Did Gorsuch Plagiarize? Philosophers & Others Consulted (updated)


Politico has consulted several “experts on academic integrity” to assess whether Supreme Court nominee Neil Gorsuch plagiariazed parts of his book, The Future of Assisted Suicide and Euthanasia, which was a revised version of his D.Phil thesis, as well as an article in the Harvard Journal of Law & Public Policy, while the White House has produced statements from several academics, including a few philosophers, in Gorsuch’s defense.

Politico reports that the opinions of the experts they consulted ranged “from calling it a clear impropriety to mere sloppiness.”

On the harsher side of the assessment:

“Each of the individual incidents constitutes a violation of academic ethics. I’ve never seen a college plagiarism code that this would not be in violation of,” said Rebecca Moore Howard, a Syracuse University professor who has written extensively on the issue.

Elizabeth Berenguer, an associate professor of law at Campbell Law School, said that under legal or academic standards Gorsuch’s similarities to the Indiana Law Journal would be investigated “as a potential violation of our plagiarism policy. It’s similar enough to the original work.”

“I would apply an academic writing standard,” said Berenguer, who teaches plagiarism and legal writing. “Even if it were a legal opinion, it would be plagiarism under either.”…

Howard… said Gorsuch engaged in a practice known as “patchwriting”—essentially patching together words, fact sequences and quotes from another source, but occasionally changing up phrasing and tenses.

In addition to “heavy patchwriting,” Howard said, Gorsuch “hides his sources, which gives the appearance of a very deliberate method. I would certainly call it plagiarism.”

At the other end:

Christopher Sprigman, a New York University law professor involved in building an online standard for citation in legal scholarship, said he did not believe the examples of Gorsuch’s questionable writings reflected “mendacious” acts on the judge’s part.

Gorsuch’s manner in attributing sources is “a choice that you might agree with or disagree with,” Sprigman said. “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 White House brought in academics to dispute the accusations:

The White House provided statements from more than a half-dozen scholars who have worked with Gorsuch or helped oversee the dissertation he wrote at Oxford University that was later turned into his book. They included John Finnis, professor emeritus at Oxford; John Keown of Georgetown University, one of the outside supervisors for Gorsuch’s dissertation; and Robert George of Princeton University, the general editor for Gorsuch’s book publisher.

Politico reports that these experts said that the standards for plagiarism are relevantly different in legal scholarship:

The experts offered by the White House asserted that the criteria for citing work in dissertations on legal philosophy is different than for other types of academia or journalism: While Gorsuch may have borrowed language or facts from others without attribution, they said, he did not misappropriate ideas or arguments.

“Judge Gorsuch did not attempt to steal other people’s intellectual property or pass off ideas or arguments taken from other writers as his own,” said George. “In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn’t even any smoke.”

George seems to be saying that one engages in plagiarism in legal academia only when one passes off as one’s own “ideas or arguments taken from other writers,” presumably in contrast to merely passing off as one’s own the specific words, phrases, and passages written by others. I have to say that I have not heard of this distinctive feature of legal academia before. Perhaps others with more expertise can speak to it?

Below is a textual analysis of one passage of alleged plagiarism, from Politico, in which Gorsuch appears to have reproduced sentences from “The Legislative Response to Infant Doe” (Indiana Law Journal) by Abigail Lawlis Kuzma. The reporters at Politico write that instead of citing Kuzma, Gorsuch cite the same sources that she used: “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.”

There are other examples discussed in the Politico article.

(via Matt McAdam)

UPDATE: Buzzfeed has an article on the plagiarism as well. It partly overlaps with Politico‘s, but contains some other examples and quotes, for example, from John Finnis:

[I]n my opinion, none of the allegations has any substance or justification. In all the instances mentioned, Neil 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 and I work.

UPDATE (April 7, 2017): Les Green, professor of the philosophy of law and part of the law faculty at Oxford University, comments on his blog about the alleged plagiarism. One excerpt:

Unlike scholarly or literary cheaters, the worry about judicial plagiarists is not that they undermine the research process, violate authors’ ‘moral rights’, or steal someone’s intellectual property. Judicial plagiarism is worse than any of these. It undermines the rule of law and the independence of the judiciary. A judge who knowingly or recklessly reproduces words or arguments of others as if they were his own may not be making his own decisions. If discovered, this undermines public confidence that the judiciary can be relied on to think for itself…

This is why we should be concerned by reports of plagiarism on the part of Trump’s nominee to the US Supreme Court.  Judge Neil Gorsuch’s 2006 book, The Future of Assisted Suicide and Euthanasia, has been shown to contain passages and descriptions offered, without citation or acknowledgement, as if they were his own, but which were taken from other authors. That book was in turn based on Gorsuch’s 2004 thesis, submitted for a degree at the law school where I teach. It can only be a matter of time before someone downloads the thesis from the Oxford University Research Archive, to see whether it also contained the passages impugned in the press reports on his book.

