What You Don’t Know CAN Hurt You: How to Recognize Plagiarism and Avoid Committing It

1. What You Don’t Know CAN Hurt You: How to Recognize Plagiarism and Avoid Committing It By Prof. Brian Porto

2. In this presentation you will learn… • What is plagiarism • How to recognize less obvious forms of plagiarism • The importance of proper citation and acknowledgement • The academic and professional consequences of committing plagiarism

3. Why do you need to read these materials? • You probably heard the word “plagiarism” before. But just because the word is familiar to you doesn’t mean that you understand the multiple forms that plagiarism can take or how to avoid committing it. • The best evidence of this is that plagiarism, usually born of ignorance or uncertainty, continues to be a serious problem in law schools nationwide. • This is one instance in which what you don’t know can hurt you because engaging in plagiarism in law school could cost you the opportunity to graduate or, even if you do graduate, could prevent you from being admitted to the Bar. • Thus, the time you spend reading these materials and pondering the hypothetical scenarios they present could spare you considerable emotional and financial pain in the future. Besides… you need to pass the TEST at the end of the presentation before turning in your first written assignments

4. How do you define plagiarism? • The Vermont Law School Honor Code, Article I.B.1, defines plagiarism as “knowingly appropriating another’s words or ideas and representing them in writing as one’s own.” This Code applies to any aspect of a student’s work and performance in curricular (e.g. courses, experiential programs) or co-curricular (e.g. law review, moot court) endeavors. • VLS definition of plagiarism encompasses not only failing to quote or cite borrowed language, but also failing to cite ideas discovered during research and borrowed for use in your own analysis.

5. Types of Plagiarism The VLS regulations identify three forms of plagiarism: • Word-for-word plagiarism • Paraphrased plagiarism • Idea plagiarism

6. What is word-for-word plagiarism? Word-for-word plagiarism is quoting the exact words of another person without citing the original author or putting the borrowed work in quotation marks. Rule 1: Always acknowledge the direct use of someone else’s words.

7. What is paraphrased plagiarism? • Paraphrased plagiarism is using the words of another, with some changes, but without citing the original work. • The key point here is that changing a few words or rearranging the order of phrases or clauses in the borrowed work does not make that work your own, so you must still cite the source even if you paraphrase. Rule 2: Always acknowledge any paraphrase of someone else’s words.

8. What is plagiarism of ideas? You plagiarize ideas when you use an argument or a theory that is original to another writer and fail to cite that writer. • If you read a law review article and borrow, for your own work, an argument made by the author of that article, do not simply rewrite that argument in your own words without crediting the author. Identify the author and the source article. • If the source article cites cases to support its argument—the one you have borrowed—you should cite the article, rather than just the cases. In other words, cite only sources on which you have relied directly for information. Rule 3: Acknowledge the direct use of someone else’s idea.

9. Three basic rules... • Rule 1: Always acknowledge the direct use of someone else’s words. • Rule 2: Always acknowledge any paraphrase of someone else’s words. • Rule 3: Acknowledge the direct use of someone else’s idea. The three rules stated above apply to both “professional” writing (e.g. memoranda submitted to a superior at work or motions or briefs submitted to a court) and “scholarly” writing (books and law journal articles).

10. …plus Two More Rules for Scholarly Work Two additional rules govern scholarly writing, which you will do if you earn a position with the Vermont Law Review or the Vermont Journal of Environmental Law, or if you write an article for publication or for a writing competition. • Rule 4: In scholarly writing, acknowledge a source when your own analysis or conclusion builds on that source. • Rule 5: In scholarly writing, acknowledge a source when your idea about a particular court opinion came from a source other than the opinion itself. See: Legal Writing Institute, Law School Plagiarism v. Proper Attribution (2003), p. 4. [available at www.lwi.org].

11. Why Plagiarism Happens The temptation to plagiarize usually sprouts from one or more of the following roots: • a desire to be accurate and to avoid misstating the law; • not wanting to take or not having the time to analyze the law fully; • an erroneous belief that courts express the law so much better than you can that you should use the judges’ words instead of your own; and • an equally erroneous belief that the rule derived from a particular case is so technical that if you were to explain it in your own words, you would state the law incorrectly. But the main reason for plagiarizing is…

12. Poor Time Management Most incidents of plagiarism occur because the offending writer has managed time badly, hence feels pressured to use a quick, expedient solution in order to submit an assignment on time. Under these circumstances, the pressure to “copy it from somewhere, anywhere” can be intense. Thus, the keys to avoiding the temptation to plagiarize are to plan ahead and organize your work carefully so that you won’t feel pressure to take short cuts in order to meet a deadline. See: Matthew C. Mirow, Plagiarism: A Workshop for Law Students (LexisNexis 2003).

