Leading - and TEACHING - by Example

One of my biggest pet peeves working with law students is a form of academic dishonesty that is some cases falls short of plagiarism but in some cases definitely goes over the line. At the least, its misleading and misrepresents the students' work. I find a few students each year doing this, either in the papers they're writing for seminars or for the journals, or in the articles the law review and journal staff are sub-citing.

Students can usually find a couple of relevant articles on Westlaw to get themselves started, maybe even a few good books on the subject, but if they find a good discussion or point about an additional case or some other resource - “Source 2” - in an article or book - “Source 1” that they’re reading, they'll often just cite to Source 2 without including an intervening "as cited by" or "as discussed in" citation to Source 1.

It is perfectly acceptable and the Bluebook provides rules for using “as cited by” or “as discussed in”, and if that Source 2 is really obscure or too hard or prohibitively expensive to track down, that’s what you do. But when you DON’T do this and just crib whatever Source 1 said about Source 2 and pass it off as your own research by citing to Source 2 as if you actually found that resource and read it, you’re mis-representing your work. That, to me, is plagiarism, though maybe of a lesser sort than copying an article’s language verbatim and not attributing it.

To make it clear - in case all this “Source 1" and “Source 2" is too confusing - here’s the example I came across recently, with dummy text and citations in place of the real things. This is the case a patron asked me to find:

Frenkel v. Ministry of Corpuscles, No. JK9817-03 (Fred. H.Ct., 1998)

This request came to me by e-mail, and the patron says its unpublished and he’s looked on Westlaw and Lexis and its not there (he had a list of several cases like this he needed). So I poked around and found a few references to it in some law reviews, including this one from the Topschool Journal of International Law:

As the Fredonia High Court said in Frenkel v. Ministry of Corpuscles:

The essence of undulations is that they should be ... a measure of the loss of highhandedness.

Frenkel v. Ministry of Corpuscles, No. JK9817-03 (Fred. H.Ct., 1998) (unpublished opinion), in Jones and Spurious, Law and the Way of the Untoward (2003).

Yes, its unpublished, but it was apparently re-printed in some treatise, which we have, so OK, happy ending - the patron can cite to the case in this book like the Topschool Journal author did.

But, curious about the general availability of Fredonia case law, I googled the case and find several other references to it, including this one:

As the Fredonia High Court said in Frenkel v. Ministry of Corpuscles:

The essence of undulations is that they should be ... a measure of the loss of highhandedness.

Frenkel v. Ministry of Corpuscles, No. JK9817-03 (Fred. H.Ct., 1998).

Wow, that looks familiar. Long story short, the punchline is that this wasn’t a student patron: the list of cases I was asked to find came from a junior professor who busies himself helping to shape the next generation of lawyers and the second cite above, the one I found through google, the one WITHOUT the Jones and Spurious treatise cite, is from SSRN and is his “accepted paper” from a top 50 law school journal that is publishing his article. So he needed me to find these obscure cases because the law review staff is sub-citing his article and needs copies of them, including Frenkel.

But how did our intrepid author find it in the first place if he needs me to get a copy of it? By reading the article by the author who ADMITTED he found the Frenkel case in the Jones and Spurious treatise. But not only has our junior faculty cribbed from Jones and Spurious, he’s blatantly plagiarized the summary of the case from the Topschool law review author, same exact quote, same exact ellipses, etc., etc.

So if the faculty pull this shit, we can’t be surprised that our students plead ignorance about similar stunts.

Now I have to go play diplomat and say “um, maybe you should cite to the law review where YOU found the Frenkel case, or to the treatise where THAT author found it”. I love my job, I love my job, I love my job....