Plagiarism--Posner Post

Recent �scandals� involving charges of plagiarism by professors and other writers treat plagiarism as (1) a well-defined concept that (2) is unequivocally deserving of condemnation. It is neither. Take the second point first. The idea that copying another person�s ideas or expression (the form of words in which the idea is encapsulated), without the person�s authorization and without explicit acknowledgment of the copying, is reprehensible is, in general, clearly false. Think of the remarkable series of �plagiarisms� that links Ovid�s Pyramus and Thisbe with Shakespeare�s Romeo and Juliet and Leonard Bernstein�s West Side Story. Think of James Joyce�s Ulysses and of contemporary parodies, which invariably copy extensively from the original�otherwise the reader or viewer would not recognize the parody as a parody. Most judicial opinions nowadays are written by law clerks but signed by judges, without acknowledgment of the clerks� authorship. This is a general characteristic of government documents, CEO�s speeches, and books by celebrities. When unauthorized copying is not disapproved, it isn�t called �plagiarism.� Which means that the word, rather than denoting a definite, well-recognized category of conduct, is a label attached to instances of unauthorized copying of which the society, or some influential group within it, disapproves. In general, disapproval of such copying, and therefore of �plagiarism,� is reserved for cases of fraud. The clearest example is a student�s buying an essay that he then submits for course credit. By doing this he commits a fraud that harms competing students and prospective employers. Another clear example is the professor, or other professional writer, who steals ideas or expression from another professor or writer, and by doing so obtains royalties or tenure or some other benefit that he would not have gotten were the truth known�again, a case of fraud. It is less serious than the student fraud, however, because it is more likely to be caught. A student essay is not published and so will not be widely read. A published work is quite likely to be read or brought to the attention of the author of the purloined work. The easier it is to detect a wrongful act, the lesser is the punishment required to deter (most of) it; this may be why�to the outrage of students�plagiarism by faculty tends to be punished less severely than plagiarism by students. Moreover, whereas a student plagiarism has absolutely no social value, plagiarism in a published work may have such value. If what is plagiarized is a good idea, the plagiarism creates value by disseminating it further than the original author may have done. Moreover, the plagiarist may add his own input to the plagiarized idea and as a result produce a superior work. I lumped together copying a professor�s work and copying the work of another type of professional writer, say a writer of popular history. In both cases, the copying will probably be a copyright infringement. In both cases, too, the copying will be a form of fraud. What will differ in the two cases is the injury that the fraud inflicts. In the case of the popular writer, the injury will be a loss of royalties or other fees�and will usually be negligible, unless the plagiarist is trying to produce a substitute for the work, rather than just enhancing a noncompeting work with incidental material from another book. The academic writer will usually suffer no loss of royalties even if the plagiarized work is a direct substitute, because few academic writings generate royalties (textbooks are the principal exception). But he may suffer grievously nevertheless, because recognition of original contributions is the key currency of academic reward and that recognition is blurred when someone fails to acknowledge another�s priority. The contrast in this regard with judicial opinions is very striking. Far from flaunting their originality, judges try to conceal it. They like to pretend that rather than making up new law, they are merely applying existing law made by others. So they do not complain at all if another judge or a law professor �steals� novels ideas that they have managed without acknowledgment to smuggle into some of their opinions. Perhaps the most difficult current question about plagiarism concerns the �managed book,� or more broadly the use of research assistants or other aides in the creation of a book. The term refers to a book in which the nominal author is actually an editor�an assembler and maybe a reviser�of work done by persons whom he has hired. He is much like a movie director. He presides over the composition of the work rather than being the composer. The phenomenon is not new; according to An Unfinished Life, Robert Dallek�s recent biography of John F. Kennedy (a biography highly favorable to its subject, but not uncritical), Profiles in Courage was a �managed book� (not Dallek�s term, though). Many judicial opinions are of this character. It seems likely that many multivolume treatises by (that is, nominally by) law professors are �managed books� in which most of the actual writing is done by student research assistants�though I am guessing; I have no actual evidence. Let me say, as someone who has written a number of books, that the idea of writing a �managed book� is not to my personal taste. I think that the person who writes a first draft largely controls the final product, even if it is carefully edited by the �author� of the managed book. But the issue of plagiarism has nothing to do with the taste of particular writers. It is an issue of fraud. So the question regarding the managed book is whether failure to disclose that most of the actual writing was done by persons other than the nominal author misleads readers to their detriment. That depends mainly on the conventions, and hence expectations, of a particular field. A professional historian who �authored� a managed book without disclosure of the fact would be committing a fraud because his fellow historians would think he�d 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 it�s the judge�s decision (the bottom line, the outcome), which it almost always is. In between is the legal treatise�the American legal treatise, that is; for it has long been the norm in Germany and other European countries for academic law books to be written by the assistant to the professor under whose name the book will be published. That is not the norm in the United States. I believe without knowing that the delegation of the writing of extensive portions of such works is recent, and much of the profession, including the treatise author�s colleagues, may be unaware of the trend�if there is a trend, of which I am not certain. It would be prudent, therefore, for such treatise writers to acknowledge the coauthoship or first-draft responsibility of their students, in order to avoid a charge of plagiarism.