If it did, and if Gorsuch were still an Oxford law student, he would be subject to the jurisdiction of University, which unambiguously prohibits plagiarism.  It does not matter whether silently copying others’ work is intentional or not; it does not matter whether it is done with the tolerance of those copied; it does not matter whether the passages copied are central to an argument or peripheral.  At Oxford, as at most other universities, the wrong is in the misrepresentation. It is an offence of academic dishonesty.

Recall that Gorsuch’s thesis advisor, and Green’s colleague, John Finnis, dismissed the concerns. He said:

“[I]n my opinion, none of the allegations has any substance or justification. In all the instances mentioned, Neil 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 and I work.”

To this, Green replies:

[t]his opinion, coming from such an influential scholar, sends the wrong message to young lawyers and scholars.

If by ‘the field of study in which [Gorsuch] and I work,’ Professor Finnis means university research in law or legal philosophy, then his claim is unfounded. Oxford University’s regulations and guidance to students, and years of interpretation of  them by the Proctors and others, put this beyond doubt.   But perhaps Finnis means that lower standards of integrity apply to law books than to law theses? I do not think that is true either; but it is in any case it is the standards of our University that our students need to comply with, now and in the future.

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UKLawStudent
UKLawStudent
4 years ago

The author of the article in question responds here:

“I have reviewed both passages and do not see an issue here, even though the language is similar. 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.”

http://www.nationalreview.com/bench-memos/446427/phony-plagiarism-charges-gorsuch?utm_source=facebook&utm_medium=social&utm_campaign=whelan&utm_content=smear

This was just a description of the facts of a case. There are only so many ways this can be done.Report

Matt McAdam
Matt McAdam
Reply to  UKLawStudent
4 years ago

So this seems to just to endorse the view that Justin offers as a gloss of George’s, namely, that it’s acceptable “to merely passing off as one’s own the specific words, phrases, and passages written by others” so long as one isn’t doing this to advance novel ideas or arguments as one’s own. Are you endorsing this? You think it’s alright for students to do this?Report

TheGarv
TheGarv
Reply to  UKLawStudent
4 years ago

If he really likes that wording, there’s nothing wrong with him using it exactly as he did *as long as he cites the source he got it from*. The issue isn’t that he used someone elses stuff, it’s that he didn’t credit them. This is basic stuff. Report

NPA
NPA
4 years ago

Ha, I wish I’d known legal philosophy had “different standards” when I was writing my dissertation! Seriously, though, that National Review explanation is obvious bullshit. There are many, many ways to present the facts and caselaw, especially when you take into account the order of the phrases, let alone individual word choice, quote choices, and so on. It seems less bad to copy stuff that just sets up your argument, rather than arguments themselves, but I’ve never heard the idea that it’s not plagiarism. Surely the most plausible explanation is that Gorsuch copied the passage from that secondary literature, while removing, replacing, and rewording some stuff to avoid detection. Beyond the copying, in my experience that’s used as a shortcut to avoid going into the primary literature oneself. Report

NPA
NPA
Reply to  NPA
4 years ago

Here’s a section that is identical in each first purple highlight: “surgery to correct esophageal atresia with tracheoesophageal fistula is routinely performed with success”

Here are a bunch of ways to say the same thing:
“surgery to correct esophageal atresia with tracheoesophageal fistula is routinely successful”
“surgery to correct this disorder is routinely performed with success”
“surgery to correct Baby Doe’s disorder is routinely performed with success”
“surgery to correct this kind of esophageal atresia is routinely performed with success”
“the surgery that corrects esophageal atresia with tracheoesophageal fistula is routinely performed with success”
“correcting esophageal atresia with tracheoesophageal fistula requires routine surgery”
“esophageal atresia with tracheoesophageal fistula requires surgery that is routinely successful”
“corrective surgery for esophageal atresia with tracheoesophageal fistula is routinely performed with success”

