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An original contribution to the literature

[ 157 ] April 5, 2017 |

Politico reports that Neil Gorsuch’s academic writings “borrow” from other authors. This is the publication’s squeamish way of phrasing the fact that Gorsuch put his name* to texts that lifted the work of other writers without proper attribution, which in la cosa nostra is known as plagiarism.

Here is apparently the most striking example.  Gorsuch:

“Baby Doe” (an appellation used to protect the family’s privacy) was born in Bloomington, Indiana, on April 9, 1982, with two congenital anomalies, Down’s syndrome and esophageal atresia with tracheoesophageal fistula. Down’s syndrome is a chromosomal disorder that involves both a certain amount of physical deformity and some degree of mental retardation. 49 Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus. As a result, food and drink pass to the lungs instead of the stomach, eventually resulting in suffocation unless surgery is performed to correct the malformation.50 Surgery to correct esophageal atresia with tracheoesophageal fistula is routinely performed with success, but the parents of Baby Doe refused to consent to the surgery.

Shortly after Baby Doe was born, a hearing was held at Bloomington Hospital to determine whether the parents had the right to refuse the surgery on behalf of their child. An attorney was present at the hearing to represent the parents, though no one was present to represent Baby Doe’s potentially adverse interests. Six physicians attended, three of whom had obstetric privileges and three of whom had pediatric privileges at Bloomington Hospital. The obstetricians “recommended that the child remain at Bloomington Hospital with full knowledge that surgery to correct tracheoesophageal fistula was not possible at Bloomington Hospital and that within a short period of time the child would succumb due to inability to receive nutriment and/or pneumonia.” 51 The pediatricians, meanwhile, stated that the appropriate treatment was to undertake corrective surgery immediately, and one of the pediatricians testified that the child might enjoy a reasonable quality of life. 52 The dispute wound up in a state court where the trial judge concluded that the parents had the right to refuse corrective surgery even though their child would die. The Indiana Supreme Court refused to hear an appeal, and the child died on the sixth day after he was born while a guardian ad litem was on his way to Washington, D.C., to appeal the case to the United States Supreme Court.

Here is a passage from a law review article by Abigail Lawlis Kuzma:

 

The Infant Doe case involved a child who was born with Down’s syndrome and reparable13 esophageal atresia with tracheoesophageal fistula. Down’s syndrome or “Mongolism” is an incurable chromosomal disorder that involves a certain amount of physical deformity and an unpredictable degree of mental retardation.14 Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus such that substances taken orally pass to the lungs instead of the stomach, eventually resulting in suffocation unless surgery is performed to correct the malformation.15 Corrective surgery to correct esophageal atresia with tracheoesophageal fistula is routinely performed with success,16 but the Bloomington Hospital is not equipped to handle the operation.17 However, the parents of Infant Doe refused to transfer their baby to Riley Hospital, a referral hospital in Indianapolis, Indiana, for corrective surgery.18 Approximately twenty-six hours after Infant Doe was born, a hearing was held at Bloomington Hospital to determine whether the parents had a right to choose a course of treatment for their child that consisted of allowing the child to die.19 An attorney was present at the hearing to represent the child’s parents.20 ” No attorney was present to represent Infant Doe’s interests.21 Six physicians attended the hearing, three of whom had obstetric privileges and three of whom had pediatric privileges at Bloomington Hospital.22 The obstetricians “recommended that the child remain at Bloomington Hospital with full knowledge that surgery to correct tracheoesophageal fistula was not possible at Bloomington Hospital and that within a short period of time the child would succumb due to inability to receive nutriment and/or pneumonia.”23 The obstetrician who attended Mrs. Doe at the birth of her child “testified that, even if surgery were successful, the possibility of minimally adequate quality of life was non-existent due to the child’s severe and irreversible mental retardation.”24 The three physicians with pediatric privileges who attended the hearing stated that the appropriate treatment was to transfer the infant to Riley Hospital immediately for corrective surgery, and one of the pediatricians testified that Down’s Syndrome children may have a reasonable quality of life.25

In its declaratory judgment, the court concluded that the parents of Infant Doe had the right to choose the course of treatment recommended by the obstetricians in the case, that of refusing corrective surgery and allowing the child to die.26The case was unsuccessfully brought before the Indiana Supreme Court on an Emergency Appeal,27 and the child died on the sixth day after he was born while the guardian ad litem was on his way to Washington, D.C., to appeal the case to the United States Supreme Court.28

Obviously the first passage was copied directly from the latter text, with minor re-wordings, and with no attribution to the copied text.  That’s plagiarism. There wouldn’t be the slightest ambiguity about that definition of the concept if this were a draft of a law student’s seminar paper, but since this is, shall we say, a somewhat different interpretive context, much metaphorical ink was spilled in the wee wee hours of the morning to point out that this and similar examples aren’t really plagiarism at all, because of reasons.  I give you Princeton Law School’s Robert George:

Robert George, a law professor at Princeton University who was the general editor for Gorsuch’s book, told Politico that Gorsuch “did not attempt to steal other people’s intellectual property or pass off ideas or arguments taken from other writers as his own.”

