Sunday, July 18, 2010

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.

And, not surprisingly, it was the opposing party who raised the issue of copying. Philene Taormina, AARP-Vermont's director of advocacy was concerned about "who" Hofmann was copying: "Are you really zealously representing your client, the public, when you're taking an argument from a regulated utility?" This issue evokes the Mashelkar episode in India, wherein the patent panel copied text from a drug company advocate.

Of course, even when citations are given, there can be trickiness. Going back to the Supreme Court eBay case, recall the Brief of petitioner, eBay, presented to the Supreme Court [by (among others) Jeffrey G. Randall (Skadden Arps), Carter G. Phillips (Sidley Austin) ] at p. 40:

Generally, when reexamination occurs, one recent article states that nearly 74% of the time finds the patent invalid or restricts its claims. (…) This result is unsurprising given that an overworked PTO can spend a mere 18 hours on average to review a patent application before initial issuance. [citing to Parchomovsky (but not mentioning co-author Polk Wagner), 154 U Penn L Rev 1 and then citing to Cecil Quillen (but not mentioning co-author Webster), specifically the FIRST Quillen/Webster paper, 11 Fed. Cir. B J 1 (estimating the rate of patent approvals by the PTO to be 97%).

By the time the eBay brief had been filed, Quillen and Webster had back-pedaled from the 97% number, which was based on an assumption that a patent lawyer of ordinary skill would know was untrue. However, eBay cited the first number to the Supreme Court, even though a lower, corrected number had already been published by Quillen and Webster. Later, Lemley would throw Quillen/Webster under the bus in the rubber-stamp paper, marking the ultimate discreditation of the 97% number.

Taormina's concern was about "who" Hofmann was taking material from, although the real concern for the public might be whether the material was accurate.

As IPBiz has noted many times, plagiarism is a bad thing, but presenting false material is far more damaging to the public.

**On Dershowitz

** On eBay brief

***The "Flight 1" episode of season 2 "Mad Men" has an oblique discussion of plagiarism / copying. It seems Bobby traced an image of George Washington but took credit for the art work. Don noted the ad firm had plenty of tracing paper and didn't want to be re-inventing the wheel.

Of "Flight 1"

Writer Matt Weiner really seems not to like Ivy League types, with a scence in "Flight 1" wherein Joan unloads on Princeton man Paul. And Pete Campbell comes across as totally lost in life experience.

***Recall discussion of the Dershowitz business in IPBiz in September 2004:

from "The Record" at Harvard Law

-->Dean Velvel's weblog has become a focal point of sorts over the recent plagiarism scandals. Tribe is not the only distinguished legal scholar who has corresponded with Velvel. HLS Professor Alan Dershowitz became the subject of Dean Velvel's scrutiny over comments made to the media. Seizing upon Dershowitz's public mention of "cultural differences" between the legal profession (where judges routinely take the work of lawyers and clerks in writing their opinions) and the rest of academia, Dean Velvel expressed disbelief that Dershowitz would make such a distinction the basis for an excuse.

Dershowitz responded to Velvel, acknowledging that he stood by his comment of cultural differences but explaining that it was meant to serve as an observation on how accidental plagiarism may occur, not a defense of such actions. "There is never under any circumstances any justification for plagiarism and nothing I said was intended to serve as a justification," wrote Dershowitz. Dershowitz also suggested the establishment of a committee to set out clear guidelines for the use of research assistants by law professors.


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