Tuesday, March 18, 2008

Practicing Plagiarism


Professor David Sorkin of The John Marshall Law School observes that "[i]n the practice of law, the wholesale copying of others' words and ideas seems to happen all the time."  But he notes that lawyers have an ethical responsibility to "recognize plagiarism, understand it, and learn how to avoid it."  And as teachers, we have a responsibility to teach it in a way that will be meaningful for our students.

So here's another great, short article that you can use as a handout for your writing classes.  Professor Sorkin wrote Practicing Plagiarism for the Illinois Bar Journal.  It was written for practicing lawyers, but as a handout it will work quite well with your students.  You can download a copy of the article by clicking here or by going to http://ssrn.com/abstract=1100323.  (You can also give the link to your students if you want to save on the amount of copying you have to do.)

The article discusses definitions of plagiarism, questions of intent, copying from cases versus copying commentary from treatises and other secondary sources, using form books, and knowing when to cite.

Here's a sample quote (from the conclusion of the article):

Plagiarism is something lawyers must take seriously.  Passing off others' words or ideas as one's own work is unethical and potentially dangerous, even if it's merely the result of carelessness.  Understanding and avoiding plagiarism are therefore essential skills for every lawyer.

Click here to read more.



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I have concerns about distributing Sorkin's article to 1L LRW students. First, the article is 15 years old. However, more importantly, the article raises but does not, in my view, adequately address the issue that poses a conundrum for students (and practitioners) of transactional law: why isn't copying of forms plagiarism?
Sorkin's article first says the lawyer who drafts each form from scratch without using an available form from form books does a "disservice to his or her client." True, but that does not answer the question of why copying the form is not plagiarism.
Sorkin's article next states that form books are meant to be copied by attorneys and "such use would qualify as permissible 'fair use' under copyright laws . . .." But "fair use" concerns the related, but distinct, question of when does copying infringe on copyright to a degree that a fee should be paid. In effect, it ("fair use") is concerned with the degree of copying not the more fundamental question of what is plagiarism.
Sorkin's article then simply concludes that, in essence, custom should dictate when attribution is required when a student or attorney copies a form.
However, Sorkin's article never answers the question of why copying a form is not plagiarism. Indeed, copying a form seems to directly violate Sorkin's first rule of when a citation is necessary: "Always give a citation for a direct quoatation."
In short, I believe giving this article to 1Ls would generate more questions than it would answer and would create confusion.

Posted by: Curtis Nesset | Mar 19, 2008 12:35:32 PM

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