And, of course, mixing and matching the changes I made in just those examples. The idea that two people would independently summarize this aspect of the disorder with identical (awkward!) language is incredible.
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Matt
4 years ago

Leaving aside the merits of the particular case, I’ll second that the claim that, “the criteria for citing work in dissertations on legal philosophy is different than for other types of academia or journalism.”, as said by Robert George, is nonsense. (The only sense in which it might be true is that legal philosophers are more likely to follow the law review standards of obsessive over-citation, not that they’d under-cite.) Now, it is true that judicial opinions often make use of sections of writing written by others and don’t give citations for it – this is perhaps especially so when, say, and opinion makes use of a description of the facts found in a brief for the case and stipulated to be correct by the parties. But, that has no implications at all for scholarship, especially not for legal philosophy. If George is being quoted accurately here, he’s really blowing smoke. Report

Jon
Jon
4 years ago

Does anyone have access to his footnotes? He has one after nearly every controversial sentence, so I wonder what they say. Is he just source-cribbing from Kuzma? Or does he cite to her anywhere?Report

Iain
Iain
4 years ago

Profs George and Finnis are doing a disservice to philosophy and philosophy of law in particular. They are giving cover to future plagiarists. They must both know that what they are saying is false, but I suppose each has an interest (beyond advancing their religious and political goals) in saying it: each of them failed to detect this plagiarism when it happened, Finnis in the DPhil thesis and George in the book. They don’t seem to realize that while it looks bad to have missed plagiarism that it was your job to catch, it looks much worse to spout obvious self-serving untruths in order to avoid facing up to your mistake.Report

Arthur Greeves
Arthur Greeves
4 years ago

I was very well disposed toward Judge Gorsuch until this revelation. Now I feel sick to my stomach. I would fail a freshman in a 100-level class for less than this.Report

Alex Guerrero
4 years ago

As further evidence that Finnis and George are wrong, consider how much flack Harvard law professors Charles Ogletree and Laurence Tribe got for their very similar instances of plagiarism (“misusing of sources”). They weren’t fired, but it was clear they violated serious academic norms and were called out for doing so.

And now Supreme Court Justice (then Harvard Law School dean) Elena Kagan called out Ogletree quite dramatically. Might be awkward…

https://mobile.nytimes.com/2004/11/24/nyregion/when-plagiarisms-shadow-falls-on-admired-scholars.htmlReport

F. Zossima
F. Zossima
4 years ago

As a meta-commentary on this situation, do occasions such as this provide any opportunity for us to reflect on what citation standards themselves are supposed to accomplish, apart from whether or not some breach of the standards themselves has occurred? If the substance of Gorsuch’s positions in these matters isn’t enough to disqualify him, indignant protest from academics who, with lordly dignity, intone that _their_ students would surely fail if they committed such an outrage, hardly will. We can (and do) bemoan lapses in these standards ad nauseum, but can we convince the public we educate that they are really necessary, at least as presently construed?Report

Arthur Greeves
Arthur Greeves
Reply to  F. Zossima
4 years ago

You’re asking why a person shouldn’t receive compensation (whether monetary or in degree form) for filling pages of their allegedly original work with regurgitated words written by another person? You’re saying that reasonable people do not understand why this is wrong? That’s a sad meta-commentary.Report

Hank
Hank
Reply to  Arthur Greeves
4 years ago

I don’t take my meta-commentary to be asking anything of the sort, although I can understand why someone might misunderstand my point. Spend any time in epistemology and you’ll find the notion of originality that these standards practically deify is dubious at best, and, as has been pointed out here, there are only so many different ways that the same point can be made in the same language. Gorsuch simply didn’t do anything like fill his writing with “regurgitated words written by another person.” At worst, he failed to satisfy the intuitions some group of philosophers have about what separates legitimate paraphrasing from illegitimate paraphrasing (i.e., one form of plagiarism) Theft of an idea is indeed a problem, but these standards leave a hazy boundary between the legitimate and the illegitimate, and then unleash the avenging furies upon those who misstep.

