Plagiarism: a threat to lawyers' integrity?

Plagiarism: a threat to lawyers’ integrity?

Duncan Webb
Professor of Law, University of Canterbury, Christchurch, New Zealand
duncan.webb@canterbury.ac.nz

Originality and conformity exist in an uneasy tension in legal practice. While the developed West places considerable value on originality the much older tradition of the law values deference to precedent and established articulations of legal concepts. The words and ideas which follow are, in a large part, not my own. Responding to the natural scholarly and legal instinct I have looked extensively at what others have had to say on the topic of plagiarism and the legal profession. These thoughts have therefore been stolen largely from others. I have, of course tried to hide this by tweaking ideas here and there, altering the expression, and chopping and changing the order in which things are presented. Perhaps in doing so I will manage to create something new, insightful and original; probably not.

The word plagiarism invokes copying of an invidious sort. It connotes dishonesty and it is on this basis that it is considered a threat to integrity. I will attempt to limit the use of the word plagiarism to those cases where integrity is in issue and use neutral terms to refer to other copying. This article has four main points. First, not all copying is bad, I will explore when copying is to be encouraged and when it is to be discouraged. The second point is that some copying is harmful and that it is the harm that should be focussed on in determining whether to label something plagiarism and therefore prohibit it. Thirdly, we need to be cautious in imposing values from the academic world onto the world of legal practice. Finally, plagiarism as a concept is part of the dominant moral and cultural framework (at least in the Anglo-American society); we need, however, to be aware that it is not a universal concept and consider the issue of plagiarism accordingly.

I intend to address this issue from the perspective of what, if any, harm copying causes. Where harm occurs a response is required. Where there is some intentional wrongdoing causing harm a punitive response may be appropriate which marks out the conduct as both an academic and moral transgression. However, even if the copying is not invidious and there is no dishonest intent, if harm flows it may be appropriate to mark it out as unacceptable and impose some sanction. Conversely, where copying gives real benefits and there is no loss or harm to any party it should not be seen as inappropriate. It should be permitted, and quite arguably encouraged. In fact this frequently happens in the law and elsewhere.

Copying in legal practice

Law, of all disciplines, relies on what went before for legitimacy, authority and quality. It would be both foolish and reckless for a lawyer to fail to rely on his or her predecessors before writing anything. Certainly the preparation of legal documents in most practices proceeds largely from a library of ‘precedents’ – pre-existing documents from which parts are lifted to lesser or greater degrees. Some law firms have developed precedent libraries of their own; others choose to subscribe to commercially available services. Of course a third possibility is to lift particularly elegant or effective clauses from the documents of others that might come to one’s attention and use them in your own documents later on.1

In litigation copying is equally important. At least in common law jurisdictions it is procedurally important to frame an action carefully and one way of ensuring that a claim is legally sound is to use a formulation which has been proven successful. In the United States it appears that some firms have begun seeking to protect the expression of their claims by asserting copyright in documents filed in court.2  This paper is not about copyright; however, there are conceptual hurdles to asserting copyright in the articulation of a legal principle.3

In presenting legal argument most lawyers will have recourse to either previous decisions of the courts, frequently lifting whole sections of a judge’s words to lend weight to a particular point either with or without attribution.4  The words of scholars are also sometimes given weight, depending on reputation. Some encyclopaedic works are given particular authority. In England this place is given to Halsbury’s Laws of England which is widely considered authoritative. A lawyer can do little better that to frame an argument or claim to fit with the articulation of the law in Halsbury’s. While in many cases the very purpose of the citation is to claim the authority of the author, this is not always the case. Frequently commentary or dicta of lesser standing will be adopted by legal authors, largely without attribution.

A further point is that in legal practice notional authorship of works is claimed in many cases by those who did not in fact write the words in question. In most law firms of any size, contracts are drafted and letters written which go out under the signature of the partner of the law firm who is leading the project. In many cases the work itself will have been ‘ghost written’ by a more junior employee who gets no attribution (except perhaps at a later date when errors become apparent).