“In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn’t even any smoke,” George added.

I wonder (I don’t actually wonder; this is a rhetorical device) if Robbie George applies this standard to his own students, or for that matter to himself? Is it OK to copy long passages from another author’s work without attribution, as long as the passage in question is purely descriptive?  I would hate to think that the disciplining bodies at Princeton Law School take that view of the matter, and I’m pretty sure they don’t.

And here is Oxford’s John Finnis, the leading light of contemporary natural law philosophy, (and Gorsuch’s dissertation adviser) plunging once more into the breach:

“None of the allegations has any substance or justification.” He adds, “Neil Gorsuch’s writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he and I work.”

OK then.

In my younger and more vulnerable years my father gave me a piece of advice that I’ve been turning over in my mind ever since.

“Whenever you feel like criticizing any one,” he said to me, “just remember that all the people in this world haven’t had the advantages that you’ve had.”

He didn’t say any more, but we’ve always been fairly communicative in a somewhat reserved way, and I understood that he meant a lot more than that.  So I’m not going to claim that Neil Gorsuch’s plagiaristic tendencies are some sort of horrible character flaw, or render him unfit for the Supreme Court.  ” Judge not, lest you be judged,” is the most novel way I can think of to phrase the matter.

But it’s funny in a pathetic sort of way to see people like George and Finnis falling all over themselves to claim that plagiarism isn’t plagiarism.

*Of course it’s quite possible that Gorsuch had nothing to do with the copying of this passage at all, since much high falutin’ academic writing is actually produced by  semi-anonymous and mostly uncredited research assistants. (This is of course a standard dodge when academics get caught doing this kind of thing).  See, too, infra op. cit. the habit of referring to the opinions of judges as if they had actually been written by the judges themselves, as opposed to their clerks.  This kind of meta-plagiarism is its own kettle of fish, to coin a phrase.

 

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  1. rea says:

    Robert George, a law professor at Princeton University

    When did Princeton get a law school?

    • WMB says:

      I believe Paul is mocking George’s qualification to opine on the issue.

      • GFW says:

        TLDR – he has a J.D. and teaches at Princeton, but he doesn’t *exactly* teach law.

        Detail:

        1. The TPM article refers to “Robert George, a law professor at Princeton University who was the general editor for Gorsuch’s book” (hmm, maybe has an interest in this not being a case of plagiarism he didn’t catch). Robert George’s Princeton Bio page is in the Department of Politics(*) says he is “McCormick Professor of Jurisprudence. Professor of Politics. Parliamentarian.” It also states: “A graduate of Swarthmore College, he holds J.D. and M.T.S. degrees from Harvard University and the degree of D.Phil. from Oxford University.”

        2. “Princeton Law School” does not exist. It “began instruction in 1847 as a modest effort consisting of three professors: Joseph Coerten Hornblower, Richard Stockton Field, and James S. Green. Only seven students obtained a law degree before the school closed in 1852.” [https://en.wikipedia.org/wiki/Princeton_Law_School]

        (*) I don’t know the precise relationship between the Department of Politics and the Woodrow Wilson School. It would appear they are technically separate but have some joint positions/programs.

    • LFC says:

      Never, afaik.
      (Perhaps the reference to ‘Princeton Law School’ is a joke by P.Campos?)

    • Hayden Arse says:

      Apparently he has a doctorate in philosophy, but who ever said you have to have a JD or be on the faculty of a law school to teach law and therefore be called a “law professor”.

    • Crusty says:

      Princeton’s law school is so prestigious that it is secret. Admission is by invitation only. If you wonder why you’ve never heard of it, its because you’re not cool enough. I’m a graduate, but I’m not really supposed to tell anyone.

    • JKTH says:

      It’s blockquoted but I don’t actually see that written in the Politico article.

  2. DiTurno says:

    In any school in America, that’s a slam dunk plagiarism case. George and Finnis are lying.

