Ethical issues in legal publishing
**The law review article raises the same issue raised by Professor Dershowitz in defense of Professor Tribe:
-->Is the circumstance that all three courts in Dastar v. Fox were not themselves immune from charges of reverse passing off itself idiosyncratic, somehow karmically induced by the overreaching claims of the plaintiffs in this particular piece of litigation? n349 Hardly. Judges quoting from briefs, clerks preparing opinions, parties drafting findings of facts - these circumstances form the backbone of litigation in the federal courts. n350 The matter has even drawn comment from the Ninth Circuit in a copyright case. n351
Moreover, the phenomenon of reverse passing off is scarcely limited to judicial opinions. Consider a few more instantiations. n352
It is not only judges who affix their name to legal scholarship not of their own composition.n353 The same applies to law professors n354 and to senior partners at law firms.n355<--
**As I noted earlier, the show Law & Order had a plot line involving a judge affixing his name to a law review article (on intellectual property) of which he had no knowledge. Thus, I would say this practice is something that a television audience can accept as credible. In the context of the show, it was portrayed as a bad thing, one which gave the clerk a motive to murder the judge.
** However, the law review article rejects the thinking of Dershowitz that law should have distinct rules about plagiarism:
--> The contrast between university life and "civilian pursuits" should be immediately apparent. n392 Copyright infringement never occurs, for instance, when one copies another's idea n393 or even a brief phrase of expression from a work still subject to copyright protection. n394 Furthermore, even copying the entirety of another's public domain expression - for example, Oliver Wendell Holmes, Jr.'s The Path of the Law, published in 1897 - is analytically incapable of falling afoul of copyright law. By contrast, a professor who published under his own name all or part of The Path of the Law would be guilty of the most serious academic breach, potentially deserving termination. n395 Indeed, if he purloined only an uncredited phrase or even idea, he would find himself culpable for plagiarism under the definition just quoted. n396 By the same token, a student who submitted to her professor a paper setting forth verbatim, but under her own name, paragraphs from The Path of the Law, would be subject to the full disciplinary weight that the school could bring to bear.n397<--
**Note that the Harvard Crimson argued for equal treatment of professors and students under the rules at Harvard. However, they pushed for relaxing the standard for students, not raising the standard for professors to the same as that for students. They were for "lowering the bar."
** Of note is the waggish suggestion:
-->The confluence of circumstances at issue here brings us back to Demaratus' association of the Greeks' poverty with their intelligence and the force of law. n426 The mandarin class which has chosen to staff law schools has, as a group, largely decided to foreswear the remuneration of fancy law practices in favor of "the subtle power of a postponed power." n427 As a rule, they prefer to be known as elite shapers of the law rather than for selling as many units as John Grisham and Stephen King.
Far more threatening to the metier of this class than divesting economic rights into their employers under the work-made-for-hire doctrine would be to vest exclusive attribution in the employers. Consider that Atari some years ago decided to list its corporate name as author, rather than crediting individual programmers. n428 If Stanford Law School were to adopt the same expedient, such that a given article that appears in the Duke Law Journal would not reveal whether it was authored by Larry Lessig, Margaret Radin, Paul Goldstein, or Kathleen Sullivan, we might, indeed, have a revolution on our hands.<--
** Sorry, I don't believe the mandarin class is that poorly off. For starters, the stars are probably doing a lot better than federal judges. And Lessig and Lemley are probably doing a lot better than the folks at the USPTO, the targets of much of their criticism.
** Of legal issues, as between trademark law and copyright law:
--> The problem with this argument according special treatment to communicative products is that it causes the Lanham Act to conflict with the law of copyright, which addresses that subject specifically. The right to copy, and to copy without attribution, once a copyright has expired, like "the right to make [an article whose patent has expired] - including the right to make it in precisely the shape it carried when patented passes to the public." ... The rights of a patentee or copyright holder are part of a "carefully crafted bargain," under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution. Thus, in construing the Lanham Act, we have been "careful to caution against misuse or over-extension" of trademark and related protections into areas traditionally occupied by patent or copyright. n324
The [Dastar] Court noted that its previous cases could not square with "creating a cause of action for, in effect, plagiarism - the use of otherwise unprotected works and inventions without attribution." n327<--
** The academic plagiarism issue is an interesting one, but not one with much traction, as the disappearance of the Tribe matter suggests. Although Nimmer exemplefied a hypothetical in which less well known people would be guilty of stealing from the better known Oliver Wendell Holmes, the Tribe matter involved a better known professor taking from a less known professor. There are other ethical issues which merit attention, such as journal editors publishing articles in their own journals or journal editors accepting erroneous material for publication and refusing to correct the erroneous material. But don't expect to be reading about them.