The converse point is that originality in the law is viewed with scepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy.

The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often centre round the way in which obligations have been expressed in legal documents and how the facts of the real world fit the meaning of the words in which the obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge will often be sought in articulations that have been tried and tested. In a sense therefore the community of lawyers have together contributed to this body of knowledge, language, and expression which is common property and may be utilised, developed and bettered by anyone.

The common law also has a long tradition of copying. In early times any cause of action placed before the courts had to fit within the language of closely specified ‘writs’.5  A failure to fit an action within the boundaries of an established writ would result in a failure of the case regardless of its merit. Indeed strict adherence to established formulations was so rigid that as the law developed large parts of the pleas became mere formalities in some cases bearing little relation to the actual causes of action. This tradition of recognised formulations of legal concepts remains.

Lawyers give deference to authority and necessarily so. Where, by law or convention a particular statement is considered to have legal force lawyers take note of it. The common law system also has a sophisticated (or arcane) framework in which the decisions of various courts and parts of their judgments are considered more or less persuasive. This depends on the status of the court, the reputation of the judge, whether the statement was necessary to the decision (ratio decidendi) or merely an aside (obiter dicta), and whether the court is in the same or a cognate jurisdiction. The effect of such a system is that lawyers in the common law are acculturated to looking at, rely on, and adopting the words of those more senior (ie, judges) in determining the law.

Plagiarism

Plagiarism is bad. To attach the label plagiarism is to mark it out as some kind of dishonest or illegitimate copying. If we are referring to copying of a non-invidious kind we could refer to it as a reproduction or adaptation of the original work. When then is it appropriate to say that some copying amounts to plagiarism?

It would be possible to engage in an etymological analysis of the word. We could note that its origins are generally considered to be traceable to the Latin plagiarius – a kidnapper or thief. Its usage appears to have entered the English language in the 1600s.6  Coincidentally, this was also at a time of considerable growth in literature as the full effects of the printing press, secular universities, and a growing mercantile class were becoming apparent.7 Discussions of the history of the idea of plagiarism tend to identify its growth at about this time in the literary community, the members of which had a considerable interest in emphasising their own (sometimes doubtful) originality and protecting their work against appropriation by others. This was a matter of considerable importance given the absence of legal protections for authors against copying.8 It is worth noting that what is acceptable copying and adaptation contrasted with what is unacceptable plagiarism has shifted considerably over time. It may be that the definitional boundaries of plagiarism are under more pressure at the present time given the rapid technological change making the appropriation of expression easier.9

The underlying wrong of plagiarism appears to be the unauthorised appropriation of work by the plagiarist and the representation of the work as the result of the creativity of the plagiarist. Plagiarism is quite distinct in this regard from breach of copyright which is a blanket prohibition on certain reproductions whether attributed or not. Plagiarism is at heart reproduction without attribution.

Reproduction may, however, occur without large verbatim tracts reappearing in the new text. While such unattributed reproduction would be considered plagiarism, in many cases the appropriation is more subtle that this. Often the merits of a particular work encompass the general way in which it is expressed and the organisation of the relevant ideas. Plagiarism would exist where these things remained intact even though the words might not be the same.10  When paraphrasing becomes the work of the new author and stops being plagiarism is however very difficult to say.

Underlying all of the discussions and definional wrangling about plagiarism is the element of dishonesty. It is on this basis that plagiarism is often referred to as theft or stealing of the work of another.11  The standard response of a plagiarist is to deny intention and claim that the transcription was due to confusion, disorganised note taking, or an unconscious assimilation of the words of the earlier author into the expression of the work. Such a response is effectively pleading guilty to the lesser offence of bad scholarship but claiming that the dishonest intent necessary for outright plagiarism is absent.

This element of dishonesty which underlies plagiarism has a number of effects. At a pragmatic level it makes it difficult to detect with certainty. In only the most egregious cases can we be certain of the level of intent to make the necessary finding of dishonest intent. Secondly it gives plagiarism moral colour. In fact plagiarism is little at all if not a moral concept. It has no real standing in law and is generally considered to belong to a loose collection of values that might be called scholarly ethics. This means that where plagiarism occurs a moral response can be made. It is only on this basis that the scorn, disapprobation and ostracism that are visited on plagiarists is justifiable.