13. Tips to Avoid Plagiarism I • Take careful notes during research, including citations to information you are likely to use in your work; do not assume that you will have plenty of time to look up cited material when writing your final draft; • When writing your paper, provide citations for words and ideas that are not your own, even when you are unsure of the proper citation form. You may suffer a grade penalty for improper citation form, but you will avoid a plagiarism charge, which is infinitely more unpleasant; • when in doubt, include a citation. In legal writing, it is always best to provide a citation for any proposition that is not your own original idea because citations to authority increase the persuasiveness of your arguments in the eyes of the lawyers and judges who must read them.

14. Tips to Avoid Plagiarism II • Do not confuse “general common knowledge” (e.g. the birth and death dates of famous persons or the generally accepted dates of important historical events) with “common knowledge” in the law, which usually derives from case law (e.g. Brown v. Board of Education, Roe v. Wade, etc.) or statutes (e.g. Title IX, Clean Air Act, etc.) and must be cited. See: Legal Writing Institute, Law School Plagiarism v. Proper Attribution, p. 3. • Remember that in legal writing the only circumstances in which no citations are necessary are when (a) you are stating your own interpretation of a subject instead of that of a court or other authority, or (b) you are explaining how a particular legal rule might apply to novel facts. • Allow yourself sufficient time to review your work for errors and omissions. Do not turn your work in without proofreading.

15. Excuses that DO NOT Work • The following explanations will not be a defense to a plagiarism charge: • “Well, I haven’t read the cases, but they were in the law review footnote.” • “Everyone knows the court said that and not me.” • “I don’t need quotation marks if I use ellipses and brackets.” • “The idea came from the law review article, but I wrote every word of the paper myself.” • “I didn’t know a citation was required.” See: George Washington University Law School, Committee on Academic Integrity, Citing Responsibly: A Guide to Avoiding Plagiarism (Summer 2003).

16. The classic cases on the law of lost and found property are worthless guides for a principled court. Authorities frequently cite Armorie v. Delamirie as the major finder’s case. The case, however, is about the rights of a finder against those of a subsequent possessor who wrongfully converted the property. The court’s brief discussion of the comparative rights of the finder and true owner is dictum. In South Straffordshire Water Company v. Sharman, workers found gold rings on their employer’s property. The court announced a rule accurate as a generality—the owner of a locus in quo presumptively possesses items on the land— when it could have relied on an uncontroversial rule—employees who find things in the course of their employment act as agents of their employers. In reaching its holding, the court entirely misread Bridges v. Hawkesworth, discussion of the law and then ignored it to reach a curious result. The classic cases on the law of lost and found property are worthless guides for a principled court. Authorities frequently cite Armorie v. Delamirie as the major finder’s case. The court’s brief discussion of the comparative rights of the finder and true owner is dictum. The case really is about the rights of a finder against those of a subsequent possessor who wrongfully converted the property. South Staffordshire Water Company v.Sharman concerns workers who found gold rings on their employer’s property. Though the court could have rested its opinion on an uncontroversial rule— employees who, in the course of their employment, find personal property act on behalf of their employers—it chose to rely on a rule that is accurate only as a generality—the owner of a locus in quo presumptively possesses items on the land in question. The court betrayed its lack of understanding by misreading Bridges v. Hawkesworth, another standard case. The court in Hannah v. Peel reached a curious conclusion after offering a thorough discussion of the law and then ignoring it. Exercise: Fictitious Law Review Article: The first passage below is an excerpt from a fictitious law review article. The second passage is a plagiarized version of the first. Read the first two sentences in each version of the article. Question 1: What type of plagiarism is reflected in those sentences in the second version? See Louis Sirico, A Primer on Plagiarism (1988).

17. The classic cases on the law of lost and found property are worthless guides for a principled court. Authorities frequently cite Armorie v. Delamirie as the major finder’s case. The case, however, is about the rights of a finder against those of a subsequent possessor who wrongfully converted the property. The court’s brief discussion of the comparative rights of the finder and true owner is dictum. In South Straffordshire Water Company v. Sharman, workers found gold rings on their employer’s property. The court announced a rule accurate as a generality—the owner of a locus in quo presumptively possesses items on the land— when it could have relied on an uncontroversial rule—employees who find things in the course of their employment act as agents of their employers. In reaching its holding, the court entirely misread Bridges v. Hawkesworth, discussion of the law and then ignored it to reach a curious result. The classic cases on the law of lost and found property are worthless guides for a principled court. Authorities frequently cite Armorie v. Delamirie as the major finder’s case. The court’s brief discussion of the comparative rights of the finder and true owner is dictum. The case really is about the rights of a finder against those of a subsequent possessor who wrongfully converted the property. South Staffordshire Water Company v.Sharman concerns workers who found gold rings on their employer’s property. Though the court could have rested its opinion on an uncontroversial rule— employees who, in the course of their employment, find personal property act on behalf of their employers—it chose to rely on a rule that is accurate only as a generality—the owner of a locus in quo presumptively possesses items on the land in question. The court betrayed its lack of understanding by misreading Bridges v. Hawkesworth, another standard case. The court in Hannah v. Peel reached a curious conclusion after offering a thorough discussion of the law and then ignoring it. Exercise 1: Fictitious Law Review Article: Question 2: Now read the next two sentences in each version. What type of plagiarism exists in those sentences in the second version? Question 3: What other type of plagiarism exists in the second version? See Louis Sirico, A Primer on Plagiarism (1988).

