The charge of "plagiarism" against Gorsuch, and a bit on the "Infant Doe" case

In a piece entitled Neil Gorsuch's 11th-hour plagiarism scare, the Salt Lake Tribune
reproduced an article by Aaron Blake of the Washington Post, which text included:


Late Tuesday night [4 April 2017], a pair of reports showed that passages in a book Gorsuch wrote a decade ago bear plenty of resemblances to other works.

As Politico's John Bresnahan and Burgess Everett wrote, a number of academics contacted said that Gorsuch was at fault, with their verdicts "ranging from calling it a clear impropriety to mere sloppiness." BuzzFeed's Chris Geidner, who first reported on the passages, also reported that other parts of the book "contain additional apparent attribution errors."

The book, "The Future of Assisted Suicide and Euthanasia," closely mimics the word choice used in a 1984 article in the Indiana Law Journal dealing with Baby Doe, who was born with Down syndrome. Often only a few words are altered between the two.
For example:
---
GORSUCH'S BOOK: "Down's syndrome is a chromosomal disorder that involves both a certain amount of physical deformity and some degree of mental retardation."
INDIANA LAW JOURNAL: "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.



An AP story by Erica Werner notes that this "plagiarism" allegation was referenced in a speech by Sen. Jeff Merkley, D-Ore. :


Merkley devoted part of his floor remarks to highlighting plagiarism charges against Gorsuch that surfaced at the last minute in documents provided to The Associated Press and other news organizations, showing similarities between Gorsuch's writings about assisted suicide and earlier pieces by other authors he did not credit. Merkley questioned whether Republicans were moving quickly to end debate on Gorsuch's nomination "before that information becomes public.



Of the actual "plagiarism," Noah Feldman wrote on April 6 [Worcester TG Edition ]:


Yet it’s also true, as Gorsuch’s defenders are insisting, that the unattributed borrowing seems to consist only of the presentation of rather dry facts — and not any argument or original idea borrowed without attribution, which would be heavy-duty plagiarism. The defenders are also right that this sort of paraphrase is actually fairly common in judicial opinions and even some legal academic writing. It’s poor form not to cite a secondary source from which you’ve mined primary sources. But it’s also not a profound violation of the sort that would call Gorsuch’s integrity or judgment into question.

BuzzFeed and Politico deserve credit for uncovering the story. I’d like to know how the passages were found, however. My strong suspicion is that someone ran the entire text of Gorsuch’s book — and no doubt all his published writings — through some kind of anti-plagiarism software. There’s no way anyone but the author of the Indiana law review article, Abigail Lawlis Kuzma, could have recognized the detailed description of the blocked esophagus of a baby referred to by the courts as Infant Doe as lifted from the article.
(...)
To be sure, Gorsuch cited the primary document: the pediatrics textbook. In that sense, he engaged in the not unknown legal practice of using a secondary source to find primary sources.



[In passing, the law review in question is Abigail Lawlis Kuzma, The Legislative Response to Infant Doe,
59 Ind. L.J. 377 (1983). The 1983 text in question is at the beginning of the article and states:

The Infant Doe case involved a child who was born with Down's syndrome and reparable n13 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. n14

Footnote 14 states: Virtually all individuals with Down's syndrome have some degree of developmental retardation. The range of IQ scores has been wide, but most individuals are trainable by adulthood. Social skills usually are closer to the normal range than performance abilities . . . . The degree of mental retardation is quite variable, but most children learn to walk and develop some communication skills; there is a steady progress of development, at a slower pace than usual . . . [and c]hildren reared at home have higher IQs than those reared in institutions.
A. RUDOLPH, PEDIATRICS 244 (17th ed. 1983).

A different law review [by MARTHA A. FIELD, published in 1993 in 16 Harv. Women's L.J. 79 ], which cited Kuzma, pointed to the issue:


Because of his retardation, the parents decided that the operation [on the esophagus] should not be performed and that the baby should not be fed intravenously. n6 The doctors' Hippocratic Oath prohibited the giving of a lethal injection, so the baby was slowly starved in the far corner of the newborn ward. (Phenobarbital and morphine were administered to aid with the baby's pain.) A pediatrician and nurse, along with others, sought a court order to feed the infant, but the judge ruled that the parents, acting together with doctors, were entitled to let the child die. n7


A different law review [by Scott Obernberger in 12 Issues L. & Med. 355 ], which cited Kuzma, noted:


It was clear from the record that the parents' decision not to treat was not based on a determination that the child was terminally ill and in pain (he was neither), but rather a "quality of life" judgment on the part of the parents n114 and one obstetrician who claimed that Down syndrome would render the child a "mere blob." n115



**As to the "copying" of Kuzma, the text was of a factual nature, and is at the level that a typical reader of the Gorsuch book would already know that Down's is genetic, and can involve physical and mental impairment. Lincoln did not have to reference the Bible for an allusion to a house divided against itself because the typical listener probably knew the "original" text.

**Shifting gears to patent regulations, the USPTO may be more "questioned" by Gorsuch than previously by Scalia:


Gorsuch's skepticism of executive branch power, however, is perhaps the area of greatest difference with Scalia. Whereas Scalia usually granted federal agencies deference to interpret vague laws and their own regulations, Gorsuch wrote last year that it was time for courts to assert more control.
"There's an elephant in the room with us today," he wrote about the judicial precedent that permits bureaucracies to "concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design. Maybe the time has come to face the behemoth."



by Richard Wolf, 13 Feb 2017.