The original evil which led to the growth of the concept of plagiarism was appropriation of one author’s creative works by another. The prohibition on plagiarism was in essence an assertion of a property right in the original work. The alleged harm was that the original author is both deprived of the income from the secondary work and deprived of the reputational gains which flow from being identified as the author. This latter right (recognised in modern copyright law as moral rights or droit d'auteur) is arguably of more importance in some fields, including academia where the financial rewards of publishing pale next to the importance of reputation.

In the modern age, however, plagiarism has had other threads added. In universities the chief identified harm is the certification of students who appear to have mastered material which they simply have not. Plagiarism by a student is a specie of fraud on their examiner or teacher. In passing off the work of another as their own they are laying claim to the skills and knowledge being tested that they may not have.

In some cases a general reader of a published work may also be aggrieved. Readers had a right to know the author of the work and to read the original, not some knock-off work by a mere copier. Thus if a book, or significant parts of it, are simply reproductions of earlier works the reader is being tricked. Arguably, however, this harm is small. Putting the law of copyright to one side (the copied work may be out of copyright) there appears to be little harm to the reader of a work who is unaware that a work is not entirely the product of the claimed author.

The benefits of copying

It perhaps bears pausing to note that copying can be good. There are numerous instances where considerable benefits are to be obtained from the use of the work of another. Probably the most obvious is legal practice is the fact that enormous savings in time (and therefore, for the client, money) can be made by using the work of others that have gone before. Where the document in question is a deed, contract, or other legal document authorship is of less importance that the credentials of the firm within which the authors works. In fact originality in such works is viewed with a degree of suspicion and refuge is sought in the security of tried and true legal formulations. Similarly the author of the original work within a law firm does not expect to be credited with authorship.

Of course copying of this kind is rarely verbatim. In most cases a legal document will be an amalgam of one or more precedents and additions and alterations by the latest author. In this sense the final document might be seen as the culmination of the work of others. The other benefit of copying is that the work and expression that has gone before is not wasted or ignored. There is a certain perversity in seeking to reformulate the work of others in a vain (and even arrogant) attempt to express the same ideas in an original manner. Of course it may be that the latest author is gifted indeed and is able to improve the expression of the earlier work. However, it may be counter productive to require the latest author to abandon the merits of the existing work and reformulate it in its entirety. There may be enormous gains to be made by adapting and polishing the existing work, rather than starting from the beginning again. It is not hard to imagine that the combined work of two gifted authors will be better than that of one.

The interests protected

My argument has been that copying is not per se objectionable. This, however, should not be taken as the whole story. There are some dangers and objections to copying. These might perhaps be divided by the identity of the interests harmed.

Most obvious (but arguably least important) are those of the original author. In academic work reputation is more or less everything. However, there is little tangible harm to an academic author in commonplace plagiarism. Certainly when a student plagiarises an academic work there is no meaningful harm to the author. In contrast plagiarism of one academic by another is more serious in that there may be an appropriation of the ideas and expression of one academic by another who is passing it of as his or her own. In a sense this is the inverse of defamation. Rather than words being used to damage reputation, the absence of attribution fails to enhance the reputation of the author in the way they are entitled and the plagiarist claims the reputational benefit properly attributable to the original author.

This kind of plagiarism is probably considered the most egregious. One reason which has been suggested to explain this is the fact that in such a case the plagiarism is by a competitor. Where the plagiarism is by a person ‘lower’ in the intellectual hierarchy the credit denied (or wrongly claimed) is of little significance. Where the plagiarism is by a person higher in the hierarchy than the author (eg, an academic plagiarising a student or law partner plagiarising a law clerk) the institution often has structures permitting this (such as the ‘research assistant’ framework or employment relationship). However where the author and plagiarist are in competition the wrong tends to be considered serious.12

However, plagiarism by academics may be relatively rare for two reasons. Firstly there is a high likelihood that such plagiarism will be detected by peers who intimately know the body of work from which the words were plagiarised. Secondly the consequences of being detected are, for an academic, catastrophic. Because reputation is everything it is only the most pressured and desperate academic who will risk all by plagiarising. Having said that there are of course many examples of academics who have done exactly that.

