Judicial Plagiarism
posted by Gerard Magliocca
I’m curious to know what folks think of this hypothetical. Suppose somebody writes a law review article with an insightful and original analysis of an issue. When that issue comes before a court, the court adopts the logic of the article and closely tracks its reasoning in the opinion (in a way that’s pretty obvious), but does not cite the article. Is that wrong?
I think we’d all agree that if a student or an academic did this, it would be plagiarism. True for a court as well? One reason I ask is that courts often lift passages from briefs without attribution (John Marshall famously did this in M’Culloch v. Maryland) and nobody seems to care. Likewise, I don’t know of any examples of “judicial plagiarism” where the professor in question complained and got a court to amend its opinion and acknowledge that a particular idea that was passed off as original was, in fact, not. More broadly, one might say that all that matters is that the law gets stated correctly, not who gets the credit, especially as the professor can always write another paper that takes the credit.
July 18, 2011 at 11:09 am
Posted in: Legal Ethics
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Responses (12)
Ken Rhodes - July 18, 2011 at 12:40 pm
A law student reads a paragraph in a textbook and thinks to herself “Wow! What a clear and concise way to state that important concept!” She remembers it.
Years later she prepares a brief and those words that impressed her as clear and concise jump off her pen onto the page. Should she footnote a citation, or is she simply stating clearly and concisely a point of law she studied in law school?
Phil Cave (mljucmj) - July 18, 2011 at 1:45 pm
You might be interested in reading United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004).
Here is one of the granted issues:
This Court granted review of the following issues:
I
WHETHER THE LOWER COURT’S VERBATIM REPLICATION OF
SUBSTANTIAL PORTIONS OF THE GOVERNMENT’S ANSWER BRIEF AS
THAT COURT’S OPINION CONSTITUTES AN ABUSE OF DISCRETION,
NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND
SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.
Here is a link to the opinion on the court’s website.
http://goo.gl/Niog5
Cheers,
Emily Bremer - July 18, 2011 at 2:15 pm
Compare Chief Justice Robert’s famous ending line from Parents Involved v. Seattle:
“The way to stop discrimination on the basis of race is stop discriminating on the basis of race.” (551 U.S. 701, 748)
with Judge Bea’s final line in dissent in the Ninth Circuit decision below:
“The way to end racial discrimination is to stop discriminating by race.” (426 F.3d 1162, 1222)
Orin Kerr - July 18, 2011 at 2:27 pm
It might be sort of lame, but I don’t think it’s wrong. The purpose of a legal opinion is to express the best analysis of the law given the framework of existing precedent, not to give credit to the source of where the judge found the analysis. Credit is generous, but not required, I think.
Josh Blackman - July 18, 2011 at 3:47 pm
Eugene blogged about a case from British Columbia where the Court copied most of his decision from a party’s brief: http://volokh.com/2011/04/15/judge-copies-most-of-his-decision-from-a-partys-briefs-why-is-that-wrong/
A.J. Sutter - July 18, 2011 at 9:04 pm
Ken’s argument is one that has been used against intellectual property generally, though maybe more often for patents. Almost no inventors, it’s claimed, could get their ideas without stuff they learned in school (e.g. math and science), from books, or from seeing other peoples’ inventions.
Phil’s interesting case clearly says that when the borrowing from a brief is substantial (in both the qualitative and quantitative senses), the court hasn’t met its duty of providing an impartial and independent review. The brief borrowing raises a more important issue than plagiarism (and anyway most parties would be thrilled to have their side’s brief be the basis for the judgment). But it doesn’t seem necessarily relevant to the law review case.
In some civilian jurisdictions, esp. Germany, academic commentaries (to statutes, constitution, etc.) are considered sources of law, or awfully close to it. But they’re cited explicitly. If a judge quotes substantially (e.g., several sentences, a whole paragraph) without an attribution, seems to me that at some point that could cross the line into some sort of misconduct. The punch-line example provided by Emily might not be substantial, but does seem at least ungenerous on the part of the CJ.
