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.