In legal practice the harm to authors whose work is appropriated is also of doubtful significance. Authors of legal documents do not generally have a particular interest in being identified as the author of a work. Moreover, if the interest is more than reputational then the law of copyright should suffice. Indeed in legal practice in most countries it is accepted practice to take verbatim tracts from various legal precedents, or to sign correspondence or pleadings which have been substantially completed by others. There is no expectation that actual authorship will be noted on the original work, let alone attributed when the work or part of it is appropriated. In light of this there appears to be little harm to the original author when this kind of copying occurs.

The other main party who might be considered harmed by copying is the reader / consumer of the work in question. This might particularly be the case where the reputation of the author is important. The more obvious wrong is to pass off the work of a person without a reputation as that of someone whose work is highly respected (ie, a forgery). However, there is also a risk that a person with an established reputation will pass off work as their own when in fact it is that of a less-esteemed person. Whether it was copied surreptitiously or is simply that of an employee or research assistant the wrong to the reader is arguably the same. The words are not those of the purported author and any reliance on them may be misplaced. Of course where it is well known that the ‘author’ is only certifying the work and did not write it him or her self then little or no harm exists. It is only where the reader is under some reasonable misapprehension as to the actual authorship that complaint can be made.

The position is different in where the wrongdoer is a university student. There the harm caused by plagiarism is twofold. In the first instance a fundamental task in students submitting work is to determine whether the material has been mastered by the student. Where the paper has either been written by another person, or large tracts of it have been lifted from the work of others and passed off as that of the submitting student this purpose of assessment is defeated. If the student were to plagiarise throughout his or her degree there would be a real risk that the credential conferred by the institution would not accurately reflect the student’s accomplishments.

The second harm in an academic context is more systemic. If there is a widespread sense that students are plagiarising work there is a risk that the credentials conferred as a whole will not be trusted. Plagiarism, if endemic, might debase the currency of the academic institutions that suffer from it. It is arguably this fact that justifies a stiff response by universities.

Plagiarism, integrity and lawyers

It is perhaps worth noting that none of these harms depend upon any intentionality by the plagiarising author. Many definitions or framings of plagiarism require a dishonest element and certainly there is a sense that plagiarism is a moral wrong.13  There is therefore a separate strand of the discussion of plagiarism that looks to the interior moral life of the plagiarist and condemns in proportion to the state of mind. The perennial problem for academics is how to draw the line between poor referencing and sloppy work and outright dishonest appropriation of the work of another. There is in fact no way to be sure as to the intention of the plagiarist in such a case and the result is a reluctance to find plagiarism in any but the most egregious cases.

There are, however, those who reject the importance of intention as an element of plagiarism and consider the wrong more consequence based.14  If we strip the concept of its moral obloquy there is a strong argument that where harm occurs it ought to be responded to, albeit in a less penal manner. Failing to attribute through sloppy practice or ignorance of proper professional or academic conduct is less problematic than intentionally appropriating the work of another. However it remains necessary to provide a strong disincentive to such conduct. While any response need not set the conduct out as morally reprehensible, there are good reasons to ensure that a deterrent to both the plagiarist and others who might consider such lapses is provided.

The discussion of intentionality elides into a discussion of integrity. In seeking to mark out plagiarism as invidious the language of integrity is appropriated. Many institutions set out inappropriate copying as a breach of ‘academic integrity’ or ‘academic honesty’. For lawyers the use of this language triggers wider concerns. Lawyers are perennially concerned with the integrity of members of their profession and as such there is an issue of whether plagiarism committed at law school is relevant to the trustworthiness of a lawyer who is later admitted to the bar. Corbin and Carter15  note that Australian courts16 have certainly taken this into account (as well as citing US authority17) and make a case that a more stringent approach should be taken.

