When it is plagiarism in a Court decision – the dissent

There is a dissenting opinion to that of the majority, on which I commented earlier.  The dissent is by Justice Maria Lourdes P. A. Sereno, but joined in by Justice Conchita Carpio-Morales.

What can one learn from the dissent by Justice Sereno?

One, that the definition of plagiarism is not etched in stone, and that the Court majority relied heavily on Black’s 8th edition in order to conclude that mens rea is an indispensable element.  In fact, Justice Sereno cites the possibility of “plagiarism through negligence.”  She quotes an authority on judicial plagiarism (Jaime S. Dursht, Judicial Plagiarism:  It May Be Fair Use but Is It Ethical?, 18 CARDOZO L. REV. 1253, at 1), and states:

‘In Dursht’s exhaustive analysis of judicial plagiarism she cites the case of Newman v. Burgin wherein the court said that plagiarism may be done “through negligence or recklessness without intent to deceive.” ‘ [footnotes omitted]

In other words, there is after all such a thing as negligence resulting in plagiarism, or plagiarism through negligence.

Two, she does not find credible the defense, now known in the blogworld as “the Microsoft Word defense,” that the use of computers makes out as excusable negligence the failure to attribute original authorship.  Here, Justice Sereno is quite blunt:

“Contrary to the view of my esteemed colleagues, the [majority opinion on computer errors] is not a fair presentation of what happens in electronically generated writings aided by electronic research.

First, for a decision to make full attribution for lifted passages, one starts with block quote formatting or the “keying-in” of quotation marks at the beginning and at the end of the lifted passages. These keyed-in computer commands are not easily accidentally deleted, but should be deliberately inputted where there is an intention to quote and attribute.

Second, a beginning acknowledgment or similar introduction to a lengthy passage copied verbatim should not be accidentally deleted; it must be deliberately placed.

Third, the above explanation regarding the lines quoted in A.1 in the majority Decision may touch upon what happened in incident A.1, but it does not relate to what happened in incidents B.1 to C.6 of the Tables of Comparison, which are wholesale lifting of excerpts from both the body and the footnotes of the referenced works, without any attribution, specifically to the works of Criddle & Fox-Decent and of Ellis. While mention was made of Tams’s work, no mention was made at all of the works of Criddle & Fox-Decent and of Ellis even though the discussions and analyses in their discursive footnotes were used wholesale.

Fourth, the researcher’s explanation regarding the accidental deletion of 2 footnotes out of 119 does not plausibly account for the extensive amount of text used with little to no modifications from the works of Criddle & Fox-Decent and Ellis. As was presented in Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32 of the Vinuya decision. All these instances of non-attribution cannot be remedied by the reinstatement of 2 footnotes.

Fifth, the mention of Tams in “See Tams, Enforcing Obligations Erga omnes in International Law (2005)” in footnote 69 of the Vinuya decision was not a mere insufficiency in “clarity of writing,” but a case of plagiarism under the rule prohibiting the use of misleading citations.

Sixth, the analogy that was chosen ─ that of a carpenter who discards materials that do not fit into his carpentry work ─ is completely inappropriate. In the scheme of “cutting and pasting” that the researcher did during her work, it is standard practice for the original sources of the downloaded and copied materials to be regarded as integral parts of the excerpts, not extraneous or ill-fitting. A computer-generated document can accommodate as many quotation marks, explanatory notes, citations and attributions as the writer desires and in multiple places.  The limits of most desktop computer drives, even those used in the Supreme Court, are in magnitudes of gigabytes and megabytes, capable of accommodating 200 to 400 books per gigabyte (with each book just consuming roughly 3 to 5 megabytes). The addition of a footnote to the amount of file space taken up by an electronic document is practically negligible. It is not as if the researcher lacked any electronic space; there was simply no attribution.

Seventh, contrary to what is implied in the statement on Microsoft Word’s lack of an alarm and in paragraph 4 of the decretal portion of the majority Decision, no software exists that will automatically type in quotation marks at the beginning and end of a passage that was lifted verbatim; these attribution marks must be made with deliberate effort by the human researcher. Nor can a software program generate the necessary citations without input from the human researcher. Neither is there a built-in software alarm that sounds every time attribution marks or citations are deleted. The best guarantee for works of high intellectual integrity is consistent, ethical practice in the writing habits of court researchers and judges. All lawyers are supposed to be knowledgeable on the standard of ethical practice, if they took their legal research courses in law school and their undergraduate research courses seriously.  This knowledge can be easily picked up and updated by browsing many free online sources on the subject of writing standards.  In addition, available on the market are software programs that can detect some, but not all, similarities in the phraseology of a work-in-progress with those in selected published materials; however, these programs cannot supply the citations on their own. Technology can help diminish instances of plagiarism by allowing supervisors of researchers to make partial audits of their work, but it is still the human writer who must decide to give the proper attribution and act on this decision.”

Three, that it is the dissenting view of Justice Sereno: “That this Court should cause the issuance of a corrected version of the Vinuya decision in the form of a ‘Corrigendum.'” This seems to imply that the majority view considered but rejected the issuance of a corrected version of the Vinuya decision.  If so, the majority view is that it is possible to start out without plagiarizing, because there was no intent to fail to attribute original authorship; but that even when the lack of attribution has been pointed out, that not issuing a correction does not cause the plagiarism as an issue to rear its ugly head.  From the dissenting view, it appears that without the corrigendum, the Court in effect condones plagiarism, since at this point knowledge and admission of failure to attribute have transpired.

Four, Justice Sereno hints (or hopes) that there could be a reconsideration of the decision on the plagiarism case, when she states:

‘Unless reconsidered, this Court would unfortunately be remembered as the Court that made “malicious intent” an indispensable element of plagiarism and that made computer-keying errors an exculpatory fact in charges of plagiarism, without clarifying whether its ruling applies only to situations of judicial decision-making or to other written intellectual activity.  It will also weaken this Court’s disciplinary authority ─ the essence of which proceeds from its moral authority ─ over the bench and bar.  In a real sense, this Court has rendered tenuous its ability to positively educate and influence the future of intellectual and academic discourse.’

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