    • aaronl says:

      Although I suspect that a law student, caught by a professor or student editor committing similar ‘borrowing’ in a student note, would at a minimum have been told to provide proper attribution or to revise the problematic passages, the profession’s problem with plagiarism runs deeper than the sometimes casual use of other people’s material in briefs and court opinions.

    • sharculese says:

      It’s Robbie George. Never assume it’s lying when stupid and crazy are plausible explanations.

      • Princetonlawyer says:

        Not to mention sanctimonious, and the sort of arrogant religious bully that Jesus condemned with a whole heart, beneath a false front of humble-pie-ety of the sort J.C. also couldn’t stand (being a mensch, unlike Robbie George.)

  3. Gregor Sansa says:

    Did Gorsuch cite Kuzma elsewhere in the book?

    Also, note the part that Gorsuch left out: the obstetrician said that the child would never have a good quality of life. He did include the fact that one of the pediatricians said the opposite. I’d say that keeping relevant evidence off of Justice’s scales like that is probably a more serious fault in a potential Supreme Court Justice than plagiarism. In this case, the plagiarism is just something that makes the biased presentation of evidence glaringly obvious.

    • Gregor Sansa's Sock says:

      That puts me in mind of a political cartoon: Justice, blindfolded, holds her scales in one hand, with evidence on one side; with her other hand, she’s putting evidence on the other. But she doesn’t realize that Gorsuch has his hand over the other scale, so that she’s just putting something in his hand. The scales are labeled “Republican evidence”, and “Democrat…” with the rest of the label obscured by Gorsuch’s waiting hand. Meanwhile, Gorsuch is wearing a dunce cap and donkey ears, and has no pants, with a plagiarized mudflap Scalia tattooed on his ass.

      Anyone who draws this must cite this sock.

    • Dave W. says:

      Also note how the quote from the other pediatrician got transformed. In the original: “one of the pediatricians testified that Down’s Syndrome children may have a reasonable quality of life.” In Gorsuch’s paraphrase: “one of the pediatricians testified that the child might enjoy a reasonable quality of life.” Note how a claim about Down’s Syndrome children in general mutates into a specific claim about this particular child. The former statement is certainly true for some children with Down’s syndrome, but we have no idea from the summary whether there are specific reasons to believe that it applies to this particular child – we only know that the obstetrician who actually delivered the child disagreed.

  4. Mudge says:

    IOKIYAR. The driving force.

  5. Gregor Sansa says:

    There seems to be some meta-joke in the writing of this post here that I’m not getting. Paul is being hyper-conspicuous about citing some things (his father’s advice) but not others (“judge not”, “kettle of fish”). But I don’t see what’s the punch line.

    • N__B says:

      But I don’t see what’s the punch line.

      “Neil Gorsuch.”

    • NonyNony says:

      If you don’t recognize his father’s advice, google it.

      I think it’s funny, but only because I recognized that it wasn’t original to Paul.

    • Thom says:

      I’m not sure, re Paul, but lawyers and particularly judges have a weird relationship to the practice of using the words of others. Lawyers write briefs with the specific aim of getting judges to use not just their reasoning and conclusions, but also their words. And judges do this regularly.

      • Crusty says:

        Legal practice and advocacy are a wholly different venue than journal articles and scholarship.

        • Thom says:

          Yes, in theory. But perhaps not in the mind of the judge who is writing a journal article or book.

          • Thom says:

            I’m all for criticizing Gorsuch, and for maintaining standards against plagiarism. I’m just pointing out that practice in the legal field could lead one down this road.

            • Crusty says:

              Er, I disagree. I’m trying to think of the proper analogy, but we wouldn’t have bought it if Deion Sanders or Bo Jackson ran onto the football field with a baseball bat in their hands and said oh, I forgot, I’m just so used to using one of these when I play the sportsball.

            • Warren Terra says:

              In a legal brief or a courtroom argument, absolutely. In a book, maybe, though that’s a stretch. In a law review article, never.

              There have been debates here on LGM about the merits of law review articles and the quality of their review and editing (debates I as an outsider find interesting but I’m not going to try to weigh in on), but it’s clear that they explicitly and self-consciously follow academic-literature conventions, including in citation and against plagiarism.

              • timb says:

                When we wrote for our classes in law school, we were instructed to attribute every fact, every quote, every idea. Wasn’t like I went to Harvard or Chicago either

                • Captain Tuttle says:

                  That’s exactly right. When you are righting a brief or a contract or some other piece of practical legal writing, anything goes. If you find that somebody already said exactly what you want to say, I don’t feel like there’s a real stigma in using the prior version. Plagiarism really isn’t an issue; the only real issue is making sure that you correctly characterize the state of the law. If you say that such-and-such case is the latest statement by the applicable court, you have to be right. You can argue whether that decision applies to your particular facts, but it’s a big no no to cite a case that’s been overturned, or to cite it for something that’s too much of a stretch. (I know my fellow lawyers know this; I’m just explaining to civilians.)

