Academic Legal Writing - Eugene Volokh [173]
When you copy another person's text, indicate this via the use of quotes (and through providing acknowledgments in the citations). In addition to providing acknowledgments in citations for the concepts you use, you should likewise ensure that the language you use is either written by you, or indicated with quotation marks to identify the copying.
you've likely plagiarized the paragraph, even though you've only literally copied a few words: You've taken so much of the structure and choice of concepts that you're still passing off someone else's writing as your own. Rewrite the sentence instead of paraphrasing—it's more honest, and the result will likely be simpler and better tailored to your claim than a close paraphrase would be. And then of course give credit to the original source, since even the rewrite has drawn from that source's ideas.
So either quote using quotation marks or, if that seems inelegant, rewrite the material in your own words. Then, your words will either be original or properly marked as unoriginal by the quotes; and the idea will be properly attributed by the footnote.
d. Include the proper attribution in the first draft, rather than waiting for the final draft. First, your school may well treat unattributed quotes or excessive paraphrases as plagiarism even in early drafts, not just in final ones; don't take that risk.59 Second, even if the law school rules only cover final drafts, the instructor might view unattributed material in a first draft as an early warning sign of an attempt to plagiarize—and even if you do everything right in the end, you don't want to be graded by someone who suspects your ethics. Third, including the attribution at the outset prevents your forgetting to do it later; and “I was going to properly attribute the material, but I forgot” is rarely a persuasive defense.
e. What you needn't do. You don't have to give people credit in the text; thorough citation in the footnotes is enough to discharge your intellectual debts. What's more, repeatedly saying “Professor X says this, but that's wrong because” can distract from your affirmative point (see Part V.D, p. 68). You need to deal with the counterarguments, but you don't have to make the other commentators the protagonists of your article.
The goal of the text is to convey your ideas to the reader, and the text should be focused on that goal. In legal writing, we can acknowledge our sources in footnotes. There's no need to use the text for that.
f. Other media. Note that these rules apply to academic legal writing, where footnotes are indeed an option. Some have argued that the rules can't be quite the same for works in which footnotes are forbidden or strictly limited (such as op-eds, most magazine articles, or unfootnoted books aimed at laypeople). That's a complex debate; it's clear that some borrowing has to be attributed even in those media, but I suspect the requirements have to be somewhat less demanding. Nonetheless, when you can give credit in footnotes—for instance, when you're writing law review articles, student notes, seminar papers, or write-on competition papers—you have an obligation to do so.
3. Copying from yourself
If you're seeking law school credit for a project, and you're reusing work that you did before, you need to clear this with your instructor. Most law schools will probably not let you reuse substantial parts of a project for which you've already gotten school credit; but they might let you reuse parts of an outside project, if your instructor agrees. Get permission up front.
Also, if you're going to rely heavily in one published work on another of your published works, then you should let your readers know, with a footnote such as “Portions of the discussion in this section are adapted from ....” When law review editors are deciding whether to accept the piece, the footnote warns them that part of the new work isn't novel, and gives them a chance to check how much