However, lifting ideas from a law review article — which is Gerard’s hypothetical — isn’t quite plagiarism; and I imagine this goes on quite often in the academic world anyway. Certainly I read plenty of books and articles where I’m surprised that the author hasn’t cited some source that I’ve read previously. I also don’t expect that judges often claim originality for ideas in their opinions. (Should they give credit to their clerks, BTW? And should the “work made for hire” notion of employer appropriation apply to credit, not just ownership? For that matter, judges are employees, too.) I expect that determining where such a borrowing/appropriation crosses the lines from “reading the zeitgeist” or professional custom (as with judicial clerks) to rudeness to misconduct depends on the circumstances of each case — but that last line seems hard to cross, under the present hypothesis.
Ian - July 19, 2011 at 4:55 am
Not providing any sort of reference to source could be seen as promoting the paradoxical opposite situation where a court provides an opinion which is clearly ill informed, but where it can find no basis for any opposing view, in the expectation that somebody will provide it with that elusive element, providing the answer; or promoting a change in the regulation.
Would that be wrong?
Bill Reynolds - July 19, 2011 at 10:59 am
Over-worked cts, esp state IACs, copy freeely from briefs, w/o attribution. It has happened to me often. I have also had articles stolen from–no doubt by former students–w/o attribution. It is merely part of the game to me.
Joey - July 19, 2011 at 6:03 pm
I would think that a lot of litigants would be very pleased to see their argument appear nearly verbatim in the opinion.
(Not only does the court say exactly what you asked them to say, but in the case of a published opinion, the court also allows you to cite your own words in the future and attribute them to the court. Very handy.)
It would seem both churlish, and a bit self-undermining, to respond to such a victory by turning around and asking the court for some attribution!
Lance McMillian - July 19, 2011 at 10:32 pm
I fail to see how a court’s decision to copy a part of a brief in its opinion can lead to questions about the court’s impartiality when it is very common, especially in state court, for counsel to prepare the actual order and submit it for a judge’s signature.
Phil Cave (mljucmj) - July 20, 2011 at 10:49 am
Lance, if you refer to how the military appellate courts act, then there is a difference. Under Article 66, UCMJ, 10 U.S. Code 866, the courts of criminal appeal have the power to act as a second jury and set aside the findings of guilt for factual (as well as legal) insufficiency. They can also set aside or reduce the sentence (but not as an act of clemency). Thus, each CCA judge is required to be personally satisfied that the appellant is in fact guilty beyond reasonable doubt before he/she can vote to affirm a conviction or a sentence. Thus the concern when the court adopts almost word for word the government’s brief. As CAAF discussed, when the CCA adopts the governments brief (not just a court order) there leads to a number of potential issues. (CAAF uses the usual legal standard in Jackson v. Va.)
Interestingly, in Jenkins the remand panel gave him additional relief not already granted by the first panel. Also, there were three other cases remanded at about the same time from the same panel. So we see a distinction between almost complete adoption, as opposed to some language from parts of the parties brief, and publication of the government’s brief as the court opinion, and the parties writing a court order for the judge to sign.
Perhaps just another sign of how arcane practice in military courts can be. The thought arises then that “judicial plagarism” is contextual, and perhaps dependent on the forum and reasons the judge is writing. Oh oh, no bright-line rule or Black P.
Tim R. - July 22, 2011 at 6:50 am
Could it be copyright infringement, though? If the court quotes non-trivial portions of a (copyrighted, revenue-generating) law review article, is the court itself violating the author’s copyright? And, considering that court opinions are not copyrightable and therefore a non-cited quotation may be reproduced by others in various ways, would the person citing the quote be unintentionally violating the original author’s copyright as well?
Granted, the violation would have to be much more egregious than Gerard’s hypothetical, but…
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