                  But academic papers and books are completely different. And anyone who has been on a law review (as Gorsuch must have been) and written academic articles know’s the difference.

                  I’m doing research for a legal academic article I want to write. It involves reading papers in performance studies and other branches of the humanities in addition to legal articles, and I’m a little surprised at how few citations and notes the humanities articles seem to have compared to law review articles.

                • Thom says:

                  I agree. I got this instruction too (Berkeley). (I left law and became a historian where this practice proved very useful.) But the way things are done in courtroom practice undermines this, and contributes to a sense that legal scholarship is more about form than actual intellectual engagement.

          • twbb says:

            How about a judge with a research doctorate?

      • timb says:

        And we love it!

  6. sleepyirv says:

    During my student life, I don’t remember how many times that I had to reiterate some boring fact pattern that the secondary literature had already produced a million times before. Why did the professor need to read another recantation of FDR’s first 100 days or whatever? But I did it, even if my banal background information paragraphs brought nothing to scholarship because that was the assignment.

    If it’s one example, it’s one example. If he’s done it twice, however, it means he’s done a million times.

  7. NonyNony says:

    I hope that the students of John Finnis and Robbie George take note of this and if they are ever accused of plagiarism in class they can pull out these defenses to explain why they didn’t think their profs would have a problem with it.

    • Little Chak says:

      That was my reaction. I never once did something like this when I was just an undergraduate college student. My understanding was always that rearranging sentences and using a thesaurus to obscure plagiarism was plagiarism; I mean, we were taught that early on in high school. I was also taught that if I ever felt tempted to do that, I should just quote the original source and then expound upon it.

      Little did I know that I could have just cribbed entire paragraphs by slight rewording, conjoining sentences, etc., and then cited Not Even Smoke, George and Finnis, 2017, in my defense.

      • Warren Terra says:

        that rearranging sentences and using a thesaurus to obscure plagiarism was plagiarism

        That’s really the kicker, isn’t it? He was clearly trying to erase the fingerprints, to make the text his own, and entirely out of arrogance. No-one would have cared if he’d kicked off with some version of “As previously summarized in ____, the facts are these:”, but apparently acknowledging your sources is for the weak.

        • Lee Rudolph says:

          Some of his embellishments are pretty interesting, though. For instance, in the first highlighted (lime-green) sentence of the first side-by-side graphic cited by Abbey Bartlet below, he deleted “incurable” from the original’s “incurable genetic disorder”. Hmm.

          • Just_Dropping_By says:

            At the present state of genetic technology, genetic disorders are all by definition “incurable” (they are, at best, “treatable”) so it’s redundant. I’ll stipulate that Gorsuch plagiarized the cited passage, but in that instance his editing improved on the original.

    • searcher says:

      Has anyone started digging into their own work to see if they, ahh, hold themselves to the same standards they hold Gorsuch to? If they literally see nothing wrong, maybe they are smarmy Republicans covering for a smarmy Republican, or maybe they just view plagiarism as standard practice…

  8. msdc says:

    Isn’t it funny how the people who supervised Gorsuch’s dissertation and published it as a book insist there’s nothing wrong with his scholarship.

  9. C.V. Danes says:

    If it looks like it and smells like it…

    That being said, should we be surprised at the lack of original thought from an ideology that hasn’t fundamentally changed since it was conceived in the Dark Ages?

  10. Karen24 says:

    If he’d been nominated by HIllary Clinton every major news outlet, the entire Republican Party, and Senator Berne Sanders and his army of bots would be calling for his nomination to be pulled AND for her resignation.

    • efgoldman says:

      the entire Republican Party, and Senator Berne Sanders and his army of bots would be calling for his nomination to be pulled AND for her resignation.

      And, in fact, he would be expected to withdraw on his own, to avoid any further embarrassment for the president and the administration.

      If someone can get Yertle McTurtle to stand still long enough, they ought to ask him, with an open mic, why he wants to put a plagiarist on the court where a first year law student would be failed.

    • gmack says:

      Probably not her resignation, at least not from most major news outlets. We would however get treated with dozens of think pieces and pundit commentaries about how this whole affair demonstrates the disorganization of the Clinton White House (“why didn’t anyone vet this!?”) and/or its lax ethical standards.

