Boling on What Is "The Rule"? Quotation Marks and the Role of Courts and Lawyers as Performers of the Common Law

Kathryn Boling, Seattle University School of Law, is publishing What Is 'The Rule'? Quotation Marks And The Role Of Courts And Lawyers As Performers Of The Common Law in volume 64 of the Duquesne Law Review. Here is the abstract.

Must lawyers and judges use quotation marks when they recite legal rules verbatim from a cited source in their legal practice documents? It is a question that lawyering skills faculty hear often when training first-year students to enter the legal writing genre. The advice of many is to use quotation marks to avoid plagiarism, but that advice arises from a conflation of academic and legal writing and a small number of inapplicable cases in which courts have issued reprimands (or worse) to attorneys caught copying large portions of other sources without sufficient "attribution." This Article, therefore, undertakes a rigorous defense of the verbatim recitation of a rule from a cited source without quotation marks in legal practice documents. As this Article shows through a multidisciplinary exploration of linguistics, professional ethics, speech act theory, and neuroscience, that choice is legitimate and often desirable. What is often forgotten about legal rules (particularly in the common law) is that it is the day-to-day recitations of rules by lawyers and judges in the handling of cases that perpetuate the rules from the past into the present and thereby keep them in force for use in the future. Through an application of J.L. Austin's speech act theory to this activity, the Article explains why the social offense of plagiarism is not applicable, distinguishing the genre of academic writing from legal practice writing in multiple respects. It also explains how, with fear of plagiarism out of the picture, a legal practitioner in certain circumstances can harness rhetorical benefits from reciting a verbatim rule from an authoritative (and cited) source in their own written "voice," without quotation marks. By preserving the wording verbatim, the practitioner ensures the integrity of the rules themselves and enjoys a sense of belonging from verifying a communal understanding of the common law. Moreover, doing so through indirect quotation (i.e., without quotation marks) conveys the concepts with more ease for the reader, more seriousness by the writer, and more efficiency than direct quotation can.

Download the article from SSRN at the link.

Stajnphiler on Plagiarism and Power Relations in Legal Academia and Legal Education @IISJOnati

Tilen Stajnphiler, University of Ljubljana, is publishing On Plagiarism and Power Relations in Legal Academia and Legal Education in volume 7, no. 8, of Oñati Socio-Legal Series (2017). Here is the abstract.

English Abstract: The article challenges the misconception that legal academia is a harmonious community without internal discrepancies, characterised by common interests, a coherent set of values and standards of behaviour that are unilaterally transposed into the legal profession through the process of legal education. The paper focuses on a case study of a public dispute between two law professors initiated by an article published in one of the main national law magazines wherein one accused the other of plagiarism. Even though the dispute did not come to an unequivocal conclusion, it deserves a closer examination as it clearly exposed two important issues. Firstly, it revealed certain unresolved issues concerning legal writing and legal ethics that are essential elements of the legal profession, as they have a profound impact on legal education and legal practice, and, secondly, it showed that these divergences are at least to some extent related to the latent network of power relations and struggles that dominate the legal (academic) field.

Spanish Abstract: Este artículo cuestiona la creencia de que el mundo jurídico-académico es una comunidad armoniosa sin discrepancias internas, caracterizada por intereses comunes, valores coherentes y parámetros de comportamiento que se transponen de forma unilateral al ejercicio de la profesión jurídica a través de la educación en Derecho. El artículo se centra en el estudio de una disputa entre dos profesores de Derecho, en la cual uno acusaba al otro de plagio. A pesar de que la disputa no se resolvió de forma clara, merece un análisis más cuidadoso, ya que puso de manifiesto dos temas importantes: en primer lugar, algunos conflictos sin resolver sobre la escritura y la ética del derecho que son elementos esenciales de la profesión jurídica, pues tienen un profundo impacto sobre la educación y la práctica del Derecho; y, en segundo lugar, que estos desacuerdos están relacionados con las redes latentes de poder que dominan el campo jurídico-académico.

Download the article from SSRN at the link. 

We Were Told There'd Be Cake @plagiarismtoday @dorfonlaw

Diane Klein, University of La Verne College of Law, discusses the interesting Case of the Copycat Cake here (from Plagiarism Today, cross-posted from Dorf on Law). Oh, there are intellectual property and business law issues, but there's also popular culture--lots of things to chew on. Sweet. 

Plagiarism on "Criminal Minds"

Plagiarism Today discusses the issue of plagiarism as it appears in pop culture on "The Gathering," an episode of the series Criminal Minds. Read the post here. 

Jonathan Bailey @plagiarismtoday on Plagiarism and Popular Culture

Jonathan Bailey maintains and writes for the site Plagiarism Today. Here are some of his posts concerning Plagiarism and Pop Culture. While copyright infringement and plagiarism aren't the same thing, they implicate some of the same issues.

Plagiarism is an ethical issue. It involves using someone else's work and claiming it as your own. You can avoid a plagiarism accusation by acknowledging another's work by giving an appropriate citation. However, that doesn't mean you've avoided a copyright infringement problem.

Copyright infringement is a legal issue If you cannot claim the protection of fair use or some other defense, simply properly acknowledging the source doesn't mean you haven't also infringed someone's copyright. You might still need to get a license to use that person's material, for example (or some other kind of permission; copyright might not be the only IP involved).

Mr. Bailey's posts are a lot of fun to read, and give us things to chew on.

A Charles Dickens Exhibit

Care for a little Dickens with your December? The British Library has mounted a new exhibit, A Hankering After Ghosts: Charles Dickens and and the Supernatural, which features, in addition to materials from "A Christmas Carol" (we have to see those), a letter from Dickens to his wife Catherine (marital flap), and documentation of his views on spiritualism (he had his doubts). More on the exhibit, Dickens, ghosts, general spookiness, and whether the writer might just have gotten his idea for one ghost story from another author from the Guardian.

"Sampling" Legal Writing? Hip Hop and Legal Ethics

Kim D. Chanbonpin, The John Marshall Law School, is publishing Legal Writing, the Remix: Plagiarism and Hip Hop Ethics in the Mercer Law Review (forthcoming). Here is the abstract.

In this Article, I focus on hip hop music and culture as an access point to teach first-year law students about the academic and professional pitfalls of plagiarism. Hip hop provides a good model for comparison because most of our entering students are immersed in a popular culture that is saturated with allusions to hip hop. As a point of reference for incoming law students, hip hop possesses a valuable currency as it represents something real, experienced, and relatable.



Significant parallels exist between the cultures of U.S. legal writing and hip hop, although attempting direct analogies would be absurd. Chief among these similarities is the reliance of both cultures on an archive of knowledge, borrowing from which authors or artists build credibility and authority. Whether it is from case law or musical recordings, the necessary dependence on a finite store of information means that the past work of others will be frequently incorporated into new work. The ethical and professional danger inherent in this type of production is that one who borrows too freely from the past may be merely copying instead of interpreting or innovating. In the academic world, this is plagiarism. Members of the hip hop community call this “biting.” In neither culture is this mode of production celebrated.



My goals for this project are two-fold. First, as a professor of legal writing, I want to ameliorate the problem of plagiarism that I have seen growing worse each year. Second, as a scholar, I would like to contribute to the growing body of literature on hip hop and the law. This Article marks the beginning of my attempt to theorize a hip hop ethics and develop its application to the teaching, the academic study, and perhaps eventually, the reform of the law.

Download the article from SSRN at the link.