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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