Today headlines screamed—do mark the journalists and news organizations, for they exemplify Prof. Glenn Reynold’s jibe, “Democratic operatives with bylines”—that Supreme Court nominee Neil Gorsuch had committed plagiarism in four passages of his 2006 book “The Future of Assisted Suicide and Euthanasia,” which was based on his 2004 Oxford dissertation, before he became a judge.
That’s a stretch, and more than that, making this a major new story now indicates bias.
In the most egregious of the passages cited, Gorsuch included a description of the famous “Infant Doe” case that tracks closely with the description in a 1984 law-review article by Abigail Lawlis Kuzma. Both versions primarily quote from the court opinion: Kuzma’s article tracks equally closely to the original opinion, a 1982 Indiana court ruling that was later sealed, a pediatrics textbook, “Rudolph’s Pediatrics,” and a 1983 article in the Bloomington Sunday Herald. Gorsuch cited all of these, but did not cite Kuzma’s article.
He should have. That’s a citation error, but probably not plagiarism. Several the sentences in the book and the article are identical or close to it, and Gorsuch should have used quotation marks. However none of the sentences involved anything but factual and technical descriptions. For example,the article states that “Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus,” and Gorsuch wrote, “Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.”
Now, if I were writing about esophageal atresia, about which I know nothing, in the course of an analysis of a larger issue, I would probably re-phrase that passage, perhaps writing, “When the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus, this is the condition called esophageal atresia with tracheoesophageal fistula.” I haven’t added anything original, though. There are no new thoughts or content. My re-phrasing would just dodge the accusation of plagiarism. When I wrote my thesis, which involved reviewing multiple biographies of every U.S. President, it was not uncommon for me to find paragraphs in the earliest materials that were worked over and re-phrased again and again, with no quotes but citations.
The National Review, a conservative publication, so its position will be discounted as biased and partisan, tracked down Kuzma, who waved off the plagiarism charges:
“These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the “Baby/Infant Doe” case that occurred in 1982. Given that these passages both describe the basic facts of the case, it would have been awkward and difficult for Judge Gorsuch to have used different language.”
Weeell, that’s laying it on a bit thick. Gorsuch certainly could have done a more academically acceptable job of re-stating the substance of what she wrote; it’s not THAT “awkward and difficult.”
Georgetown University Law Center professor John Keown, who was one of the outside examiners of Gorsuch’s Oxford dissertation, called the allegations of plagiarism “unsubstantiated” and praises the book as “meticulous in its citation of primary sources,” adding that “The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is very wide of the mark.” The National Review also quotes Dr. Chris Mammen, a fellow student of Gorsuch’s at Oxford, who said that the “standard practice in a dissertation is to cite the underlying original source, not a secondary source, that supports a factual statement.” Oxford professor emeritus John Finnis supervised Gorsuch’s dissertation. After reviewing the recent charges, he concluded that “none of the allegations has any substance or justification” and that Gorsuch’s “writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he was working.”
Again, that seems excessively generous. The passage about the Baby Doe case that Gorsuch obviously substantially duplicated from the law review article was more than 350 words long. Yes, the original author substantially cut and pasted it from three primary sources, and Gorsuch cited them, but I would not be surprised to see a student that did what Goruch did be accused of plagiarism, or at least sloppy scholarship. This is the gray area of plagiarism, especially now, in the age of the internet. Many authorities do not regard it as plagiarism when a repeated sentence or largely duplicated passage doesn’t involve misappropriation of anyone’s ideas, theories, or creative expressions. (I just used “misappropriation of anyone’s ideas, theories, or creative expressions” from Ed Whelan’s article about the incident. Am I obligated to credit Ed? Opinions differ.)
Oxford’s academic guidance for plagiarism would, strictly interpreted, suggest plagiarism. “Paraphrasing the work of others by altering a few words and changing their order, or by closely following the structure of their argument, is plagiarism if you do not give due acknowledgement to the author whose work you are using,” it says.
New York University law professor Christopher Sprigman is building an online standard for citation in legal scholarship. In response to Politico’s inquiry, he said he did not believe the passages in Gorsuch’s book reflected “mendacious” acts on the judge’s part, saying that Gorsuch’s rephrasing and choices in attributing sources were practices “you might agree with or disagree with…It’s a little bit risky, but I wouldn’t say it rises to the level of a bad act. I think some people would say it’s sloppy.”
The fact is that this academic practices dispute involving a 13-year-old dissertation and a 33-year-old law review article has nothing to do with Gorsuch’s qualifications as a judge. At least when Democrats were trying to smear Clarence Thomas in a last-ditch, 11th hour attack, they found a complicit partisan foe with a grudge who alleged a violation of sexual harassment law (though it wasn’t one when it allegedly occurred.). Gorsuch’s poor citation practices and border-line plagiarism might be a problem if he were being considered for president of a university (though maybe not Harvard Law School, where at least two prominent faculty stars were caught engaging in serious, way over-the border plagiarism), but it’s an irrelevant episode to his Supreme Court credentials.
UPDATE: I haven’t yet checked what law professor/blogger Ann Althouse has written on this controversy; she’s my favorite non-ideological contrarian objective analysist. Let’s see…
The words in question are stating the facts of a legal case — medical details. I have a feeling lawyers, law professors, and judges take shortcuts lifting this sort of detail from legal cases and briefs all the time. We’re not seeing Gorsuch lifting any distinctive ideas from the author and not giving her credit. It’s material about, for example, what “esophageal atresia with tracheosophageal fistula” means, and Gorsuch, like the other author, cited a 1982 Indiana court ruling — which we can’t look at now because it’s sealed — a pediatrics textbook titled “Rudolph’s Pediatrics,” and an article that appeared in the Bloomington Sunday Herald in 1983.
Should I have put the words after “cited” in quotes? I copied and pasted “A 1982 Indiana court ruling that was later sealed, a well-known pediatrics textbook, ‘Rudolph’s Pediatrics,’ and a 1983 article in the Bloomington Sunday Herald.” And I changed the words a little.
Yeah, that’s about what I expected.
Sources: National Review, Politico, Fox News, BuzzFeed, Washington Post, Bloomberg, New York Magazine, Occupy Democrats, The Daily Caller, The Atlantic, Washington Free Beacon, New York Daily News, Talking Points Memo, New York Times, TheBlaze, ThinkProgress, Mediaite, NBC News, Lawyers, Business Insider