In response to the story about pervasive plagiarism in the New York Times, Stanley Fish writes at the Times Opinionator that plagiarism isn’t malum in se, but malum prohibitum.
Whenever it comes up plagiarism is a hot button topic and essays about it tend to be philosophically and morally inflated. But there are really only two points to make. (1) Plagiarism is a learned sin. (2) Plagiarism is not a philosophical issue.
According to Fish, there’s nothing intrinsically wrong with copping the language of another and making it your own, except that we’ve got rules against it.
To prove his point, Fish distinguishes stealing from plagiarizing, and then devolves into sport:
The rule that you not use words that were first uttered or written by another without due attribution is less like the rule against stealing, which is at least culturally universal, than it is like the rules of golf. I choose golf because its rules are so much more severe and therefore so much odder than the rules of other sports. In baseball you can (and should) steal bases and hide the ball. In football you can (and should) fake a pass or throw your opponent to the ground. In basketball you will be praised for obstructing an opposing player’s view of the court by waving your hands in front of his face. In hockey … well let’s not go there. But in golf, if you so much as move the ball accidentally while breathing on it far away from anyone who might have seen what you did, you must immediately report yourself and incur the penalty.
This might be an appropriate time to distinguish between linguistic choices (“stealing” second base) and conceptual problems like stealing someone’s wallet, but for the fact that few readers will need any explanation. Nor is the analogy to sports, golf inclusive, compelling. These are sports, and they require adherence to rules for the sports to work. You could play golf without adhering to rules, but then everybody would end the day under par, which wouldn’t prove to make the round nearly as worthwhile.
Fish eventually comes to lawyers.
And if there should emerge a powerful philosophical argument saying there’s no such thing as originality, its emergence needn’t alter or even bother for a second a practice that can only get started if originality is assumed as a baseline. It may be (to offer another example), as I have argued elsewhere, that there’s no such thing as free speech, but if you want to have a free speech regime because you believe that it is essential to the maintenance of democracy, just forget what Stanley Fish said — after all it’s just a theoretical argument — and get down to it as lawyers and judges in fact do all the time without the benefit or hindrance of any metaphysical rap. Everyday disciplinary practices do not rest on a foundation of philosophy or theory; they rest on a foundation of themselves; no theory or philosophy can either prop them up or topple them. As long as the practice is ongoing and flourishing its conventions will command respect and allegiance and flouting them will have negative consequences.
Right in the middle there, he said it. Lawyers and judges “in fact do [it] all the time without the benefit of hindrance of any metaphysical rap.” No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel.
Initially, the law, as a discipline, includes a substantial component of precedent, where past decisions are applied to current circumstances. It’s intended that way, and when decisions are written, there stands a pretty good chance that someone somewhere will use the language again.
But we do not lift language without attribution. Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about. It’s the lawyers’ way of attributing, Stanley. It’s called a citation, and it’s our regime. What you do not see at the end of a court decision is the copyright and command that it not be used without permission. Use of court decisions is not merely anticipated, but required in most circumstances. That’s the peculiar way law works.
Rather than lend support to Stanley’s dichotomy, it appears that the examples and implicit accusations fall along the line of stealing the tangible versus the intangible. It would be inherently wrong to take someone else’s wallet, but it’s not wrong to take someone else’s words. That leaves the question open as to whether theft is theft, or whether the nature of what’s taken spells the difference between right and wrong.
Where Stanley goes wrong is that the nature of the thing stolen is relevant to the degree of wrong, that stealing ten dollars isn’t as bad as stealing ten thousand dollars, but both are still stealing. The same can be said for stealing words and appropriating them to oneself. It’s not the most grievous harm ever committed, and doesn’t deserve a life sentence, but it’s still stealing.
The wrong is in the act and its accompanying mental state. To intentionally plagiarize is to intentionally steal. It is indeed a moral wrong, just as much as stealing another person’s wallet. The difference is in the punishment, and as with all wrongs, the punishment should fit the crime. Proportionality dictates that the plagiarist be held to intellectual ridicule for the intellectual crime, perhaps a failing grade or even being tossed from a program that demands intellectual rigor. So what if it falls below the level of harm that compels criminal sanction? It’s still stealing and it’s still very wrong.
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Stanley Fish is no stranger to legal ignorance; see the post linked via my name. The man writes because he likes to hear his own voice, not because he has anything to say.
I, for one, love it when judges plagiarize my brief without attribution! But for the rest, attribution is key.
You’re absolutely right, and we can’t do much better than provide the judge with the words to use in his decision.