      • NonyNony says:

        dozens of think pieces and pundit commentaries about how this whole affair demonstrates the disorganization of the Clinton White House (“why didn’t anyone vet this!?”) and/or its lax ethical standards.

        Ah, see, Trump’s success is that prior to taking the oath of office we’d already had eleventy-million think pieces about his disorganization and lax ethical standards, so at this point it’s all “dog bites man” territory and not “worth reporting on”.

      • Thom says:

        Shadows are cast!

    • Warren Terra says:

      If he’d been nominated by Hillary Clinton every major news outlet, the entire Republican Party, and Senator Bernie Sanders and his army of bots would be calling for his nomination to be pulled AND for her resignation.

      That last word – you misspelled “execution”

    • Incontinentia Buttocks says:

      Because Bernie Sanders spent the entire general election campaign attacking Clinton? That must explain why all his supporters voted for Jill Stein!

      The only way to stop relitigating last year’s Democratic primary is to stop relitigating last year’s primary. If this blog’s comment threads are any indication, those who supported Clinton last spring are as committed to keeping up the nonsense as are those who supported Sanders.

      • Lee Rudolph says:

        The only way to stop relitigating last year’s Democratic primary is to stop relitigating last year’s primary. (Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 748 (2007), Roberts, C. J.)

      • daves09 says:

        When the sage of Burlington stops perhaps others will as well.
        A preemptive strike on his ’20 run.

      • twbb says:

        The campaign must be constantly relitigated, but not against the respective campaigners. It has to be relitigated against the press. They have to be constantly called out on this because eventually it might sink in and unbias them when it comes to Democrat candidates who aren’t named Obama (sort of how the right wing successfully biased the press through constant complaining and criticizing).

  11. mombrava says:

    I think these profs are suggesting that plagiarism of this kind–i.e copying “purely descriptive” passages from others work and passing it off as their own writing–is standard practice in legal philosophy.

    • Crusty says:

      To some extent, it is, the distinguishing factor being the extent to which you footnote it. While footnotes solve the lack of attribution/stealing/passing someone else’s work off as your own problem, they don’t do anything about the lack of original thought/just regurgitating someone else’s idea issue.

      • humanoid.panda says:

        Right. But to my mind, if you are quoting technical stuff, there is nothing wrong with simple quotations marks +footnotes. And to the extent he is copying legal stuff, this doesn’t really rise to level of “stealing ideas.”

        • Crusty says:

          Personally, I don’t think there are a whole lot of original ideas in legal scholarship other than advocating for or opining on new legislation. The rest of it is just a big circle jerk. And I say this as a graduate of Princeton law.

          • Thom says:

            As a graduate of Boalt (Berkeley), I agree.

          • timb says:

            One of my professors told us to attribute because “none of you will ever have an original idea on the subject of law.” I imagine the other snowflakes were annoyed, but as a 35 year old who had read Bush v Gore, and Quirin, and Korematsu, I applauded his cynicism. The more lawyers stop thinking of law as some rarefied alchemy, instead of one giant exercise in motivated reasoning and politics, the sooner we can use it pragmatically to fix stupid stuff. (See Posner, yesterday)

    • efgoldman says:

      I think these profs are suggesting….

      Is “suggesting” like “clouds” and “suspicions” and “appearance”?

  12. BiloSagdiyev says:

    “Whenever you feel like criticizing any one,” he said to me, “just remember that all the people in this world haven’t had the advantages that you’ve had.”

    What if they’ve had every advantage in the world? That’s who we’re dealing with with the GOP elite, all too often. When do we get to whack them with a canoe paddle?

    Sometimes I feel the GOP has devolved into something committed to avoiding even the mere appearance of propriety.

  13. Denverite says:

    I’m both sympathetic and I’m not.

    I’m sympathetic because doing what Gorsuch did — copying and pasting a passage from a source, changing a few words here and there so you don’t have to use quotes, and “borrowing” the sources that the passage cites — is pretty commonplace in practical legal writing, where speed is an issue, and where the main purpose is advocacy, not producing a published work. You’d hope that judges cite the original source for that in opinions, but I’m sure that they (and their clerks) don’t from time to time. I’m sure I didn’t when I was clerking.

    I’m not sympathetic because a law review article isn’t a legal brief or even a judicial opinion. The citation rules are just different. Gorsuch should have realized that.

    • Gregor Sansa's Sock's Sock says:

      It was his book, not a law review article. You know, the book that was totally NOT just a coded message about Roe v. Wade IN ANY WAY.

