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September 09, 2004
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Posted by Donna Wentworth

It doesn't surprise me in the slightest that legendary Harvard law professor Charles Ogletree has admitted to mistakenly "lifting" passages from legendary Yale law professor Jack Balkin's published work.

It isn't because I believe, as the headlines will surely scream, that "plagiarism" is running rampant in the top echelons of Ivy League universities, or that "academic dishonesty" is on the rise. It's that so much academic writing is a product of what I would call collaborative authorship -- that is, researched, drafted, edited, rewritten, edited again, fact-checked, proofread, etc., by more than one person. A research assistant doesn't often get his or her name put on the book cover, but that doesn't change the fact that the work is collaborative.

Professor Ogletree says he read the final copy of the book with quote marks mistakenly deleted from the excerpted passage, but didn't recognize that the words were not his own. Again, no surprise. I certainly don't remember every word I've written over the past few years here at Copyfight, and writing a book often takes quite a bit longer than that. In addition, the editing process can take a piece of writing quite a distance from the original draft, and Professor Ogletree, scanning the six paragraphs quickly under a tight deadline, may have assumed that they were indeed his own -- only modified through the editing process.

Finally, it's likely that Professor Ogletree originally chose to include an excerpt from Professor Balkin's work in his book because it resonated with him. And because of that, the passage may indeed have sounded "familiar"-- the way a really good song sounds like you've heard it before. I find this perfectly understandable.

To be clear, I'm not suggesting that copying passages wholesale and calling it your own is okay. That's unethical. I'm simply pointing out that the fictions we create about authorship -- the solitary author who creates something out of nothing (rather than, say, responding to the work of his peers), who then "owns" his words the way he owns a car -- can lead to unfair judgments in situations like this. All artists are "borrowers" in some sense -- because we only have one world, under one sun, and there isn't anything new under it. There are variations we might call unique, but each of us is drawing from the same well. That's nothing to be ashamed of. Humbled, perhaps, but not ashamed.

If this were Capitol Hill, a PR professional might have advised Professor Ogletree to announce that "mistakes were made," so as to spread responsibility. I would say that "books were written" -- and that spreading responsibility in this instance is the only honest thing to do.

Category: Misc.

Seth Finkelstein on September 9, 2004 06:31 PM writes...

Heck, I'd just call it a QA (quality assurance) error. The issue isn't that these types of books are "collaborative" (which implies some sort of equality in the participants), they're outright assembly-line productions.

To wit: "He marshaled his assistants and parceled out the work and in the process some quotation marks got lost."

It's a product. Bug found. Patch even issued ("Publisher W.W. Norton has pasted in an errata sheet ...").

Ask any grad student how much the head of the lab "authors" in their research papers. The grunt work gets dropped on the peons.

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Donna Wentworth on September 9, 2004 07:28 PM writes...

That was part of my point. Were I in charge of the academic publishing universe, I'd call it collaborative authorship -- because that's what it is, whether or not the names of grad student "production workers" are formally credited.

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Seth Finkelstein on September 9, 2004 07:48 PM writes...

I meant it's even worse than collaboration. The person with their name on the book often isn't even *an* author in a literary sense - he or she is just the brand name!

"Walt Disney presents ..."


(no *specific* implication meant, just a general observation, I'm sure every professor reading this sweats over every word ...)

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Donna Wentworth on September 9, 2004 07:52 PM writes...

Gotcha. Point taken, and I agree that that's often the case. Too often.

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Laura Heymann on September 9, 2004 08:10 PM writes...

A self-interested plug: Those out there thinking about the "author as brand name" and the related disconnect between "creator" and "author," may be interested in my forthcoming piece in the Notre Dame Law Review, "The Birth of the Authornym: Authorship, Pseudonymity, and Trademark Law" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=581821).

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Real Smart Guy on September 9, 2004 11:23 PM writes...

Is it just me, or is this an attempt to excuse plagiarism? I find this rationalization deeply troubling. Maybe students should try that -- maybe the concept of a student "writing his own final exam" is really just a fiction. If all ideas are drawn from other people, isn't the idea of "my exam" versus "your exam" really naive?

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Joseph Pietro Riolo on September 11, 2004 09:58 AM writes...

Very well said (except the part where you said that it is
unethical to copy passages and claiming them as your own -
writers do that all the times, not necessarily word for word
but usually ideas).

Authors and artists would love the common people to believe
in the big myth that they are on the higher plane, that they
have special power to create stories out of nothing, and
therefore that they have godly ownership in their writings
and art.

It is time to recognize that the myth is just that, a myth.
The authors and artists are just ordinary builders - not
creators - where they take different supplies from different
sources and build a house (story) from these supplies.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions
in this comment in the public domain.

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greglas on September 11, 2004 05:42 PM writes...

RSM> Is it just me, or is this an attempt to excuse plagiarism? I find this rationalization deeply troubling.

It's not just you. I agree.

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Donna Wentworth on September 11, 2004 06:53 PM writes...

Greg and RSG - If you have the impression that I'm excusing plagiarism, the fault is in how I expressed my ideas. I meant to make two points:

* I can understand how Professor Ogletree made the mistake he did. I don't deny that it was a mistake. It's simply understandable. Creating a book often takes a village, but our cultural conceptions/myths about authorship obfuscate that fact.

* The line between "yours" and "mine" in the world of ideas is not as clean as those same myths would have us believe.

Jim Swan has an excellent essay on the topic in "The Construction of Authorship," edited by Peter Jaszi and Martha Woodmansee; it's called "Touching Words: Helen Keller, Plagiarism, Authorship." It's online here, in case you're interested: http://www.questia.com/PM.qst?a=o&d=29090595

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Donna Wentworth on September 11, 2004 06:55 PM writes...

Actually, that may be only a snippet...sorry about that.

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Real Smart Guy on September 12, 2004 11:25 PM writes...


I started to write a response to this, but then decided to erase it: If my ideas aren't really mine, and your ideas aren't really yours, then what's the point?


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Donna on September 13, 2004 11:16 AM writes...


I'm sorry - I thought we were here for a polite debate. My mistake.

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Real Smart Guy on September 13, 2004 01:51 PM writes...


My apology if my attempt to be clever came off as impolite. My goal was to suggest that our exchange was proceeding under the premises that you suggest are myths. Sorry if that came off as rude.


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Donna Wentworth on September 14, 2004 11:03 AM writes...


Apology accepted. I've been trying to bridge the chasm in understanding that my original rather blunt piece created, but I'm afraid I've failed. I can only hope that you and other readers trust that I don't aim to excuse plagiarism, even if it's coming across that way.

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James Fischer on September 14, 2004 06:56 PM writes...

History repeats itself.
Likewise, historians repeat each other.

It has been thus forever.

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TrackBack URL: http://www.corante.com/cgi-bin/mt/mt-tb.cgi/4523
Tribe and his kindred from PointOfLaw Forum
So it isn't just celebrated Harvard Law prof Charles Ogletree who uses others' words without proper attribution (see Sept. 14); the roll of shame also turns out to include even more celebrated Harvard Law prof Laurence Tribe, as Joseph Bottum... [Read More]

Tracked on September 26, 2004 10:58 PM





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