Sorry, Scott, I gotta disagree with you on this one. Would you cut and paste someone else’s brief if it were great and would do your client good? And you’d never cite that. I knew I wrote a great motion brief when the judge’s order cut and pasted from my brief. Did I feel I’d been plagiarized? No. I felt I’d done the best job possible. Lawyers do it all the time, and they should — why reinvent the wheel? The bottom line in advocacy is whether the words do the job. Originality and authorship are irrelevant. In fact, I’ve got an article that will be published in the Mercer Law Review on the topic. You can read a draft here:
[Ed. Note: Link deleted. Sorry Peter, but no links in comments.]
Don’t reinvent the wheel!
You’re talking about two separate things. Would I steal the content from another lawyer’s brief? No. I would learn from it, improve on it, but not steal it. Would I take from my own work? Sure, but then it’s my work. As for judges taking language out of my brief, that’s not plagiarizing, but the purpose of a legal brief, to provide the court with the language to use in his decision. That’s exactly what I’ve written it for, as my “gift” to the judge to use in deciding the case. Again, entirely different from plagiarizing.
I’m not talking about different things. Why “improve” it if it doesn’t need to be improved? Would you not use it, or worsen it, even if it were perfect for your client. When you start with contract forms, do you cite the forms as your source.
My point is that originality is irrelevant in the practice of law. All that matters is effectiveness. If originality doesn’t matter, the whole point of plagiarism fades away. And we don’t cite out of an ethical obligation to attribute responsibility — we cite in order to confer authority on what we are citing. That’s an entirely different matter than citation to avoid plagiarism.
My reference to different things was stealing from someone else brief and the judge using the language of a brief in a decision. Those are very different things. You’ve now introduced a third thing, form contracts, which have different attributes of consistency in language for a completely different purpose.
We all agree that effectiveness is what matters. As for your “why improve” question, it’s something of a strawman. There is never an instance where the product is so generic that it doesn’t require adaptation to the particulars of a case. client or situation. It can often be “improved”, but invariably needs to be adapted. It’s never perfect to a good lawyer. But back to the bottom line, no, good lawyers don’t steal other lawyer’s content. Lousy lawyers may do it, and they are wrong to do so, but good lawyers do not.
Scott — my point at bottom is that the concerns that fuel plagiarism “prosecutions” in the academic context (or scandals in the literary one) are not concerns that exist in the legal context. We don’t care who the “author” is, so partners sign briefs written by lowly associates, judges cut and paste briefs, colleagues cut and paste colleagues’ briefs — and it all happens without attribution. We cite not for the sake of ethical concerns regarding attribution. We cite for the authoritative weight the citation adds to our words. So, for example, if we pick up a terrific argument from a court with some persuasive weight, we’ll cite to it. But if that same argument comes from a student note or from the opinion of a dissenting judge in an appellate district in a state far, far away, we’ll take the argument but we won’t cite it. (And plagiarism in the academic context includes lifting ideas without attribution.)
And if those words come packaged in a particularly wonderful sentence that we can’t improve upon, we’d be doing our client a disservice if we didn’t simply lift the sentence whole. We’d also be doing our client a disservice if we cited to an “authority” the court we were writing to considered beneath its notice.
So I think you’re doing Fish an injustice. A court doesn’t care who the author of a brief or a contract is. All that matters is the words on the page. But when I’m grading a student on his work, it matters a lot whether it’s HIS words because I’m grading him, not deciding what to do about his client.
These aren’t strawmen. They’re the result of some close thinking about what plagiarism is and what we do when we write as lawyers and as judges.
We got that from your first post. That may be what academics think happens, but it’s not what happens amongst the practicing lawyers I know. But continuing to post comments repeating yourself doesn’t make you more persuasive. I got it. I disagree. Hope we’ve cleared this up.
I see you don’t know when to stop. Saying the same thing over and over doesn’t make you more persuasive. It just makes you an asshole. You really need to learn when to stop.
I do distinguish the act of stealing a wallet from stealing an idea or words. In the latter, the rightful possessor is not deprived of possession by the taking. It’s why “intellectual property” is such a cluster and valid arguments can be made that more or less protection of IP is beneficial to society.
Copyrights don’t last forever. Is it no longer theft when the copyright expires? Why, because we said so? I think its 100 years right? Patents on medicine are even shorter.
Unlike a wallet where the reasons we want to protect someone’s possessory interest are obvious, the rationale for protecting IP is different, we want to make sure there is value and reward in creating something intangible. However, there are costs to creating that ownership right, so the optimal solution would be to give _just_ enough protection so that nobody decides its not worth it to create something.
I think I’m off on a tangent here, but I don’t agree stealing words is the exact same as stealing a wallet the effect on/harm to the “victim” is different.