Academic Legal Writing - Eugene Volokh [172]
Scholars condemn plagiarism for two reasons. First, it deceives the reader. When you write as a scholar, you are implicitly vouching for your claims' originality, as well as their accuracy. You expect your reputation—and your grade—to be built partly on your creativity.
Naturally, you're expected to also build on the work of others; but if you don't explicitly give credit when making some important assertion, then you'll be seen as implicitly claiming that you came up with the idea yourself. And if you lead the reader to believe that some words or ideas are yours when they really aren't, you're duping the reader into giving you more credit than you deserve.
Second, it wrongly denies credit to the people whose work you're copying. Just as you're trying to impress your reader with your creativity, so other authors were trying to impress the public with theirs. If you take their words without acknowledgment, you're failing to give them the credit they deserve.
Each of these two points is an independent reason why you must give adequate credit. For instance, paraphrasing without attribution a Supreme Court opinion from 1813 does no great injury to its author. Even borrowing ideas or text from last year's opinions may not much harm the Justices who wrote them; Justices probably care little about getting credit in law review articles. But if you don't give proper credit, you're wronging your readers by misleading them into thinking that your work is original when it really isn't.
This also explains why the rules for legal practice differ from those for scholarly work. “Law,” the old saying goes, “is the only discipline where ‘That's an original idea!’ is a pejorative.” There's nothing wrong with a lawyer's copying language from an earlier brief written by other lawyers at the same firm—the judge expects accuracy, not originality, and the other lawyers know that their work is the firm's to use as it likes. But the rules in scholarly writing are more demanding.
2. Your obligations
What exactly are these more demanding rules? You should check any specific policies that your law school or university might have, but here are some general guidelines:
a. If you use someone else's idea, whether or not you use that source's literal words, give credit for the idea in the footnotes. Acknowledge:
i. any source (law review article, case, or what have you) that you're quoting or paraphrasing;
ii. any source from which you got an idea, even if no one can tell that you got the idea from it;
iii. any source that you know has expressed the idea first, even if you came up with the idea independently (since the academic convention is that people are entitled to credit for being the first to say something).
This is the fair thing to do. It makes your work seem more scholarly, because it shows that you've done your research. And it greatly decreases your chances of being accused of plagiarism.
Don't worry that giving too many people credit will make your work look derivative. First, readers know that even truly original work necessarily rests on some preexisting material. And, second, if proper attribution would show that your work is too derivative, the honest and effective solution is to make your work more original, not to try to hide its lack of originality.
People sometime ask whether it's proper to cite blogs in a law review article. Not only is it proper, but it's mandatory, if your observation was borrowed from someone else's blog post, or even anticipated by a blog post—that's the same rule as when you borrow from a law review article, an op-ed, or even a personal conversation.
b. If you use someone else's words, acknowledge this by using quotation marks (and by giving credit in the footnotes). Besides giving credit in footnotes for the ideas you borrow, you must also make sure that the words you use are either your own, or marked with quotes to indicate the borrowing.
c. Don't use close paraphrases as a way of avoiding direct quotes. Really close paraphrasing