Sunday, August 14, 2011
As I was preparing for the new school year, I ran across Malcolm Gladwell’s excellent piece on plagiarism, Something Borrowed: Should a Charge of Plagiarism Ruin Your Life? Gladwell, author of several books including The Tipping Point, Blink, and Outliers, describes his personal experience as a plagiarism victim. Interestingly, he uses the experience to criticize a form of plagiarism fundamentalism:
Creative property, [Professor Lawrence] Lessig reminds us, has many lives – the newspaper arrives at our door, it becomes part of the archive of human knowledge, then it wraps fish. And, by the time ideas pass into their third and fourth lives, we lose track of where they came from, and we lose control of where they are going. The final dishonesty of the plagiarism fundamentalists is to encourage us to pretend that these chains of influence and evolution do not exist, and that a writer’s words have a virgin birth and an eternal life. I suppose that I could get upset about what happened to my words. I could also simply acknowledge that I had a good, long ride with [the stolen] line – and let it go.
1Ls who extend Gladwell’s logic to the legal writing context would likely find themselves in front of their law school’s honor council. This is because the purpose of plagiarism restrictions in law school is to allow professors to evaluate individual student performance. Stolen words impermissibly skew the process.
But what about other legal writing contexts? Scholarly writers take pains to attribute the source of ideas to its originator. In a scholarship market that constantly recycles ideas, however, accurately paying attribution to the original source of some ideas can be an exercise in futility. In law practice, brief writers regularly lift passages from briefs in another case without attribution. Most of the time they do so with impunity, despite the time, money, and effort the plagiarized lawyers and their clients have invested in the work product.
Teaching the differences between attribution norms in practice, scholarship, and law school writing assignments is always challenging because of the seemingly dissonant standards. Differing plagiarism standards stem from the differing, protectable interests in particular writing contexts. For Gladwell, plagiarism protections in journalism and literature should primarily serve the interest of promoting creativity and new ideas: “Old words in the service of a new idea aren’t the problem. What inhibits creativity is new words in the service of an old idea.”
Plagiarism protections in law school protect the student evaluation process. But what are the viable interests supporting attribution norms in the legal scholarship context? Creativity? Author or institutional prerogatives? All or none of the above? Is something being lost because of the lack of any meaningful plagiarism standards in law practice and brief writing?