The argument made by Corbin and Carter is essentially intuitive. They argue that students who plagiarise at law school have shown themselves to be morally wanting and therefore not ‘fit and proper persons’ for admission. The assumption is that plagiarism shows a flaw in character and that offenders are more likely to misconduct themselves in legal practice and as such admission should be refused or deferred. There are a number of threads to this argument that bear scrutiny. The first is the implicit assertion that a student who plagiarises is likely to misconduct him or her self in practice. There is, understandably, no evidence to confirm this assertion. Rather it is based on the assumption that if a person acts dishonestly as a student they will act dishonestly as a lawyer.

In fact there is scholarship that suggests that there is very little predictive value in misconduct in an entirely different context.18  While a considerable departure from the traditional analysis of the ‘fit and proper’ test of admission to the bar, there is a strong argument that it is only where conduct is both repeated and in contextually similar situations that have predictive value for future behaviour. Where the wrongdoing is isolated or in an entirely different situational framework, little can be said about how this will reflect future conduct.

A second and perhaps more contentious point is that caution must be exercised in prohibiting non-invidious conduct. The law, probably more than any other discipline, requires the appropriation and development of what went before. There is a moderately fine line between polished legal analysis, and a patchwork of ideas that a clumsily drawn from others.19  There is a danger that academics place an emphasis on plagiarism which is more zealous than that found elsewhere. In the academic community there is a strong ‘norm of attribution’.20  It is obviously a matter of concern if a student knows the rules and dishonestly breaches them. However, there is a real risk that the breach, even if intentional, is made against an entirely different values framework than that of the offended academic.

At a more practical level, the fact is that as students and lawyers develop their own skills and expertise the need to rely on the articulations of others recedes. As skills of analysis improve the apparent originality of a work increases. There is therefore a danger, in particular, of imposing expectations on students that are unrealistic. Even with attribution we cannot expect unique and insightful articulation of complex legal questions from individuals still struggling to master the techniques and content of the law.

A clash of cultures

At the heart of the debate on plagiarism in the law and legal practice may be the fact that there is a tension between cultures. Legal education is largely dominated by the universities and has been for some time. Excluding others for claiming credit for original ideas and expression is essential to the maintenance of an academic’s professional reputation. Similarly, plagiarism among students, if widespread, can undermine in significant ways the credential conferring capability of the institution. It is therefore not surprising that the most significant push for protection of ideas through sanctions on plagiarism comes from the university.

The legal profession has only the most attenuated understanding of the concept of plagiarism at least as regards the work carried on within legal practice. It is commonplace to appropriate the ideas and expressions of another and little is thought of it. While, as discussed above, there is a suggestion that the law of copyright may have some application, by and large the expression of legal concepts, arguments, and obligations has been approached as common property. In general it is acceptable to appropriate the words and ideas of another. Because this is part of the way in which the legal profession works, there is no suggestion that the end product is the sole work of the final author. The fact that it is an amalgam of texts, cases, the precedents of other lawyers, and the gloss of the final author goes without saying.

There is also the suggestion that the main function of the movement against plagiarism is to protect and exclude.21  Discussions of plagiarism are often framed around concepts of theft and illegitimate appropriation. These are essentially property concepts and their use lays claim to legitimacy in excluding others from freely adopting and using the ideas, at least as expressed. In this sense the original authors and the community to which they belong are asserting ownership of the ideas and the wider discourse around them.22

It might also be observed that a rigorous approach to plagiarism which requires assiduous attribution and referencing is placing the bar to writing publication and recognition in the academic community particularly high. Individuals who do not clutter their work with footnotes and bibliographies can be criticised as dishonest or sloppy and therefore not part of the academic elite. Such a view is subject to challenge in the modern world where many authors of highly useful works eschew attribution in favour of the concept of ‘collective commons’ which explicitly recognises the ability to build on what has gone before.

