The Consequences of Using the Words of Others

Several years ago, some lines from another law professor’s scholarship were discovered in a former colleagues own scholarship. My former colleague was not a popular guy and was not a household name. The person he had "taken" from was a well-know and popular scholar. Virtually anyone would have picked the person who was copied over my colleage as a member of his or her faculty. My friend was a very hard worker and terrific thinker. He lost his job and, to my knowledge, has not found comparable employment. I have no doubt that his copying was inadvertent. He tended to write everything on a huge stack of note cards and then incorporate it into his work and one thing led to another. I can understand 6 months later not knowing if he had copied the words on one of the cards or if they were his own. Plus, as much as law professors are interested in whether they are cited, wouldn’t it be crazy to lift from their work?

If you have been in this business long you know the importance seeking out the other side of the story and getting the facts straight. Nevertheless, as I recall, the work or language of others has been found in things written by Lawrence Tribe and, now, Ian Ayres (see Sunday’s NYT’s book review section). In England, fiction writers Julian Barnes and, again, if my memory serves, Ian McEwan, have also had the words of others show up in their own work. Although McEwan and Barnes seem to argue that lifting from others is standard procedure, in the case of law professors I do not see how it can be anything but carelessness. If Tribe and Ayres need anything it is certainty not outside assistance when it comes to writing or ideas.

My first thought on reading about these incidences of carelessness is "But for the grace of God . . . . " But then I wonder what are the rules with respect to inadvertent copying? Are they different depending on how much the copiers are liked or how high they are placed? Does the rank of the person from whom the words were taken figure into this? My very small sample suggests the rules do change depending on the ordering of the copiers and those copied.