Originality: Not prized in law

Sta. Ana coordinates Action for Economic Reforms. This piece was published in the July 26, 2010 edition of the BusinessWorld, pages S1/4 to S1/5.

Another uproar has rocked the Supreme Court. The issue: plagiarism.

The plagiarism relates to the decision to dismiss the demands for apology and compensation for 70 Filipino women who became “comfort women” for the Japanese soldiery during World War II. In their motion of appeal, lawyers Harry Roque and Romel Bagares accused Mariano del Castillo, the associate justice who wrote the decision, of copying word for word the works of others, without attribution.

Understandably, for plagiarism is a mortal sin in the academic community, the legal scholars condemned the act.

Not being familiar with the ruling and not being a lawyer, I cannot comment substantively on the case. But I can write about what Richard Posner, the famous judge on the United States Seventh Circuit Court of Appeals, has to say about plagiarism.

What a pity if lawyers, especially, didn’t know Judge Posner. The serious economists follow him because he is an authority on law and economics. And I was surprised to learn that even a young civil engineer—Danny, the husband of my niece Silahis—reads Posner. Danny told me that he appreciates the works of Posner and for that matter the writings of Milton Friedman. Both Posner and Friedman are conservatives, incidentally. Danny’s reason is that Posner and Friedman provide illuminating insights into the relationship of theory, hypothesis and evidence. Such insights are valuable for scholars like him who specialize in applied sciences like engineering.

I also like reading Posner, despite our ideological and political differences. He’s conservative and I’m radical. He’s for order; I sympathize with anarchism. I dislike his legal position on having a market for babies and condoning the use of torture, but I like his view on the legalization of marijuana and LSD. The long and short of it: Posner provokes.

Take his view on plagiarism, and I highly recommend his book titled The Little Book of Plagiarism (Pantheon Books, 2007). It’s literally a “little book,” which can be read in one sitting. The book tackles, inter alia, the ambiguity of the concept of plagiarism, “its historical and cultural relativity, its contested normative significance.”

But let me dwell on just one provocative idea that the book offers, which might also clarify the controversy over the alleged plagiarism that tainted the Supreme Court decision. Posner asserts that “originality is not prized in law.”

To avoid misinterpretation, instead of paraphrasing Posner, I quote his passages word for word (pp.20-22):

“The reader has to care about being deceived about authorial identity in order for the deceit to cross the line to fraud and thus constitute plagiarism. More precisely, he has to care enough that had he known he would have acted differently. There are innumerable intellectual deceits that do little or no harm because they engender little or no reliance. They arouse not even tepid moral indignation, and so they escape the plagiarism label. Most nonlawyers probably think that judges write their own opinions. Only a small minority of us do nowadays; the others edit their law clerks’ opinion drafts to a greater or lesser extent—sometimes so extensively that the judge deserves to be considered a coauthor or even the principal coauthor of the opinion, though not the sole author. Judges or their clerks sometimes insert into their opinions, without attribution, verbatim passages from lawyers’ briefs, and many orders, findings of fact, and other documents signed by judges are actually prepared entirely by the parties’ lawyers, again without attribution. Yet judges sign their opinions and orders as if they were the sole authors, and they refer to one another’s opinions as if written by the judge named as the author. Judges would like people to believe they write their own opinions—which is the element of deceit, for judicial acknowledgment of ghost authorship by law clerks is vanishingly rare.

“Nevertheless the publishing of a law clerk’s draft under the judge’s name is not plagiarism. Very few people who think judges write their own opinions would change their behavior (avoid litigation, oppose a judicial nominee, vote against a judge’s retention, and so forth) if they learned the truth. And the principal readers of judicial opinion are not an ignorant laity, but legal professionals who know that most judicial opinions are largely written by law clerks. Since judges are not permitted to copyright their opinions and so obtain no royalties from them, the financial motive so perspicuous in Viswanathan’s case1 is absent.

“Then too, little value is ascribed to judicial originality—sometimes it is actually disapproved, on the grounds that it tends to destabilize law. Judges do not brag about the number of cases they have overruled, the doctrines they have slain, the doctrines they have created. They would rather be regarded as sound than as original, as appliers of law rather than inventors of it. Judges find it politic to pretend that they are the slaves of the law, never its masters and the competitors of legislators.”

Posner says that “law professors, too, are less than scrupulous about acknowledging the provenance of their ideas, because originality is not much prized by law professors either, though this is changing, as disparagement of intellectual adventurousness on the part of judges is not. It is changing because law professors increasingly identify with other academics, who prize originality, rather than with judges and lawyers.”

Rereading Posner’s book gives me a perspective to better understand the act of Associate Justice del Castillo, the vigorous objection of young law professors like University of the Philippines College of Law Dean Marvic Leonen to del Castillo’s alleged plagiarism, and the Supreme Court defense of a beleaguered colleague (the statement of Court Administrator Midas Marquez).

Perhaps, the concerned parties can invite Judge Posner to the Philippines. We will not only benefit from an elucidation of his views on judicial plagiarism but also from an exposition of his insights—as a judge an academic, and a specialist in law and economics—into many other controversies.

1 Kaavya Viswanathan, then a Harvard student, obtained a two-book contract worth US$500, 000. It was later discovered that she committed plagiarism in writing her first novel. The publisher recalled copies of the novel, and the contract with her was cancelled.

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