However, in a real sense a thoroughgoing doctrine of plagiarism acts to mark out those who are authors from those who are mere users; those who are owners from those who are appropriators. It has been observed that while stringent anti-plagiarism rules appear to promote individuality and originality, they are in another sense reinforcing strong institutional standards and demanding compliance with significant constraints on expression.23  In this sense the rules reinforce and validate the existing knowledge institutions and holders, admitting as new members only those who recognise it.24 

This point is emphasised by the fact that appropriation of work in commonplace in many contexts, but usually within established power frameworks. This has been referred to as institutionalised plagiarism.25  It may well be that the heated debate around the issue of plagiarism in recent times is engendered partly because of the risk that those who have been the authors and owners now face in a largely digitised world.

Some post-modern commentators challenge the legitimacy of the concept of original authorship and therefore traditional notions of plagiarism. It is argued to be untenable to suggest that any authors work is more than a gloss on the work of others. Original individual authorship is, it is asserted, a modernist myth which denies the connectedness of all language with the expression and ideas of the community to which the speaker/author belongs. There is a good argument that such a cultural claim to originality and individual authorship is simply arrogant and reflects and academic obsession with textual ownership.26  Some discussion therefore prefers to frame the discussion of the use of the ideas and words of others as an issue of intertexuality.27

That is to say that every text has within it other texts, and contains numerous strands which are drawn together with varying skill. This is a recognition that all writing involves the appropriation of the work of others and transforms it into the writer’s voice. The more confident the writer, the more likely that the voice will be distinct. Thus some have suggested that what is really occurring is ‘patch writing’ in which numerous texts are brought together in ways which vary in their originality.28

I have already noted that plagiarism is little if not a moral concept. However, this leads us into a conundrum. Unless we are moral absolutists and traditional natural lawyers we are troubled by the assertion that there are legitimate communities which have existed, and still exist, in which the appropriation, assimilation and addition of the words of another is not only not prohibited, but a legitimate and proper part of the intellectual community. It may be that between the ages of romanticism and post-modernism this view was on the wane. However in the post-modern world in which language and ideas are subject to the destabilising influence of digitisation, a return to such values appears inevitable.

Perhaps this article can be closed with an unapologetically appropriated and adapted quote:29

'One of the surest tests of skill is the way in which a lawyer borrows. Immature lawyers imitate; mature lawyers steal; bad lawyers deface what they take, and good lawyers make it into something better, or at least something different.'

1 See for a discussion L Lerman ‘Misattribution in Legal Scholarship: Plagiarism, Ghost-writing and Authorship’ (2001) 42 South Texas Law Review 467, 469-70.

2 Massachusetts State Carpenters Pension Fund v Kindred Healthcare, No 3:2002cv00600 (WD Ky filed 16 October 2002).

3 See D H Isaacs ‘The Highest Form of Flattery? Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents’ (2006)

71 Missouri Law Review 391; S Birch ‘Copyright Protection for Attorney Work Product: Practical and Ethical problems’, 10 J Intell Prop L 255 (2003), L Wang ‘The Copyrightability of Legal Complaints’, 45 BCL Rev 705 (2004).

4 Conversely judges will take from advocates who appear before them large tracts of their argument which may appear in judgements without attribution.

5 Statute of Westminster II 1285 c 24.

6 The now archaic verb plagiary is recorded by the Oxford English Dictionary as having been used as long ago as 1602, by Ben Jonson in Poetaster IV iii 96 ‘Why? the Ditt' is all borrowed; 'tis Horaces: hang him Plagiary’.

7 T Mallon Stolen Words: Forays into the Origins and Ravages of Plagiarism (Ticknor & Fields, 1989)

8 The first statute based protection for authors in the English speaking world was Copyright Act 1709 8 Anne c 19.

9 For a useful and practical analysis of what amounts to plagiarism see I Hexham Academic Plagiarism Defined www.ucalgary.ca/~hexham/study/plag.html, last accessed 6 March 2009.

