Plagiarism in Legal Academia

Following up on yesterday’s post, “A Note on Plagiarism,” I want to say a bit more about the phenomenon of plagiarism in legal academia. While some high-profile incidents have occurred in the past, it’s still a topic rarely discussed—unless it involves students. Students who commit plagiarism, such as Harvard Law graduate Megon Walker, can expect to find their career prospects crushed, assuming they are not expelled. Professors who commit plagiarism, on the other hand, have a playbook of defenses, some more plausible than others. For example, professors who are “busted” for improperly citing sources or lifting passages from other works without attribution can avail themselves of the excuse that it wasn’t their fault; one of their numerous student research assistants (RAs) must have done it. And that is the end of the story.

The problem is that the story shouldn’t end there. It’s just the beginning. Because underneath the “RA defense” is the more troubling practice of professors taking student work and passing it off as their own, often without any acknowledgment. So, for instance, Professor Jones may ask RA Smith to write five pages summarizing a federal circuit split on, say, whether or not the 1978 Airline Deregulation Act preempts civil claims against an airline that serves flat soda and stale crackers on its flights. Smith does her work, turns in the five pages of research, and probably expects that the professor will review it, incorporate elements of the research in his own prose, and that’s that. While that scenario does occur, particularly among professors who are rigorously committed to scholarly standards and jealously protect their own academic image, the more likely scenario is that the Professor Jones will simply copy-and-paste RA Smith’s work. And so when the article sees the light of day in The Journal of Air Law and Commerce or some other law review, Smith’s research, thinking, and words are forever claimed by Jones. If Smith gets any credit at all, it will be in a brief acknowledgment below the line on the article’s first page.

Some people, typically professional lawyers, don’t see a problem with this. After all, don’t law firms routinely cobble together contributions from associates which are then filed under a partner’s name? Yes, but the comparison is all wrong. Partners (hopefully) recognize the contributions of their associate underlings and based on the quality of those contributions, coupled with the usual demands for billable hours, the associates will either rise up the ranks or be pushed out. In the end, though, their work is tracked, acknowledged, and used as a basis for promotion or firing. In the legal academic sphere, RAs cannot hope to advance on their scholarly contributions unless they can cite themselves as having authored (or, rather, co-authored) an article. While RAs can certainly stick on their CVs/resumes that they worked for some professor or another, what does that even mean? As noted, some professors use RAs to gather up bits and pieces of information without expecting original analysis or writing. RA work in that scenario is less impressive than RA work which goes directly into the final published product without significant alteration or reworking. One way an RA could stand out to a future employer is to point to published work and say, “I helped write this; here’s my contribution.”

Now, perhaps there are those who would object here and say that a five-page contribution amounts to very little when discussing a 40-60 page law-review article. Perhaps. However, keep in mind that if a law student even used so much as a sentence from someone else’s work in a seminar paper or law-review note, they’re going to incur heavy penalties. Also, there are ways to credit an RA’s work without placing him or her on equal footing with the professor. For instance, an article’s byline could read: “by Professor Jones with assistance from Smith” or something similar. The point here is that proper credit is front-and-center. The acknowledgement space below the line could then be used to fully explain the RA’s contribution: “Smith authored Part III(D) of the present article, while contributing research for Parts IV thru VI.”

Why this depth of acknowledgment doesn’t regularly happen is easy enough to surmise. Most law professors have egos, and acknowledging other people’s work, especially student work, doesn’t sit well with them. They may worry that their professorial peers and students alike will think of them as weak scholars if they are open about how much they rely on RA help for their work. Professors who are not yet tenured may also worry about their job security if it seems like they cannot “hang” on their own. Whether that perception is fair or not is another matter. However, legal academics who worry that full RA acknowledgment may hurt their careers might be properly shamed into not relying on them so much. Or, if they do rely on RAs, they will do so in a more honest manner by having students do basic fact checking and editorial work rather than composing “memos” which, in truth, are just draft sections for the final article.

There is more to be said on this topic, but I will save that for next week.