Monday, March 23, 2015

Lawyers copying other lawyers: plus ça change, plus c'est la même chose

More than ten years ago, in the context of defending Professor Laurence Tribe against charges of plagiarism, Professor Alan Dershowitz made his famous "cultural difference" observation.  As recounted on Dean Velvel's blog in September 2004:


According to The Crimson, Dershowitz said that there is a "‘cultural difference’" between sourcing in the legal profession and in other academic disciplines. With the rest of the sentence being The Crimson’s words, albeit reflecting Dershowitz’s ideas, The Crimson wrote that "He said that judges frequently rely on lawyers’ briefs and clerks’ memoranda in drafting opinions. This results in a ‘cultural difference’ between sourcing in the legal profession and other academic disciplines, Dershowitz said."
The Globe wrote the following:
Dershowitz said yesterday that law and academia sometimes have different standards, and Harvard Law School would benefit from establishing a committee to lay out clear guidelines on attribution and the use of assistants. ‘Particularly in law schools, the rules are not clear, because there is a culture of judges and lawyers relying on the work of assistants,’ he said.
Wow! A "‘cultural difference’" between law and other academic fields. You mean, Professor Dershowitz, that because of this "‘cultural difference’" it is not okay for other professors to plagiarize, but it is okay for law professors to plagiarize? At least if they are Harvard law professors? You mean that because there is a culture of judges and lawyers using assistants’ work without attribution -- some might say they in effect steal their assistants’ work -- it is therefore okay for law professors to plagiarize from others when writing a book? You mean that because judges and lawyers use assistants’ work without attribution, the rules therefore "are not clear" for law professors when writing a book? Do you really mean these things, Professor Dershowitz? You don’t really mean them, do you? -- "Say it ain’t so, Joe." Because if it is so, you are spewing unvarnished "bovine excrement," to use a euphemism from a recent Sports Illustrated article (a euphemism which, if memory serves, was used previously by Norman Schwarzkopf)

About five years ago, there was a curious plagiarism flap between lawyers in Vermont. As recounted by IPBiz in the post
Plagiarism flap among lawyers in Vermont

During the discussion of the plagiarism by Laurence Tribe of work by a professor at the University of Virginia, fellow Harvard Law professor Allan Dershowitz presented a defense, maintaining there was a “cultural difference” between sourcing in the legal profession and other academic disciplines. That is, there was custom and practice of NOT attributing sources of copied material.

Fast forward to the year 2010, and there is an issue with the unattributed copying by one lawyer, Sarah Hofmann, the director for public advocacy of Vermont Public Service Department of text from the filing of another lawyer, David Mullett, an attorney for the Vermont Electric Cooperative and municipal electric departments.

A businessweek story quoted Brian Porto, an associate professor in the legal writing program at Vermont Law School: "If you're taking someone else's idea and not citing the person, and you're falsely suggesting that those ideas are your own, certainly within the definition of plagiarism that comes within it." One wonders why businessweek did not discuss the matter with Professor Dershowitz of Harvard Law.

Now, in March 2015, Law360 discusses another lawyer plagiarism matter.

An administrative law judge has reprimanded two Jackson Lewis PC attorneys for allegedly ripping off a large portion of a position statement filed in a case accusing their client of discriminating against noncitizen workers from a U.S. Citizenship and Immigration Services document, saying the attorneys committed “a blatant act of plagiarism.”

**See also the 2008 post on IPBiz
Do law schools promote a culture of copying?


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