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Plagiarism and the Gorsuch nomination

I harbor no illusions, especially with the filibuster eliminated for Supreme Court nominations, that Judge Neil Gorsuch’s nomination will be derailed by claims, presented in Politico and Buzzfeed on Tuesday, that the nominee had used language from source material without attribution in his book and a 2000 law review article. (Here are the passages in dispute, so you can examine them side-by-side and draw your own conclusions about whether an offense was committed, and if so, how severe it was. Noah Feldman, for one, considers the plagiarism “embarrassing,” but not disqualifying.) Senate Republicans have made it this far in their effort to fence the stolen ninth seat on the Court, and it’s hard to envision that there will be sufficient defections for anything shy of confessing to being a devout Muslim or having performed an abortion. But here’s why the claims of plagiarism should matter.

When I talk to my students on the first day of class about academic honesty, I start by discussing Pete Rose’s ban from Major League Baseball (after telling less sports-literate students who Rose is). Even before the emergence of on-line gambling and daily fantasy sports, betting on major-league baseball games (as opposed to running bookmaking operations) was not considered a major criminal offense in American society writ large. But within the milieu of professional baseball, it has been considered a capital offense since 1927, when Major League Baseball adopted a stringent ban in response to the Black Sox scandal that tainted the 1919 World Series. Allowing players or coaches to wager on games in which they could directly influence the outcome (or even in games in which they couldn’t) would directly damage the integrity of the enterprise. The game could not survive without fans being able to trust that participants had no pecuniary interest in failing to try to win.

Similarly, the integrity of the academic enterprise requires that readers be informed about which words and ideas are the writer’s, and which ones come from outside sources. Disclosure enables readers to check that the author has represented his or her source’s ideas and words accurately, and to consider the source’s credibility when assessing the citing author’s work. The academic enterprise suffers irreparable harm when readers can’t assume a certain level of honesty on the part of authors.

The defenses of Gorsuch don’t hold up terribly well. Among the defenders presented by the White House were his mentor at Oxford (John Finnis), an external member of Gorsuch’s dissertation committee (John Keown), and the general editor of Gorsuch’s book (Robert George). When they minimize what Gorsuch did, these scholars are hardly arguing against interest, either ideological (a shared interest in natural law and desire to see a committed social conservative on the Supreme Court) or professional (not catching plagiarism is embarrassing for scholars reviewing others’ research, even when the misused material is unlikely to register as suspicious). More to the point, it’s hard to envision these scholars describing misappropriation by their undergraduates in the words George used to defend Gorsuch:

[Gorsuch] “did not attempt to steal other people’s intellectual property or pass off ideas or arguments taken from other writers as his own….In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn’t even any smoke,”

Surely George must know that standard definitions of plagiarism are wider ranging than what he offers as the definition he uses to clear Gorsuch. The Council of Writing Program Administrators defines plagiarism as resulting “when a writer deliberately uses someone else’s language, ideas, or other original (not common-knowledge) material without acknowledg­ing its source.” And the Modern Language Association defines plagiarism as follows:

“Using another person’s ideas or expressions in your writing without acknowledging the source constitutes plagiarism…. [T]o plagiarize is to give the impression that you wrote or thought something that you in fact borrowed from someone, and to do so is a violation of professional ethics…. Forms of plagiarism include the failure to give appropriate acknowledgment when repeating another’s wording or particularly apt phrase, paraphrasing another’s argument, and presenting another’s line of thinking”

People can reasonably differ on what consequences should arise from Gorsuch’s actions, but if the writings cited in the Politico don’t constitute plagiarism, then lazy or dishonest students across the country will have cause to breathe easier.

What about the defense offered by Abigail Lawlis Kuzma, author of the Indiana Law Journal article at the heart of the controversy? She claims that the copied passages at issue were “factual, not analytical in nature,” and that paraphrasing would have been “awkward and difficult.” But even if you accept the claim that rephrasing a highly technical passage would have been awkward–and there’s evidence that more lay-friendly paraphrases were possible)–why not simply quote the material directly and attribute it to Kuzma, along with the primary sources she used? Instead, we see material used word-for-word or close to it, along with ellipses in the same places in both works. I punish that kind of sloppiness when my undergraduates commit it; shouldn’t the standards be higher for someone aspiring to serve on the nation’s highest court? It appears that they won’t be, but that’s no reason to shrink from a defense of those standards.