Comments

[Cogliostro Demon]

Take six identical students. One is picked to clerk for a respected judge. That one student is now more valuable than the other five. Being selected changes him in the eyes of everyone else. He appears more valuable, and thus become more valuable, even though he is exactly the same as he was before selection.

[Anthony D'Amato]

Judge Posner and Professor Becker might consider collaborating on some of their blogs. Becker writes that counterfeiting is the reverse of plagiarism. Posner, who doesn't explicitly take up counterfeiting, writes that a "managed book" can be a fraudulent attempt by an author to pass himself off as the creator of the book.

But consider: the counterfeiter is not interested in personal publicity; indeed, the opposite is true. The counterfeiter succeeds if others accept the counterfeited work or money as genuine. Similarly, the ghostwriters who write managed books are not interested in getting personal credit; they have already been paid off by the managing author by money or course credits.

The fraud, therefore, is committed on the public. It is committed on the receiver of a counterfeit hundred dollar bill who tries to deposit it in a bank just as it is committed by the purchaser of a book who was led to believe that the author listed on the cover was the one who wrote it.

Why does Posner concentrate so exclusively on the author/plagiarist/manager? Why does Becker consider plagiarism the opposite of counterfeiting? It seems to me that both authors may be distracted by "law" as generated by lawsuits. The fraud when an author passes the work of someone else as his own is a definable defendant in a definable, if imaginary, lawsuit. But there is another kind of "fraud" that occurs in the case of counterfeited works or managed books, and that is the fraud upon the general purchasing public. This kind of fraud is, of course, diffuse, but it is no less real. When aggregated, it may even surpass the species of authorial fraud that both Posner and Becker address.

Take the example of publishing mysteries. "Margaret Truman" is listed as the sole author of many books of fictional crimes occurring in the Supreme Court or in the White House. I once wrote to her about a serious gaffe in her description of Judge William O. Douglas. There was no reply. I subsequently found out that Ms. Truman does not write her books, and maybe doesn't even read them; the use of her name was purchased by some ghostwriters. Another example concerns Ellery Queen. I knew, as one who devoured his books, that he was really two persons, Manfred Lee and Frederic Dannay. But this fact was fully disclosed. After the two gentlemen died (in 1971 and 1982), more novels appeared under the name "Ellery Queen." I thought, and I imagine thousands of readers thought, that these were posthumous publications. I read and disliked the first of these books, but thinking that the authors may have been having a bad hair day, I bought and read another one. The suspicion dawned on me that these books were not written by "Ellery Queen" and it turned out that I was right. The Lee and Dannay estates had simply licensed the name to the new ghostwriters.

I've made my feeble point, but let me generalize a bit. Plagiarism is a triangular problem, not a bilateral one. There are three parties: the original writer, the plagiarist, and the reader.
In Posner's world (and query whether in Becker's world too), the reader doesn't appear. Perhaps readers are too diffuse, and their interests too small, to worry about. The public is just a dumping ground. It is in this respect that I suggest that the Posner-Becker analysis needs considerable augmentation.

[Corey]

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

He has said essentially that on several occasions. Take a stroll over to the Yale Legal Affairs web page and read Posner's diatribe against law student edited journals for a sample.

This is why I find it so funny to watch law students fall over backwards to praise his... "able mind" even when they think he is dead wrong on something.

"He appears more valuable, and thus become more valuable, even though he is exactly the same as he was before selection."

And that student would gladly write volumes of work and ceed all credit to Posner in exchange for the street-cred of having worshiped at the classiest temple.