18. Answers to Exercise 1 Question 1: Pretty obvious word-for word plagiarism. Question 2: The next two sentences contain both paraphrased plagiarism and word-for-word plagiarism. The student has simply rearranged the sentences within the paragraph and changed some words. Question 3: Plagiarism of ideas.

19. Example Two: Plagiarism and the Office Memo This example shows how plagiarism can occur in an office memorandum. An office memorandum presents an objective analysis of the state of the law on a particular issue in a given jurisdiction and then, based on the analysis, tries to predict the likelihood of success for one’s client in a pending case featuring that issue. Suppose your case concerns a seller’s duty to inspect products before selling them. While researching, you discover the language of then-Judge Benjamin Cardozo of the New York Court of Appeals. It states: We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests. Question 1: You think to yourself, “I would have written this exactly the same way that Cardozo did.” Or perhaps you think, “I can’t write this any better than Cardozo did.” How can you use his exact words without committing plagiarism? Answer: By putting his words in quotation marks and citing the case in which they appeared. Matthew C. Mirow, Plagiarism: A Workshop for Law Students, published by LexisNexis

20. Example Two: Plagiarism and the Office Memo Question 2: Now suppose that instead of quoting Cardozo verbatim, you write the following: A manufacturer is not released from the responsibility of inspecting just because it purchased the goods from a supplier of good repute. If it is a manufacturer and not just a dealer, it cannot sell its final good without testing the pieces that go into the final good. • If you insert this language into your paper as is, have you committed plagiarism? Yes, because you have borrowed Cardozo’s words and ideas without crediting him. b) Will a proper citation to the Cardozo opinion be sufficient? Some professors or editors will settle for a citation alone, but the wise course would be to begin these sentences with words indicating that the reasoning being discussed is Cardozo’s, not yours (e.g. According to Cardozo, … or “In Cardozo’s view, …). Consider the following…

21. Avoiding Plagiarism in the Office Memo When considering question 2(b remember that plagiarism involves not only borrowing another writer’s language without attribution, but also borrowing another writer’s ideas or argument without attribution. So, to avoid plagiarism in an office memorandum discussing the decision of a court or the reasoning of a particular judge, end each sentence with a proper citation to the case and begin each sentence with words indicating that you have borrowed language from the court’s opinion. For example, The court reasoned that …. Judge Cardozo observed that …. The logic of the court’s reasoning was that …. To paraphrase the court, …. On the other hand, if you merely state in your own words a general proposition derived from cases, without borrowing the language of a previous writer, you need only include a case citation. For example, 1). In New York, a manufacturer must inspect the pieces used to produce the final product for sale. MacPherson v. Buick Motor Company, 111 N.E. 1050, 1055 (N.Y. (1916). 2). The New York Court of Appeals established a further requirement in 1916. Generally, a manufacturer must inspect the parts that make up its goods for sale. MacPherson v. Buick Motor Company, 111 N.E. 1050, 1055 (N.Y. 1916).

22. The Consequences of Plagiarism • Plagiarism in law school can lead to punishments ranging from failure of the course in which the offense occurs to suspension or dismissal from the school. Vermont Law School’s Honor Code (Article I) identifies plagiarism as a Class One Violation, punishable (Article V) by suspension, expulsion, or the withdrawal of an awarded degree. • Plagiarism sanctions are always reported to the Board of Bar Examiners. A plagiarism charge can result in denial of admission to the Bar, even for students whose law schools exonerated them. See Wayne Schiess, Plagiarism: It Follows You After Law School, Legalwriting.net. • To avoid these problems, keep in mind that by enrolling in law school, you have entered the legal profession. Your reputation as a lawyer starts here. Don’t do anything that will prevent the Dean from certifying to the Bar of any state where you have sought admission that you are a person of good moral character

23. Conclusion • Plagiarism is literary theft. Like any theft, it involves taking something that does not belong to you, in this instance, the words or ideas of another writer. • Law school plagiarism often results from ignorance of the rules of proper attribution. • Whatever the source of the plagiarism the penalties for it can be severe; in other words, what you don’t know can hurt you. • So when in doubt, review these materials; if you can’t find the answer here, ask a faculty member for help.

24. VLS’s Plagiarism Awareness Policy • You are required to pass VLS’s plagiarism test, and to acknowledge your awareness of VLS’s policies regarding plagiarism. You will not receive a grade for your written work until you have satisfactorily completed this requirement. • Click here to take the test