      • Gregor Sansa's Sock's Sock's Sock says:

        (I can drop these silly nyms as soon as somebody replies to my incest thread above.)

        • NonyNony says:

          Oh no – I want to see how many socks you own.

          • Gregor Sansa's Sock's Sock's Sock's Sock says:

            It’s a prime number. And yes, that is a threat! So do it soon!

            • sibusisodan says:

              Why do you have a prime number of socks? Do you mix n match?

              Follow up: whose socks are we talking about here? Gregor Sansa? Or do his socks own socks their own right? Have they been set free?

              • N__B says:

                Picture this but with feet.

              • Gregor Sansa's Sock's Sock's Sock's Sock's Sock says:

                I (indirectly) own a prime number of socks; and I have a countably infinite number of dolls with any integer number of feet. It makes dress-up time more fun!

                But to find out more, you have to reply to my kaltsanically incestuous thread above.

                • sibusisodan says:

                  Indirect sock ownership? You mean counting socks owned by Gregor Sansa and all derivative socks under him?

                  Or do you have a holding company in the Bahamas (Gregor Sansa Socks LLC) from which you several lease the socks?

                • Gregor Sansa's Sock's Sock's Sock's Sock's Sock's Sock says:

                  Actually, I messed up the joke, so it turns out that the numbers of indirect socks owned by Gregor Sansa’s Sock’s Sock’s Sock and by Gregor Sansa’s Sock’s Sock’s Sock’s Sock’s Sock are both prime. Which is totally possible, even preserving the pattern of single chain of sock ownership (SCSO). But somebody had better reply to the original incest soon or this will get ugly.

                • Q.E.Dumbass says:

                  Is the incest referring to the baby’s conception, or that it currently consists of only socks?

      • Warren Terra says:

        It was his book, not a law review article.

        I haven’t spent time sorting it out, but Politico says it was a law review article and a book, and other commenters here appear to indicate it was his dissertation, or a law review article included in his dissertation, which was then adapted into a book

  14. Hogan says:

    It’s a reboot. No, wait, it’s an hommage. No, wait, it’s a parody.

  15. gmack says:

    This coming Friday, I will be chairing my third academic integrity hearing this semester. Like the other ones did, this one will deal with a case of plagiarism. Penalties for plagiarism in our institution vary, depending on the severity of the case, the particularities of the student (our cases frequently involve ESL students, and we often try to avoid overly punitive approaches in those cases), and whether it’s a second (or third! or fourth!) offense. One of the issues we try to convey in these hearings is that plagiarism is a serious offense, that the institution of the academy is premised on presenting one’s own work.

    Cases like this, particularly when we have professors at prestigious schools who are arguing that copy/pasting can be just fine, don’t help in this matter at all.

    • Captain Tuttle says:

      Back in the dark ages, when Captain Tuttle was but Midshipman Tuttle, I attended the University of Virginia. The Honor Code at UVa requires dismissal (the “single sanction”) for lying, cheating or stealing. I have a lot of problems with the UVa in general and the Honor Code in particular, but it did impress on me, and I think on my compatriots, the seriousness of plagiarism.

  16. Origami Isopod says:

    by Abigail Lawlis Kuzma

    Who’s surprised that a male Rethug is stealing a woman’s ideas and presenting them as his own?

  17. Lee Rudolph says:

    I give you Princeton Law School’s Robert George

    He’s has a named Professorship of Jurisprudence, in what department or program I neither know nor care to find out; but there is no “Princeton Law School” (any more than there’s a “Princeton Medical School” or a “Princeton Business School”).

  18. Lee Rudolph says:

    I give you Princeton Law School’s Robert George

    He has a named Professorship of Jurisprudence, in what department or program I neither know nor care to find out; but there is no “Princeton Law School” (any more than there’s a “Princeton Medical School” or a “Princeton Business School”).

    • Gregor Sansa's Sock's Sock's Sock's Sock says:

      That’s a funny comment! Funnier than the original.

    • Jordan says:

      So, I was in a (relevant) guest seminar at Princeton this one time. It was philosophy, and we were – as is our wont – talking about fairly abstract and silly things.

      Basically, the guest was proposing you could possibly incrementally change things such that every individual change was pareto efficient, while the eventual result was *anonymously* pareto efficient (i.e.: that for any individual person in the former state, there is someone else better off in the latter state, and it was 1-1 onto, but they weren’t necessarily the same person each time). With some extra stuff, this was support for anonymous pareto efficient policies.

