Plagiarism & Lawyers

Over at the new legal writer, there's a post recommending a new article on plagiarism in law practice and legal scholarship.

This is a tricky issue for any lawyer or law student for two reasons: first, avoiding plagiarism is, for most of us, a matter of careful note taking not moral dilemma, and second, because a charge of plagiarism comes without that handy "intent" element. For the most part, strict liability is something we're accustomed to as preserving public safety. In the no-contact sport of legal writing, it seems harsh to suffer such grave consequences for an offense you can commit without meaning to.

This concept of no-fault plagiarism seems especially difficult for Millennial law students to grasp. For Xers, it's a little easier to get; it can just seem silly. I came of age researching in print sources and typing my own documents on an electric typewriter. The assembly of the document wasn't a cut-and-paste affair. Before I could type a thought, I had to read it and make some decisions: Do I type it verbatim and risk the typos inherent in copying someone else's punctuation and usage? Do I paraphrase it? And usually, these initial decisions were made on paper, lest you start typing before you were absolutely ready to commit (because less than full commitment resulted in that frustrated zip-crinkle-thud of starting the whole page over). In that context, it's hard to see how you could plagiarize *without* meaning to.

But now, the decision-making process about what to use and how to use it often takes place long after the text has been neatly cut-and-pasted from the online source into your Word (or, ahem, WordPerfect) file. That stack of sources and photocopies that were the prelude to the legal pad full of ideas are now plunked into the very file that will ultimately contain your finished product. The processes of collecting, synthesizing, and committing to a draft are now one process, deceptively called "writing."

Is it any wonder then that law students and new lawyers see as hyper-technical the distinction between cut-and-paste with quotation marks and cut-and-paste without quotation marks? They'll concede that the ideas are not their own. They'll happily give you a list of sources. But are they really going to be pulled into the labyrinthine world of honor code violations and Character & Fitness reviews over whether they remembered the quotation marks? On whether they specifically acknowledged what you clearly know: the work is not their own?

In this brave new world, one wonders whose morality is really be tested.