More on Plagiarism in Legal Academia

For those who care neither about plagiarism nor legal academia, I assure you this will be my last post on these matters (for now). In the previous post, I sketched how law professors can, and often do, incorporate student work into their scholarly output with less-than-adequate attribution. In perusing a few websites and articles (the very few that ever dare take up this topic), I noticed that one of the frequent defenses of this practice lies in the fact that professors must routinely direct students to their sources; provide details on how they want them analyzed and written up; and then make further modifications—usually stylistic—on the final product. All of that may be true in some circumstances, but I know from first-hand knowledge that the versions of events I set forth previously does occur. And, furthermore, I have seen little evidence that the practice isn’t widespread or just limited to a handful of wayward professors.

When a professor recruits or is given a particularly talented student research assistant (RA), there will always be a temptation to lean on that RA in order to maximize their contributions. Although elite law schools have a fairly deep pool of skilled students to serve as RAs, lower tiered environments are often filled with what I will call a “mixed bag” in terms of background skills—particularly skills that are useful for academic research and writing. When a law professor is confronted with RAs who are not particularly talented, they will often use them for very low-level tasks or, if some degree of sophistication is required, closely manage these students to ensure that they are retrieving the right sources and properly digesting them. Since many law professors—at least in my experience—lack basic management skills, this is usually not a very “clean” process, and so heavy RA turnover is often the result. (It doesn’t help that RAs are abysmally paid and the “prestige” of their work isn’t very high, either.) There is a good argument to be made, then, that these type of low-level RAs needn’t receive much more than a basic acknowledgment, assuming they’ve contributed anything at all to the final product. What my earlier remarks were directed toward were those RAs who are capable of working relatively independent of the professor and whose final written work is lifted with little-to-no modification. And by “modification” I mean quite a bit more than just moving commas around.

Personally, I never used RAs for scholarly work when I served as a faculty fellow. When I did use them, it was for lower-level projects such as collecting new materials that I may use in class; putting together speeches and presentations; or just handling some light editorial duties. Being that I was still relatively young, I thought relying on RAs might cheapen my knowledge of the fields in which I wrote (aviation and trade law) and prevent me from generating fresh insights into the various topics I took up. Moreover, there was a certain matter of pride involved. If I was going to write something and put my name on it, I wanted it to be my work, not the work of myself and X number of RAs. And when I did coauthor pieces, I made sure not to use RAs, though my coauthor—a more veteran academic—felt compelled at every turn to rely on them.

Some still insist on defending the practice of using RAs and using them to their “fullest potential.” I disagree. Doing RA work may be a nice way for students to pick up some extra cash, get in cozy with a professor or two, and expand their knowledge of some area—typically a very discrete area—of the law, but it probably doesn’t make them better lawyers. Outside of elite schools, very few law students go on to be law professors, and given the glut of lawyers and law schools currently, the need for legal academics is likely to keep decreasing in the coming years. The one meaningful benefit of being an RA—at least for me personally—was that it provided me enough of a “feel” for academic scholarship that I was able to incorporate some of that into the law-review Comment I was working on at the time. However, had I not been on law review, I don’t think my RA work would have been all that helpful, practically speaking. But then again, I did take a very impractical course once I exited law school, which makes me one of the minority of students who benefitted directly from RA work.

In the end I do not expect the present culture of plagiarism to end in law schools. Too many professors have a vested interest in the practice and students lack the organization, resources, and—quite frankly—the resolve to do anything about it. While I applaud professors who do not overstep their bounds when using student work and/or provide proper attribution when they do, I fear that they remain a rare breed. And maybe this particular issue doesn’t matter all that much in the grand scheme of things. Academic plagiarism is only one of many hypocrisies and deceits which make-up the culture of far too many American law schools.