The Great Change: Turning Cathy into a Lawyer

The National Jurist is a free magazine given away at law schools. Its latest (January 2005) issue contains an article on plagiarism, accompanied by three hypothetical situations for readers to use to test their judgment on whether they constituted plagiarism or not. The second hypothetical seems clearly to have been an example of plagiarism (using a roommate's assignment from a previous year as the substantive basis for his), the third not (it was a collaborated work-product). But this was the first:

A first-year student reads a law review article and has an opinion on the topic discussed. He does more research and produces a well-written, fully cited article of his own which he submits to the school newspaper. However, nowhere does he refer to or cite the original article that gave him the idea for his opinion piece.

According to The National Jurist, this was plagiarism. ("This was an actual incident at Thomas M. Cooley Law School in Lansing, Mich. The student was required to write a public apology to the author of the original journal article and the incident was recorded in the offending student's record.") Now, perhaps the original case contained more facts than were included here, but based on those presented in the hypothetical, if such behavior constitutes plagiarism, nearly everyone, no matter how well-meaning or ethical, is going to be guilty of it at some point.

The general requirement to cite seems based on two purposes: to permit readers to retrace the steps of the analysis in order to test the conclusions, and to give credit where credit is due. Given that in this hypothetical the article was otherwise "well-written [and] fully cited," the first purpose seems completely satisfied. The remedy of having to send an apology seems to suggest the school thought the student had some moral duty to reference the author of the law journal article, but to infer such a duty is extremely problematic and far beyond any of the general premises behind the citing rule. A mandate that any inspiration needs to be referenced and cited intrudes impermissibly and chillingly on an author's own intellectual and expressive processes, and, as a practical matter, is impossible to fulfill. Inspiration often follows no clear path. It could be based on something encountered 5 minutes ago, or a spark of an idea that has been smoldering for years, with the original incendiary concept long since forgotten. It could also be a product of subconscious analysis compiling ideas from several sources. For such reasons as these, accurate citing will often be impossible.

Forcing an author to credit someone else, whose work has only the most tenuous connection to the subsequent author, strips the author of the credit he earned with his initiative to synthesize ideas and create a new work and redistributes it to a party who played no role in its creation, except to have been in the panoply of sources of ideas the subsequent author has at one point encountered. Such redistribution fails to support any moral goals that such a policy is purported to promote. If the student had directly built his analysis on the tenets proposed by the journal article, then citing would have been warranted, and justified as being in pursuance of either of the rule's purposes. But since the scenario says that the article was "well-written [and] fully cited," the fact pattern suggests that the analysis was in no way dependent anything put forth by the journal article. Its independence should have dispelled any further citation requirements.

To require referencing the journal because it kicked off the intellectual journey for the student would be the equivalent of requiring me to have referenced The National Jurist in writing this post. I chose to anyway, because I chose to base my analysis on specific material mentioned in the article. But if I had simply read it a few days ago (as I had), contemplated the issue of plagiarism in general, and then wrote to reflect some of my thoughts on the subject, I cannot see how I would have had any requirement to in any way reference or credit The National Jurist, just as I had no duty to reference or credit the NBC Evening News, the New York Times, Salon Magazine, Slashdot, the local news, my classmates, my mother, or any other source of mental inspiration I may have recently encountered in drafting this post.

What mostly concerns me is the enormous threat of sanction that plagiarism carries with it. My academic and legal careers could be seriously jeopardized if I were ever convicted of it. In terms of any reasonable definition of plagiarism, I have no doubt that I will never commit it: I am not interested in co-opting any one else's work or credit - I accept the wrongness of it, and my own system of ethics would not permit me to be tempted to try to justify it by my own self-interest. I am also meticulous and pedantic enough in my nature to really want to leave the necessary breadcrumbs behind my own analyses so that they could be retraced.

But these expansive definitions of plagiarism leave me scared and vulnerable. I think they identify harm where there is none, and target behavior I think is otherwise reasonable. Behavior that I may very likely be inclined to pursue. Behavior where the only moral violation would be its prohibition.