      Anyways, to do this he had to address the fact that this required individuals to possibly change sex/gender/orientation in the possible (and very much not actual) change. (this all makes more sense in the original, I’m missing key parts, and he only needed possibilities to make his point, not actualities. It sounds way worse the way I wrote it.)

      So, once we got to the question and answer period, I was like: well, there are bigots out there. Um, Um, *they* would be unhappy with people being able to do that, right? Um, uh, I mean they aren’t good people, but they’d probably be unhappy with that state of affairs, so …

      Princeton professor: Oh, you mean people like Robby George.

  19. Joe_JP says:

    Sen. Jeff Merkley just finished speaking for around 15hr.

    The trolls are speaking now.

  20. sam says:

    I wonder (genuinely) if some folks trying to excuse gorsuch are confusing some concepts.

    There is an area of legal writing that cannot be copyrighted – legal decisions. So those can be quoted/cited reused to your hearts content without having to, say, get the permission of the author.

    Of course – if you copy legal decisions without citation and tried to pass the writing off as your own, you’d still be guilty of plagarism. They’re two different things.

  21. WabacMachinist says:

    In my younger and more vulnerable years my father gave me some advice that I’ve been turning over in my mind ever since.

    “Whenever you feel like criticizing any one,” he told me, “just remember that all the people in this world haven’t had the advantages that you’ve had.”

    He didn’t say any more, but we’ve always been unusually communicative in a reserved way, and I understood that he meant a great deal more than that.

    This opening passage from Fitzgerald’s The Great Gatsby bears a suspicious resemblance to our contributor’s statement above.
    I guess we’re getting an exercise in Spot The Plagiarism.

  22. I wonder how many of the plagiarized writers are, like Kuzma, women. I also wonder why Politico only quoted women claiming to believe Gorsuch plagiarized.

    I mean, there’s a well known social practice, probably stemming from evolution, where women suggest ideas and they’re championed by men. Somehow liberals aren’t aware of this though.

  23. Warren Terra says:

    The official position of the White House is that legal writings are different and it’s cool to use whole chunks of others’ texts as your own. Sadly they fail to properly cite their sources for their argument, but I’m pretty sure you can find it thoroughly explained someplace in The Federalist Papers, which I totally wrote.

    • Denverite says:

      This is just wrong. Again, as noted above, it’s common practice in practical legal writing (briefs, memos, etc.) to “borrow” significant chunks of texts from other sources (mostly judicial opinions, but also sometimes briefs in prior cases). You see this especially on boilerplate stuff like the legal standard of review or whatnot where it’s just black-letter law.* You do this because the borrowed text cites a bunch of cases for the various propositions, and it’s a quick and easy way to save time on an undisputed issue. It’s best practices to cite the borrowed source and then note that it in turn was citing all of the other sources, but that frequently isn’t done. Again, I’m sure I’ve done it while writing briefs, and I probably did it while drafting opinions while clerking. As for Gorsuch’s opinions, it’s sloppy and lazy on the part of his clerks (full disclosure: I know at least a couple of former Gorsuch clerks), but there’s simply no way he would know what they were doing. On the whole, I have to agree with the people saying NBD.

      But a legal ACADEMIC piece is different. Different attribution standards and customs apply, and it certainly isn’t standard for an academic author to “borrow” heavily from another academic piece without attribution. That’s a no-no, and if an editor sees it more than once (once could be a mistake IMO), they should pull the piece because the author is either dishonest or too lazy to be published.

      * This occasionally causes funny problems, like when one opinion miscites an incorrect or outdated statute or rule, and then you see that miscitation picked up and reproduced by dozens of other opinions. This is why I ALWAYS citecheck anything that is filed on my behalf. I check every single cited case, rule and record citation unless I’m sure that it’s been citechecked BY ME in the past six months. You just never can trust that anything says what someone else says it says unless you lay your own eyes upon it.

      • Denverite says:

        To be clear, the WH’s position is just wrong.

      • Captain Tuttle says:

        If you’ve never seen a law review article, you can’t believe the number of citations. Remember, most law reviews are edited by students, so the only thing they can really do is check to make sure that every statement is properly attributed and every assertion of fact has a correct citation.

        That doesn’t mean the article isn’t stupid. Reading a bunch of stuff on originalism now. The articles defending Bork, Scalia, et al. are just awful.

        Also, this White House would have to go up 50 IQ points just to get to wrong.