This is a mechanism for perpetuating status. Having achieved status and power, through fraud or merit, the haves extend to the have-nots the promise that someday they too may also get status if only they work and invent under the Master's name. "You too may become the CEO/Senior Partner/Appellate Judge if you work 90-hour weeks and filter all product through our approval"

But here is the kicker, it takes 10 or 20 or 100 people working 90-hour weeks to sustain the credibility and resource drain of one person with top status. They can't all receive the reward that was promised them!!! The only question is how many of the have-nots must be elevated and how far in order to keep the others slaving away in hope. Yay Meritocracy!

No one on this blog is ever going to BE Posner, even if there are some here with similar indicia of merit. There can be only one "most quoted" jurist at a time. It falls on all of us to take care what time and morality we are willing to sacrifice in pursuit of unrealistic goals. Or to put it another way, a little realism will go a long way towards keeping people from self-induced slavery.

[N.E.Hatfield]

Careful Corey, your ideological perspective is showing and negatively impacts your cogency and coherency.

Just a word to the wise.

[N.E.Hatfield]

Oh, BTW, since this is a discussion on plagiarism, that prior comment of mine is not mine. I heard it somewhere else some time ago. Remember, one must protect one's reputation at all costs. Even at the expense of disrupting the flow of ideas and argument. Sometimes I wonder how we advanced from living in caves. That idea is not mine either.

[Corey]

"Careful Corey, your ideological perspective is showing and negatively impacts your cogency and coherency."

Nice avoidance, what about my perspective causes you to want to resist responding to it on its own terms? There are plenty of counters, you could recite the Horatio Alger myth, or accuse me of disabling cynicism... Are you attempting to imply that you do NOT have an ideological perspective?

Or is it because we all know deep down that the chances of having our work-product appropriated as we attempt to move up the hierarchy approach 100%. Even Posner says it is both pervasive and OK. Doesn't that creep you out? Or is it just me.

Judges should not be able to cite to "the result" as a method of avoiding a searching inquiry of the credibility of the process used to create the result. Judges are not immune from democratic accountability. (Or they shouldn't be I say)

[N.E.Hatfield]

Corey, "Doesn't that creep you out"?! Isn't that a plagiarism of neologism? If it is, then it proves language use is predicated on plagiarism. Such that, language and meaning is dependant on plagiarism. Without which communication would become impossible and we would still be troglydytes mumbling and grunting at one another.

As to your query regarding your argument, the following from the HANDBOOK OF THE PSCYCHOLOGY OF ADVOCACY, should put it into perspective; "... once an ideological position is recognized or a identified by an audience, that portion of an audience which an advocate is really trying to reach or persuade turns it's mind off and rejects the advocate's appeals. Leaving the advocate simply preaching to the choir."

[hyh]

If your stated position or desired outcome is weak on merit, argue about process.

I don't think I plagiarized that, but I know it's not an orginal idea.

[Corey]

"If it is, then it proves language use is predicated on plagiarism. Such that, language and meaning is dependant on plagiarism."

I think that is an overbroad definition of plagarism, but yes, common meaning is required for communication of ideas and meanings are learned through repetition.

There is however a near infinite number of possible combinations of shared meanings/words that can be expressed. The genius is in the putting together new more profound meanings derived from as yet unseen/unexpressed patterns among commonly known sub-meanings.

The only question of "plagarism" is, in a meritocratic society that at least in theory rewards "originality" or "genius", how much reward will fall on those who present the genius of others as their own.

It should also be pointed out that obtaining credit for ideas in an academic setting is only a secondary interest or motivator to the primary purpose of advancing general human discourse. It is pathological to require a cult of personality around a particular ideology in order to maintain its vitality. In an ideal world an idea would get evaluated on its merits no matter if it came from you or me or from Tribe. Many people here get turned off and object the minute they detect Chomsky in a post of mine. I assert that their reaction is based on a pre-judgment (valid or no) about Chomsky-as-personality rather than a reasoned rejection of the particular thesis advanced.

So to some extent I agree with N.E.Hatfield, (and to some extent I would say pot calling the kettle black). However, that particular shortcut of tuning out once you identify the general ideological basis for the thesis being advanced is intellectually lazy. It is a recipe for never changing one's mind, and some people value that I suppose.

However, my horror at having violated the
HANDBOOK OF THE PSCYCHOLOGY OF ADVOCACY is not enough to modify my technique. I enjoy preaching to the choir, I hope some of them are out there.

