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Saturday, April 16, 2011

Courts - "Is 'plagiarism' in a judicial decision wrong?"

Updating yesterday's ILB entry, Prof. Eugene Volokh, in an interesting entry yesterday, first points to this entry by Bill Poser, who cites the British Columbia high court opinion and writes:

I don't have a definite opinion on this, but my inclination is that the court is wrong. Judges, unlike authors of fiction, are not paid to be original. If one party states the facts or the law clearly and accurately, by all means the court should make use of the work that party's attorneys have already done rather than spending time rephrasing it. My understanding is that this is actually a common practice and that indeed it is not uncommon for the parties to submit draft reasons for decision that the judge may adapt if he or she rules their way. An appellate court is still free to consider whether the decision is logical, consonant with the facts and the law, etc. but adopting the wording of one party does not seem to me to be a good sign that the judge has not fairly considered the case.
Volokh titles his own entry "Judge Copies Most of His Decision from a Party’s Briefs — Why Is That Wrong? and writes:
I think that the trial judge’s actions were improper, and that the appellate court was right to reverse it. But the impropriety mostly has to do with matter other than the ones that lead us to condemn plagiarism in, say, scholarly work.

What’s normally wrong about plagiarism is that the plagiarist wrongly gets credit for creative work (by deceiving the reader about the work’s true authorship), and wrongly denies the true author credit that the true author deserves. But this doesn’t really operate in most judicial opinions. Judges rarely get credit for creativity or originality in their work (with a few exceptions for unusually insightful and original opinions, which will almost never arise from simple copying of a party’s biased presentation of the issue). And lawyers rarely seek credit for such work in their briefs (again, with very few exceptions). They seek credit for winning, and if a judge likes their work so much that he copies it wholesale, they are likely to get what they want, and they can also use the judge’s copying to especially impress their clients.

Rather, the problem, as the B.C. Court of Appeal panel majority understood it, is that a judge is supposed to “independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him,” and simply adopting hundreds of paragraphs of a party’s papers casts doubt on that.

Volokh then goes on to develop his argument.

ILB: Judge Richard A. Posner, in his 2007 book, The Little Book of Plagiarism (ILB entry here) says at p. 17: "Concealment is at the heart of plagiarism,' and at p. 19:

A judgment of plagiarism requires that the copying, besides being deceitful in the sense of misleading the intended readers, induce reliance by them.
I think this distinction re plagiarism clearly is followed in the two Indiana cases discussed yesterday, Stevens and Keeney.

Posted by Marcia Oddi on April 16, 2011 12:12 PM
Posted to Courts in general