  24. It is peculiar that this wasn’t spotted earlier. I recently had a district court judge speak to my Con Law class about his experience with the appointment process and one of the things he described was the thoroughness of the vetting. He had to submit copies of every article he ever wrote (quite a bit of material in his case), and provide urls for every internet site where he was mentioned (one more reason I will never be a federal court judge). Even at that, the DOJ staffer who was assigned to assist with his vetting preparation still found material he’d forgotten about, or missed, and so did the staff of at least one Judiciary Committee member. Gorsuch’s book is a key credential for him, and you’d like to think that somewhere along the way someone source checked it.

    Will it make any difference? Probably not? Should it? If it were one of my students you bet your ass it would

    • Les Aristos says:

      Extreme vettingⓉⓂ.

    • NonyNony says:

      I’m sure the proper vetting was done. His name was on a list handed to the Trump administration by the Federalist Society, and Trump’s minions then made sure that Gorsuch had never publicly or privately expressed any criticism of Trump.

      The thing about this is that this kind of scandal is only a scandal if you are running an administration that is trying to earn the respect and trust of the people. In an Obama or Clinton administration this would be a huge black eye because it shows that your staff are so incompetent they can’t avoid a minor plagiarism scandal in their nominee.

      Trump’s administration does not care about earning the respect or trust of people. And when that’s the case there’s no need to do any vetting at all beyond making sure that he toes the right political lines and that he hasn’t badmouthed the Big Boss. Because why does it matter? The nominee is either going to get through or not get through and the vote will be largely on political lines. It’s not like Trump is trying to make a show of how much you should trust him – he doesn’t want to be trusted, he wants to be respected and those are different things.

    • JHGII says:

      Yeah, and with all the vetting, reviewing, asskissing and need for absolute accuracy and whatever, no one picked up that it’s called Down Syndrome, no apostrophe, no ‘s’.

  25. Jordan says:

    Fuck Robbie George forever, and a truly great shitpost. 10/10 would read again.

  26. CJColucci says:

    Both authors wrote about basic facts — all of which came, in both pieces, from other sources, like an opinion in the case in question — in pretty spare, direct prose. The style in the Gorsuch piece doesn’t seem to have many of Gorsuch’s stylistic tendencies, but the text doesn’t give much occasion for them. (I can’t speak about the other author.) It is almost the equivalent of the boilerplate in a brief. It would not surprise me if two competent writers, covering dry material that doesn’t allow for much style, or much variation in the order of the telling, could sound very similar.
    That’s assuming Gorsuch wrote the language. If a clerk did, and cut-and-pasted and tweaked, it looks as though there are enough footnotes to account for everything and Gorsuch would have had no reason to suspect a cut-and-paste.

    • fellenst says:

      Cribbing from this Reddit analysis and other comments I saw there, Gorsuch copy-pasted his citations as well, including to (by the time of Gorsuch’s writing) a 20-year-old smalltown newspaper article and a very out-of-date medical textbook. The only reason to use those cites is because you copied them. The charitable interpretation is he forgot the “as quoted by” reference to Kuzma, but it’s a clear-cut case of plagiarism regardless. And the less charitable interpretation is that Gorsuch wanted it to look like his original research because that’s more impressive.

      • Gregor Sansa says:

        If Kuzma presents facts ABCDEFG and Gorsuch presents facts ABCDFG, leaving out E because it’s inconvenient to his case, the argument that there was only one possible ordering and wording because it’s just the facts doesn’t hold a lot of water.

  27. Bloix says:

    Under Princeton’s academic integrity policy, Gorsuch committed plagiarism.
    http://www.princeton.edu/pr/pub/integrity/pages/plagiarism/

    Plagiarism when detected leads to a hearing. “When the committee concludes that a student ought to have known that they had committed a violation, the penalty is separation from the University.”
    http://www.princeton.edu/pr/pub/integrity/pages/discipline/

  28. Bloix says:

    PS- the academic crime is not merely copying from Kuzma. It’s his implicit claim that he personally researched and reviewed the primary sources and evaluated them. This is not like paraphrasing some boilerplate facts. It’s pretending that you’ve personally examined the evidence. A judge shouldn’t do that sort of thing.

    • Gregor Sansa says:

      And (as my socking above was trying to highlight but may have obscured), he actually left out one sentence in a transparently biased way. So as a presentation of the facts of the case it fails at every level.

  29. twbb says:

    Gorsuch will be appointed to SCOTUS; there’s no doubt about that.

    But I do like the idea of trashing his scholarly reputation beforehand. That could conceivably weaken his influence once he gets there.

  30. […] committee (John Keown), and the general editor of Gorsuch’s book (Robert George). When they minimize what Gorsuch did, these scholars are hardly arguing against interest, either ideological (a shared […]

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