[Palooka]

Another possible reason why plagiarism is "bad" is a point related to efficiency.

If plagiarism was accepted, I think we would see a decline in productivity and advancement in intellectual fields. If one relies on others work too much, they are doing little to advance knowledge. The stigma attached to plagiarism promotes original thought and an exploration of novel ideas, while lessening that stigma and reducing the punishments associated with plagiarism may inhibit the pursuit of originality and novelty. Why try a new approach, a new direction, or produce new research when you can rely on others previous works?

[David]

Corey - you often make very interesting points, but you are wrong to assert that Judge Posner uses law clerks or law students as "self-induced slaves" to maintain his position at the top of the pyramid. Judge Posner's success is the result of exceedingly hard work, combined with his natural ability. He also treats his staff exceptionally well. There are many lawyers at the top of the profession who use and abuse their underlings, but Judge Posner is not one of them. It is no wonder that the best and brightest law school graduates want to work for him. I may disagree with several of Judge Posner's theories, but I respect completely the way in which he has achieved success.

[Corey]

I should clarify, I did not mean to imply that Posner abuses his clerks, I have no knowledge of that but I suspect that he does not. I was simply saying that many law students would be willing to work for him even if he did do nothing but copy their work, knowing that they would eventually be able to cash in on having been in a respected presense.

[Chris Willis]

Corey:

Your reading of Judge Posner's article is highly, highly questionable.

In the article he says that law students are very adept, often by the end of the first year, at reviewing doctrinal analysis type articles, but often lack the expertise in other fields to adequately review cross-disciplinary articles. He also says that they are prone to offer more style comments than substance comments, and to over cite. The article cleary doesn't offer much support for your assertion that he has essentially said that law students are useless. Your reliance on this article really falls apart when he states that the types or articles that law student editors are most qualified to review are of the type that are particularly helpful to the profession.

Maybe we should have a blog discussion about how the "marketplace of ideas" suffers when it is constantly barraged with the counterfeit currency of off-topic posts lacking any sound factual or logical basis.

[Corey]

Oh, you want to characterize the article for us? hmm... Let's quote the text shall we:

"Their staffs are large, but the members, being students, are inexperienced both in law and in editing."

"Because the students are not trained or experienced editors, the average quality of their suggested revisions is low. Many of the revisions they suggest (or impose) exacerbate the leaden, plethoric style that comes naturally to lawyers "

"The author is also likely to suffer, because the student editors, having a great deal of time and manpower to devote to each article, often torment the author with stylistic revisions."

"Ideally, one would like to see the law schools "take back" their law reviews, assigning editorial responsibilities to members of the faculty. Students would still work and write for the reviews, but they would do so under faculty supervision. Their care in citation checking would be valued by the authors, but the tendency toward poor judgment and thoughtless impositions on authors would be held in check."

Yeah, you are right, it is highly questionable to read annoyance at useless students into those quotes.

I didn't start down this particular side-topic Chris, you did... as in: "On a side note, I greatly doubt that Judge Posner would agree that law school graduates are "useless.""

[Palooka]

None of the quotes are consistent with a belief that law school graduates are "useless."

[Chris Willis]

"when legal scholarship was primarily a professional rather than an academic product. Its primary aim was to serve judges and practicing lawyers, rather than other professors, by offering careful doctrinal analysis, noting, for example, divergent lines of authority and trying to reconcile them. Given this orientation, the reviews hewed to the conceptual framework of legal practice and adjudication, activities organized around legal doctrine to which the students had been introduced on their first day in law school and in which the best of them had become fairly expert by the end of their first year of study. They were competent editors of law professors' articles with an incentive to do a good job."

"Most articles by law professors today are still, as they were a century ago, rather narrowly, conventionally doctrinal. Typically, they criticize a key case or lines of cases as inconsistent with doctrine emerging from other cases. Good law students can evaluate and improve such articles today as always."

"Worse is the effect of these characteristics of law reviews in marginalizing the kind of legal scholarship that student editors can handle well�articles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions. Such articles are of great value to the profession, including its judicial branch, but they are becoming rare, in part because of the fascination of the legal academy with constitutional law, which in fact plays only a small role in the decisions of the lower courts."

