be right. It does not consider the social harm of plagarism itself. If plagarism is not in itself a social harm, then there is not really a compelling argument that students ought to be punished more for committing the same wrong as a professor. In both cases a social good -- in your estimation -- has resulted; the promotion of knowledge. I am not sure where you would stand on all this. Your post is wrapped in the notion of moral culpability -- did the author intend to take the information and pass it off as their own. Why should intent matter? Are you suggesting that this is a situation akin to the "mistake as to a justification" in criminal law. I take an umbrellla from a diner that I thought was mine. I cannot be guilty of theft because I didn't think I was taking another's property. Likewise, your post (by implication), suggests that if the author did not intend to perpetuate a fraud, voila no plagarism. That outcome is only possible if, as I mentioned above, you believe that plagarism is not a harm in itself.

Next, I think your analogy to judicial opinions is wrong. There is no unauthorized copying occurring when a judge uses a clerk's work. It is explicitly a work-for-hire situation. The work is the product of the judicial chambers, i.e. the judge. Nothing unauthorized is occurring. Only if you contend that plagarism is broadly defined as passing of another ideas as your own. Here I think you are careless and confound outright copying and with "the passing off of ideas." Judicial clerks work for the judge and write a draft opinion for the judge based on his/her views. This occurs in numerous workplaces. A definition of plagarism that captures every "unattributed to use of an idea" swallows the definition -- either every act or no act of writing is plagarism. That, of course, cannot be true. So, fundamentally a problem with your post if you have no good definition of plagarism. Or you choose a defintiion that would suit your argument. Being a judge you know that is the better route to go.

One last thought - I am surprised you didn't lump in speechwriting to support your argument, i.e. the speaker "claims" the speech to be his own despite the well-recognized use of speechwriters. Again a situation of "copying" that is not thought of as plagarism.

Tom H.

There are plenty of other tasks that judicial clerks can perform, aside from drafting judicial opinions.For example, before a case goes up for oral argument in a Circuit Court, each judge will usually have one of his or her clerk prepare a bench memo - basically, a summary of the facts of the case, the major issues up for appeal, and the arguments that each party makes. This helps the judge prepare for oral argument.In my earlier comment, I was simply curious as to whether a Posner clerk has a marginally easier job than the typical appellate level clerk, or if Posner manages to keep the clerk equally busy.Incidentally, I've also read that Posner, as a clerk for Justice Brennan, may have influenced the Court with an opinion he drafted. According to the Posner write-up in the Dec 10, 2001 issue of the New Yorker:"Once, misunderstanding his [Brennan's] instructions, he [Posner] wrote up an opinion arguing the reverse of Brennan's decision; it was so compelling that Brennan and the Court changed their minds and adopted it."I'm quite curious as to the identity of this Supreme Court opinion. Is this secret information?

N.E.Hatfield

Alex, Being a "rhetor" for hire is as old as humanity. In the early days in the courts located up on the Aeropagus in Athens, there were no advocates. You had to plead your own case and if you lost, many times your fortune and life was forfeit. Hence the rise of a cottage industry of the professional rhetor, or the sophists as Plato called them.

Maybe we could learn something from those people. It would surely reduce ones legal costs.

Cogliostro Demon

Chris Willis,

Levi Straus says that there are patterns in human behavior which repeat themselves over and over. One pattern is hazing.


Law school is no more about learning to practice law than Seal Team Hell Week is learning to fight a war. It is hazing.


Before the rise of law schools, lawyers clerked. They learned to practice law guided and taught by lawyers. Because law school graduates are so useless, the profession has had to continue to teach the graduates the law through the time-tested process of clerking.


Head to your county courthouse and drop in on the low-level trial court. See the young PD and the younger prosecutors fighting over a drunk-driving charge? Clerks. Drop in at Holland & Knight, see the apple-cheeked youngster with the armfull of red-lined memos. A Clerk.


Posners own clerks are students. They are learning, he is teaching. I doubt if he suffers fools gladly and, can pick the best of the graduates, so their market value increases because he picks them. Additionally, they get to learn how the profession is actually practiced. They see what makes a good brief and if oral argument makes a difference. By watching a judge and being let into the inner chamber, they learn what works. So, not only is their market value increased by selection, but, learning from a good teacher helps as well.


(Hey! How do I get carrage returns between my paragraphs?)

David

It is no secret that politicians hire speechwriters and that judges hire law clerks. No one finds it scandalous that the President reads someone else's words; why should it be scandalous that judges hire bright, young laywers to help them draft opinions? The important point is that the judge ultimately agrees with the final product, just as the important point in politics is that the President agrees with the content of his speeches.

Judge Posner has argued vigorously that judges should write more of their own opinions. However, I think his argument is that the decisionmaking process of courts would improve if this were so; I do not think he finds it fraudulent that law clerks write the initial drafts of many judges' opinions.

Personally, I think this is a matter of style for each individual judge. As someone who likes to write, I think it would be fun to write my own opinions, if I were fortunate enough to trade places with a judge. However, other judges might enjoy the decisionmaking process but might not enjoy the writing so much. I see no problem in their delegating that duty, as long as they remain intimately involved in the drafting process.

Chris Willis

Cogliostro Demon:

I'm well aware of the development of legal education in this country, and it's present state. Keep in mind, the topic here is plagiarism and the attribution of creti for writing. Your post does not address the topic in any way whatsoever.

Further, your argument is circular.

Of course Judge Posner can pick the "best" law school graduates as clerks, but his selection of them doesn't enhance their ability unless they are learning from their clerkship. It only refers back to why he chose them.

If he is writing the opinions and not them, their experience is not as extensive as those who are writing the opinions for their judges, and thus their abilities will not be enhanced as mush as others.

On a side note, I greatly doubt that Judge Posner would agree that law school graduates are "useless."

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