You seem puzzled that reasonable people could find the rules governing plagiarism in any way part of this problem. That’s a sad state of affairs, indeed. Report

Arthur Greeves
Arthur Greeves
Reply to  Hank
4 years ago

Legitimate paraphrasing cites the original author. Gorsuch did not do that. Did you overlook that part of the story? If so, I can completely understand your view, and I would agree that it makes little sense to nitpick about how closely phrased a paraphrase is to the original.Report

Philp Kremer
Philp Kremer
4 years ago

Logic papers, and math papers more generally, often contain routine statements of theorems and definitions without citation. I’ve seen Zorn’s lemma stated without a citation to Zorn, indeed without any citation at all. I wouldn’t be disturbed to discover that two papers had identical statements of Zorn’s lemma, without either citing the other. There are certainly more statements of Zorn’s lemma in the literature than there are reasonable ways of stating it. Maybe somebody’s plagiarizing someobody, but it’s plagiarism lite, at worst. For a couple of extreme examples, if someone writes, “Tallahassee is the capital of the U.S. state of Florida” or “Grover Cleveland was born on March 18, 1837, in Caldwell, New Jersey”, do they have to cite Wikipedia? More generally, it seems that bland statements of well-known or easily-checkable facts maybe should be allowed to fly under the plagiarism radar.

(Note: this is in no way an endorsement of the current Supreme Court nominee.)Report

Philip Kremer
Philip Kremer
Reply to  Philp Kremer
4 years ago

A clarification: my proposal about bland statements of well-known or easily-checkable facts should only stand, I think, for single statements. For anything as long as what appears in Gorsuch’s book, an attribution to the direct source is called for. Perhaps, “the following presentation of the basic facts is from [source], with some minor alterations.”
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Alistair Welchman
Reply to  Philp Kremer
4 years ago

It’s not plagiarism to use ‘common knowledge’ without citing a source (see for instance http://isites.harvard.edu/icb/icb.do?keyword=k70847&pageid=icb.page342055). Standards for what counts as common knowledge are probably discipline specific and may well cover your Zorn’s lemma example.

What Gorsuch did (my autocorrect just changed his name to ‘Grouch’) probably doesn’t fit the common knowledge exception. Easily checked facts may not be common knowledge, and when they’re not, there isn’t an exception for them, although perhaps there should be.

Still, as the Harvard guidelines suggest, the asymmetry of costs make Gorsuch’s behavior hard to justify. He clearly did read the article he lifted material from, and did not cite it. It would have cost little to cite, and that cost seems a reasonable measure of how much he cared about getting this right i.e. not very much.

I’ve heard the term ‘thru-citation’ used to describe this practice (and haha I can’t remember exactly where so I can’t cite! Sorry source!) and it is likely motivated by the desire to make it appear that one has read the (more) primary sources cited by the secondary source when that is not the case. Report

John Mashey
Reply to  Alistair Welchman
4 years ago

See Gorsuch (2004, 2006) From Kuzma(1984) – Classic Copy-Paste-Edit In Color http://m.huffpost.com/us/entry/us_58ec4669e4b0145a227cb7f9
The primary source was sealed in 1982; 82% of Gorsuch’s section was copied in-order, identically from Kuzma … but the edits were even more instructive… and perhaps disturbing. Report

Oliver Traldi
Oliver Traldi
4 years ago

An interesting post on the issue by Leslie Green (Oxford). https://ljmgreen.com/2017/04/06/on-judicial-plagiarism/Report

Aaron
Aaron
4 years ago

I agree that Zorn’s lemma, Cantor’s theorem, Loewenheim-Skolem etc are usually common knowledge for those writing about them. I would expect some citation, even something like: See BBJ, 1988, pp.x-y from a lower level undergrad or in a paper targeted at a general audience though. Also, these theorems have the names of their discoverers right out front.

In Gorsuch’s case though, fairly uncommon medical knowledge, and knowledge of specific medical case studies can’t possibly count as common in the legal community..Report

docfe
docfe
4 years ago

You will never find a more liberal than me, but this reminds me of the charges by right-wingers and racists brought against Martin Luther King, that he had plagiarized his dissertation, writings of various sorts, etc. I think we who have not read the articles and writings in question need to be philosophically skeptical. I wish Garland were the new justice, but I am a little inclined to think this is sour grapes and a smear tactic. And, ultimately unproductive.

Think of other renowned authors who have fallen victim to plagiarism charges for ‘sloppiness’ or whatever: Doris Kearns Godwin, for example.

BTW, snide comments such as “my spell check changed Gorsuch to ‘grouch'” indicate more about your spell check than reality.Report

John Mashey
4 years ago

See http://m.huffpost.com/us/entry/us_58ec4669e4b0145a227cb7f9 for a different text display evolved over years.
82% of Gorsuch’s Baby Doe (sic) section were copied exactly, in-order from Kuzma… and the edits are even more instructive.Report