"My only criticism of the student-written portions of the law reviews is that the students have a propensity to write about "hot" subjects, like partial-birth abortion, gay marriage, and capital punishment, to the neglect of equally important commercial subjects that cry out for informed doctrinal analysis"

Read it however you want it, or better yet, read the whole thing at
http://www.legalaffairs.org/issues/November-December-2004/review_posner_novdec04.msp

[Chris Willis]

Sorry, the URL got broken for some reason.

http://www.legalaffairs.org/issues/November-December-2004/
review_posner_novdec04.msp

[John Alcorn]

I have enjoyed the Becker-Posner blog as a lurker and would like to try and make a contribution to this week's topic (plagiarism) by identifying basic complications in the detection and punishment of plagiarism by students. My remarks draw on a stimulating article by George Akerlof and Janet Yellen, "Gangs, Law Enforcement, and Community Values". Although the article is about gangs, it makes general points about crime and punishment, supplementing Professor Becker's rational-choice theory of crime and punishment. Akerlof and Yellen develop an informal model that builds on three insights. First, they amplify Thomas C. Schelling's point, that organized crime groups (unlike individual criminals) have an interest in regulating crime in order to prevent behavior that has negative externalities for the group. Second, they note that non-criminals ("the community") are crucial for detecting, apprehending, and convicting criminals. The community (a privileged observor that can provide evidence) must choose between a coalition with law enforcement and a coalition with the gang. Third, the community is motivated partly by "norms of fair punishment". A non-criminal who observes crime (and laments crime) nonetheless might not report it if the punishment for the crime is excessive by community norms. Reliance upon deterrence (severe punishments) has the perverse effect of diminishing the probability of apprehension and conviction, because the simple "bricks and sticks" approach neglects the strategic role of the community and its standards of fair punishment. (Akerlof and Yellen apply similar considerations to police profiling of suspects in neighborhoods that have gangs.)

Professors Becker and Posner each emphasize deterrence in setting punishments for plagiarism by students. Professor Becker writes: "A well-recognized part of the theory of deterrence of illegal and other undesirable activities is that punishments should be greater when the likelihood of detection is smaller. So it follows that since these technologies have made plagiarism much easier, and its detection more difficult, punishments of plagiarists should be greater than in the past." And Professor Posner writes: "The easier it is to detect a wrongful act, the lesser is the punishment required to deter (most of) it; this may be why�to the outrage of students�plagiarism by faculty tends to be punished less severely than plagiarism by students."
If we view plagiarism by students through an Akerlof/Yellen lens, we get a different (messier) picture. Students who plagiarize typically do not constitute an organized crime group (although perhaps some fraternities do approximate this role with an archive of papers to use). Individual plagiarists may draw on several sources of material: online papers, service for hire, theft from fellow students, a fraternity archive, ambiguous sharing with fellow students, and so on. Some types of plagiarism are not observable or detectable by other students, but some types are. The deterrence approach of Professors Becker and Posner makes sense for plagiarism that is not detected by other students. However, the deterrence approach may be self-defeating in plagiarism that can be detected only (realistically) by other students who are willing to inform the authorities. I am assuming that students who do not plagiarize would come forward against plagiarists if the punishment were fair by student standards. This assumption might be wrongheaded, if there is a hard code of silence among students, period. Perhaps there is such a hard code of silence. Then again, perhaps "fair punishments" and delegation of enforcement to a student honor council would erode the code of silence. If so, then what might be fair punishment by student standards? To take a wild guess, community service (say, clean-up after student parties) rather than suspension or expulsion.
Because there are different kinds of plagiarism by students, the situation is messy. Neither "bricks and sticks" nor the Akerlof/Yellen policy -- i.e., setting punishments in light of community norms in order to build a coalition between law and community -- will be a good overall fit. However, casual observation suggests that colleges ignore community norms and ratchet up punishments for plagiarism by students, thereby inadvertantly but inexorably alienating all students (including honest students).

[L. Harriman]

Plagiarism is one of my favorite topics. I always tell my homeschooled kids that in second grade Sister Denise told us to go write a report on a State and hand it in three days later.
I went home and copied a paragraph from an encyclopedia and handed it in the next morning.
She shamed me in front of the class that I had commited plagiarism.
I learned my lesson. I rewrote it changing the sentences and words around and handed it in exactly the day she wanted it. VOILA! Not plagiarism.

My point is that no student is an expert on most of the 'reports' that they are required to write (except biographical and fictional stuff). Therefore nothing they write is not plagiarized. It is the hypocritical teachers who demand that the reports not be labelled as copying and rewording, what they actually are.
L. Harriman

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