10 See eg, the American Historical Association notes in its Statements on Standards of Professional Conduct  that:

'Plagiarism includes more subtle abuses than simply expropriating the exact wording of another author without attribution. Plagiarism can also include the limited borrowing, without sufficient attribution, of another person’ distinctive and significant research findings or interpretations.'

11  See eg, S Green ‘Plagiarism, norms and the limits of theft law: some observations on the use of criminal sanctions in enforcing intellectual property rights’ (2002) 54 Hastings Law Journal 167.

12  B Martin Plagiarism: a misplaced emphasis (1994) 3 Journal of Information Ethics 36.

13  See eg, L Corbin and J Carter ‘Is Plagiarism Indicative of Prospective Legal Practice’ (2007) 17 Legal Educ Rev 53, 54, also A Jowitt ‘The Impact of Plagiarism on Admission to the Bar: Re Liveri [2006] QCA 152’ (2007) Journal of South Pacific Law 213.

14 See, eg, R Bills ‘Plagiarism in Law School: Close Resemblance of the Worst Kind?’ (1990) 31 Santa Clara L R 103.

15 L Corbin and J Carter ‘Is Plagiarism Indicative of Prospective Legal Practice’ (2007) 17 Legal Educ Rev 53, 54.

16 Re Humzy-Hancock [2007] QSC 34; Law Society of Tasmania v Richardson [2003] TASSC 9; Re Liveri [2006] QCA 152; Re AJG [2004] QCA 88 Compare Pou v Waikato Bay of Plenty District Law Society (High Court, Rotorua CIV 2004-463-0511, 9 May 2005, Baragwanath and Courtney JJ).

17 Napolitano v Princeton University Trustees 453 A2d263 (1983); Re Lamberis 433 NE 2d 549, 500 (1982)

18 Alice Woolley, ‘Tending the Bar: The “Good Character” Requirement for Law Society Admission’ (2007) 30 Dal L J 27; Gilbert Harman ‘Moral Philosophy meets Social Psychology: Virtue Ethics and the Fundamental Attribution Error’, Proceedings of the Aristotelian Society, 99 (1999): 315-31.

19 R Howard ‘The New Abolitionism comes to Plagiarism’ in L Buranen & A Roy (eds) Perspectives on plagiarism and intellectual property in a postmodern world (Albany, New York, State University of New York Press, 1999).

20 See eg, S Green ‘Plagiarism, norms and the limits of theft law: some observations on the use of criminal sanctions in enforcing intellectual property rights’ (2002) 54 Hastings Law Journal 167, 174.

21 S Angelil Carter Stolen Language? Plagiarism in Writing (Essex, United Kingdom, Pearson Education 2000).

22 M Randall Pragmatic Plagiarism: Authorship, Profit & Power (Toronto Canada, University of Toronto Press, 2001) 60. See also P Freire Pedagogy of the Oppressed (New York, Seabury, 1968).

23 R Scollon ‘Plagiarism and ideology: Identity in cultural discourse’ (1995) 24 Language in Society 1.

24 M Randall ‘Appropriate (d) discourse: Plagiarism and decolonisation’ 22 New Literary History (1991) 525; C Thompson ‘Authority is Everything: A Study of the Politics of Textual Ownership and Knowledge in the Formation of Student Writer Identities’ (2005) 1 International Journal of Educational Integrity 1.

25 B Martin ‘Plagiarism: a misplaced emphasis’ (1994) 3 Journal of Information Ethics 36.

26 A Pennycook ‘Borrowing other’s words: Text ownership, memory and plagiarism’ (1996) 30 TESOL Quarterly 201.

27 R Chandrasoma et al ‘Beyond Plagiarism: Transgressive and Non-transgressive intertextuality’ (2004) 3 Journal of Language Identity and Education 171.

28 R Moore Howard Standing in the Shadow of Giants: Plagiarists Authors Collaborators (Stanford Ablex publishing, 1999).

29 Adulterated from Diverse in Interest T S Eliot, ‘Philip Massinger’, The Sacred Wood Essays on Poetry and Criticism.  New York: Bartleby.com, 2000 (first published 1922).