How Prevalent is Plagiarism of Unpublished Decisions?

After the situation with the professor who was cribbing the summaries and quoted language from unpublished opinions without seeing the actual opinions or citing the sources in which he read the summaries and quoted language (see earlier post), I got to thinking about this. It is, of course, possible that an author might come across a reference to an unpublished opinion, track it down somehow, read it, summarize it, cite it, and include it in whatever article you’re working on, but I would bet anything that what happens more often is that an author reads an article or book that does a good enough job of summarizing the unpublished opinion and the author doesn’t bother to track down the opinion, but just cribs the summary and quoted language without citing to the original source where they found the discussion of the unpublished opinion that they’re stealing.

So I was curious if I could find an example of this, just by searching for articles that quote language from unpublished opinions. Turned up at least one so far, in a unrelated bit of work where I noticed the following discussion of an unpublished decision.

In this student note from the Michigan Law Review:

Jennifer L. White, When It's OK to Sell the Monet: A Trustee-Fiduciary-Duty Framework for Analyzing the Deaccessioning of Art to Meet Museum Operating Expenses, 94 Mich. L. Rev. 1041 (1996)

There’s a discussion of several unpublished cases at footnote 23:

23 There have been relatively few court cases dealing with deaccessioning. Judges tend to give one-time orders that do not provide insight into their decisionmaking processes and, as a result, offer no direction for future applicability. See, e.g. [...] Hammond Museum, Inc. v. Harshbarger, No. 92E- 0067-G1 (P. & Fam. Ct. Essex County, Mass. Oct. 5, 1992) (issuing no opinion, only a judgment stating that the museum was authorized to make the sale, to use the proceeds to pay off a bank loan, and, “if residual funds are available, to preserve the remaining artifacts of the museum and purchase similar ones, and do repairs, maintenance, and to make necessary improvements on the museum's real estate insofar as any of these are necessary to keep the museum open and functioning”)

(Emphasis added.)

So this student at law school in Michigan quoted language from a four-year-old unpublished Massachusetts county court decision. Did she actually get a copy of the case? Possible, but not likely. But poke around for the quote and you’ll find this:

Elaine L. Johnston, Deaccessioning to Raise Operating Funds: Recent Cases, in Legal Problems of Museum Administration, American Law Institute - American Bar Association Continuing Legal Education ALI-ABA Course of Study March 24, 1993

Which says, at 173:

The Massachusetts Attorney General consented to the Hammond's proposed deaccessioning, and the Court granted the Museum's request for approval. The Court did not issue a written opinion, but stated in its Judgement that the Museum was authorized to sell the designated artifacts and to use the proceeds from the sale to pay off the bank loan and, “if residual funds are available, to preserve the remaining artifacts of the museum and purchase similar ones, and do repairs, maintenance, and to make necessary improvements on the museum's real estate insofar as any of these are necessary to keep the museum open and functioning”.

So the Michigan law student “quotes” the exact same language as the CLE author. Coincidence? Not likely. Lazy student dancing way too close to the line between sloppy research and plagiarism? Very likely.

Also, the student’s summary of the case that precedes the quoted text:

[I]ssuing no opinion, only a judgment stating that the museum was authorized to make the sale, to use the proceeds to pay off a bank loan [...]

Is only a slight re-working of the CLE author’s summary:

The Court did not issue a written opinion, but stated in its Judgement that the Museum was authorized to sell the designated artifacts and to use the proceeds from the sale to pay off the bank loan [...]

This is what I see our students do fairly regularly when they ask me to find some obscure document or case and it turns out they’ve already used it in some paper, but only read ABOUT it in some other resource but now need the original thing because a faculty member, or one of the journal editors, wants some other detail for the citation or something that the intermediary source where the student found the document or case did not contain.
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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....

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September 2009 Netflix Report

September 2009 Netflix Summary	Arrived at Home	Received at Netflix	Days at Home	Monthly Average Days at Home	Cost Per Movie
Trouble the Water	09/03	9/11	8
Duplicity	09/04	10/05	31
12 Rounds	09/08	9/12	4
Sunshine Cleaning	09/12	09/19	7
Stop-Loss	09/14	09/30	16
Lookin' to Get Out	09/20	09/29	9
Charade	09/30	10/17	17
				13.1	$2.65

Back working full-time now for the Fall semester, so only seven movies this month, and it sure took me a hell of a long time to get around to watching Charade. That's the classic movie this month that I have seen parts of several times, but never watched start to finish. Most of the rest of this month's movies were recent releases I'd missed. Duplicity was very good but suffered at the end from the one-twist-too-many/my-aren't-we-clever-filmmakers syndrome. Sunshine Cleaning was very good with characters and situations that played very real for the most part, with only a few scenes played a bit too much for laughs.

Trouble the Water is one of the best Katrina documentaries that I've seen so far. I was hoping it would be better than Spike Lee's When the Levees Broke, but after the home movie footage of the Ninth Ward flooding in Trouble the Water, the evacuation story of the protags begins to play out as too much of a "look at me" cry for attention. So despite its flaws, When the Levees Broke is still the definitive cinematic statement about Katrina, at least of the ones I've seen - a few still haven't seen wide release.

But Stop-Loss, on the other hand, I think is the best movie about the Iraq war so far. I haven't seen them all, but they've generally gotten lousy reviews and one of the one I did see - whatever that one where Jessica Biel loses her hand in an IED explosion - was pretty wooden and sterile except for Sameul Jackson's story line upon returning to the states. But Stop-Loss had real heart to it and all the character and the situations they're in played very real.
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