To Plagiarize, or Not to Plagiarize? What’s the Difference? That’s the Question: An Inquiry of Academic Code Violations in the Lawyer Skills Program

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You are a plagiarism detective and you just learned that Shakespeare plagiarized Hamlet. Originally written by Saxo Grammaticus, the story of Amleth (phonetically and hereafter “Omelet”) follows the titular medieval prince as he witnesses the king’s murder and later avenges Fader with some satisfying Danish drama. You dig deeper into Wikipedia and realize that Grammaticus himself may have stolen Omelet from even earlier Scandinavian tales. But either way, the English bard did alter Omelet’s transition to Hamlet – and for the better: nothing dulls a murder mystery more than overlong monologues by breakfast food, right? But as you walk away from your ethical sleuthing, you remember John Marshall’s code of ethics and you realize: “I was forced to read Hamlet a long time ago, but why am I just now hearing about Grammaticus?” And suddenly your investigation expands to your detective contemporaries and you wonder how fictional is Jessica Fletcher’s pulp? The question repeats: did Shakespeare plagiarize Hamlet?

Plagiarism is nothing new to academia, but an email to the John Marshall student body in April 2015 caused a brief stir: a number of students plagiarized in their Lawyering Skills classes.

One of the accused was a Herzog participant who wishes to remain anonymous (hereafter “Participant”). “I was sent an email with a copy of a letter. Half a week later I got the actual hard copy of that letter and the relevant portion of the code of conduct from the student handbook through the actual mail,” Participant explained, who competed in the Spring 2015 semester of Herzog. “It said your brief contains quotations that lack quotation marks in proper attribution,” Participant read from the actual letter, “and then it said this violation of the student code of conductmay include sending a notice to the board of bar examiners.”

Initially, Participant did not know how to respond. “I was angry. Reporting to the bar examiners is not something I would take lightly. At this point, I still had no idea what exactly I had done wrong.”

The Herzog competition ended three weeks prior to the letter in the mail, but students had already been introduced to the school’s policy on plagiarism. “It’s on the Moodle site for each of your LS classes,” says Dean Niedwiecki, who also teaches a Lawyering Skills class. In addition to online, students are also given a code of ethics sheet in LS1. “In the first semester, we’re trying to get students to learn how to read and communicate the law,” he continued. Avoiding plagiarism is one such lesson.

However, the school’s handbook details two forms of plagiarism: ideas and direct quotes. Direct quotes are language taken from the author, but not identified with quotation marks. Ideas, on the other hand, are the author’s thoughts. The handbook mentions that for both types of plagiarism “[i]ntent is not required.” Furthermore, attribution must be made to the author of that quote or idea in the form of an applicable citation.

Participant knew this already, but felt the punishment didn’t fit the alleged crime. “We’re taught how to do citations and things like that,” Participant says, “[but] I’m thinking, ‘you’re calling this mistake a code of conduct violation that I now have to report to the bar? The accusation was a missing quotation mark.” Did the school react appropriately?

“Plagiarism either is or it isn’t,” says Professor Hamann, Director of the Moot Court program. Hamann believes there is a fundamental problem with how some students view plagiarism. “There’s an assumption that plagiarism is one of style. I agree that there is subjectivity in writing, but there is only subjectivity in plagiarism around the edges. If you use five words in a row, is that plagiarism? I would say yes. Maybe somebody else would say six words. Somebody else might say four words.” The student handbook attempts to solidify a general outlook. “Is there some line drawn by the legal writing gods saying where that line is? No, [but] we have to have a rule of thumb somewhere.”

The administration realizes the distinction. “When students cite to a source, but don’t necessarily use quote marks, then that’s a lesson to be learned…that’s different [from intentional plagiarism],” says Niedwiecki, recognizing how much first year law students have to absorb. “There is information overload. I’d rather the students make mistakes at school than make them in practice.”

Participant discovered this distinction the hard way. After meeting with a school administrator, “I was told this was a scare tactic because clearly this wasn’t intentional on my part. This would not be disclosed to the bar.” The professors at John Marshall understand that varying forms of plagiarism, although wrong, should result in varying forms of discipline. “I don’t want to penalize a student for a mistake the same way as someone who did it intentionally,” notes Professor Hamann, “which is why we treat them differently.”

Yet the fact remains that the student body does not have a collective voice on plagiarism. One student’s reaction to unintentional plagiarism is succinct. “Surprise,” said the student, a moot court counsel member wishing to remain anonymous. “Surprise that people are either doing it intentionally or that they don’t realize they’re doing it. That [students] do it and don’t realize it, that’s more surprising to me. I can see the motivation when it’s late at night – I can see a person’s mind going ‘oh, I’ll just put this in here and see how it goes.’ That’s worse, but I can understand it better.”

Ultimately, Dean Niedwiecki wants students to understand what plagiarism is, rather than simply penalize a brief score. “Receiving a note from me and deducting the points was the penalty. Just deducting the points wouldn’t have been enough; students wouldn’t have known [without the note]. In law school, this is part of the writing and learning process,” Niediecki said. “This was a lesson on proper attribution.”

Yet four months later, Participant remains frustrated by the email and its potential future repercussions. “To this day, I don’t know if I should personally disclose [to the bar]. If somehow the school disclosed this to the bar for some reason, I’m screwed essentially.”

Dean Niedwiecki emphasizes that his email was meant to bring awareness, nothing more. “It wasn’t meant to be antagonistic,” he says, “I know it’s scary getting a note from the Associate Dean. If students ever have a question about this, my door [on the second floor of State] is always open.”

Did the April 2015 email clarify plagiarism? Legal writing should be about confidence in your brief, but how is that exacerbated by confusion over plagiarism? Direct quotes? Inadequate paraphrasing? Ideas?

Perhaps the better inquiry into plagiarism is the perceived value of what’s stolen and the agency of the work in which it is shown. In other words: to whom are you catering? Hamlet and Omelet are (intended) to entertain; a legal brief persuades (and rarely entertains). The latter is distinct in that it has instrumental value for its readers; it hopes to achieve something beyond the written product itself. Therefore, the facts are more relevant to the reader being proselytized into making a real-life decision as opposed to the writer merely persuading an audience.

So think of what is important for your reader to know. In the words of the musician/comedian Tom Lehrer: “Let no one else’s work evade your eyes!; Remember why the Good Lord made your eyes!; So don’t shade your eyes!; Plagiarize Plagiarize Plagiarize!” The question is not whether Tom Lehrer would appreciate that attribution, but rather: do you, the reader?

By: Sean Thomas


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