by Yasmin Sokkar Harker, Student Liaison Librarian, CUNY School of Law &
Benjamin J. Keele, Research and Instructional Services Librarian, Indiana University Robert H. McKinney School of Law
Introduction
On occasion, we have been contacted by law review journal editors who think an author may have committed “self-plagiarism” by reusing language or ideas from the author’s previously published works. This post is a first step in developing guidance for librarians to give law review editors with questions about self-plagiarism.
Self-plagiarism describes several different behaviors by authors.[1] First, authors take one study and then make many different publications from it. Second, authors submit the same work to different publications without disclosure. Third, authors, reuse substantial portions of text or ideas from past work, with or without (usually without) disclosure or attribution.
Here we wish to discuss only the third behavior. We also wish to use a different term, text recycling. “Self-plagiarism” is too pejorative and connotes stealing from oneself.[2] The real problem with reusing one’s previously published work is not taking one’s own words or ideas, but that the reuse breaks some trust with the publishing law review and readers. We prefer calling this reuse “text recycling” because it is more precise and less morally loaded.
Originality in Legal Practice and Academia
To help law review editors think through their approaches to text recycling, we should consider what the expectations are about originality in legal academia and in legal practice. In legal practice, it is reasonable to recycle text, including your own. Attorneys use boilerplate language in contracts, wills, and other standard legal documents. Lawyers and judges recycle text from previous work to include in their briefs and opinions. This behavior is often encouraged for the sake of efficiency. For attorneys, the value of their legal writing lies in its function as a legal instrument, or in its persuasiveness, not in its originality.[3] For the judiciary, grounded in stare decisis, the value of their writing is to explain the decisions of the court in the context of precedent.[4] Again, originality is not the point.
Legal scholarship differs from practical legal writing in that its originality is crucial to its value. Its purpose is to document the evolution of the law, comment on and criticize the status quo, offer new insights, and advocate for change.[5] Unlike other academic fields, student editors are the primary gatekeepers and distributors of legal scholarship. Publishers of science journals have debated text recycling and developed some guidance,[6] but we have not found analogous guidance for law reviews. Let us look at the interests of law review editors, authors, and readers to gain further insight into whether (or if) text recycling is appropriate in legal scholarship.
Interests of Editors
Law review editors aim to publish original work that provides new insights into the law and how it is applied. If the author has written on the topic previously, the editors would presumably want the newer work to demonstrate additions, progress, or new understandings from earlier scholarship. Thus, for editors, the major concern with text recycling is deceit or misrepresentation surrounding the originality of the text. It would be unfair for a law review to publish a piece, and later find that the piece had largely been published elsewhere. If the text is properly cited, editors are able to assess whether the writing has originality that is distinct from earlier work. Policies on text recycling should take into account the law review editors’ need to assess the work and prevent authors from misrepresenting the originality of the work.
Interests of Authors
Authors often work on a body of scholarship, building on earlier work to generate new insights. Thus, authors have an interest in being free to use their earlier work, and not being compelled to recreate the wheel.[7] Policies on text recycling should acknowledge an author’s right to build a body of scholarship and should not require rewriting or paraphrasing oneself solely to avoid recycling text when appropriate disclosure is feasible.
Interests of Readers
Like editors, readers have an interest in trusting that what they are reading is original work. This is particularly true for those reviewing the scholarship for tenure or promotion purposes. Thus, for readers, there is a concern about misrepresentation about the originality of the work. Policies on text recycling should take into account the readers’ interest in the originality of the work.
Taking into account the interests of these stakeholders, we offer this language as a starting point for developing a law review policy on text recycling. We favor permitting reuse of text and arguments from previously published works with proper disclosure to law review editors and citation for readers. A text recycling policy could be incorporated into submission guidelines, publication agreements (most agreements contain a general warrant by the author that the article is original and does not infringement anyone’s copyright), or presented as a standalone document.
Text Recycling Policy
Authors should disclose substantive reuse of text from previously published works upon submission. If published, reused text should be properly cited in a mutually agreeable manner. Options for citation include in-text references, footnotes, or disclosures at the beginning or end of the article.
Reuse of ideas and arguments from previously published works should be acknowledged through in-text references or footnotes if they are a crucial part of the article’s thesis; otherwise, they need not be specially disclosed.
The Journal will regard [indicate percentage of text or other standard] of reused text as not sufficiently original for purposes of selecting articles for publication.
Failure to disclose reuse of substantial portions of text or reuse of arguments that are crucial parts of the article’s thesis is adequate reason for the Journal to decline to publish an article or to rescind an offer to publish.
Conclusion
Some authors understandably prefer not to rearticulate every background section and argument in different papers on the same topic, and editors understandably want to ensure their journals are publishing original scholarship. We think this suggest policy language accommodates theses interests and offers editors (and librarians that advise them) a good starting point for discussion.
What do you think? We welcome comments on this policy language and the issue of text recycling at yasmin.harker@law.cuny.edu and bkeele@indiana.edu.
[1] Patrick M. Scanlon, Song From Myself: An Anatomy of Self-Plagiarism, 2 Plagiary: Cross-Disciplinary Studies in Plagiarism, Fabrication, & Falsification 57, 59-60 (2007), http://hdl.handle.net/2027/spo.5240451.0002.007
[2] Liviu Andreescu, Self-Plagiarism in Academic Publishing: The Anatomy of a Misnomer, 19 Sci. & Engineering Ethics 775, 779 (2013). http://doi.org/10.1007/s11948-012-9416-1
[3] Carol M. Bast & Linda B. Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 Cath. U. L. Rev. 777, 803 (2008), http://scholarship.law.edu/lawreview/vol57/iss3/4
[4] Id.
[5] Michael L. Closen & Robert M. Jarvis, The National Conference of Law Reviews Model Code of Ethics: Final Text and Comments, 75 Marq. L. Rev. 509, 512 (1992), http://scholarship.law.marquette.edu/mulr/vol75/iss3/2/
[6] Comm. on Publ’n Ethics, Text Recycling Guidelines, https://publicationethics.org/text-recycling-guidelines, https://perma.cc/2TCK-ASM8
[7] Josh Blackman, Self-Plagiarism 13 (Feb. 18, 2017), http://doi.org/10.2139/ssrn.2919642
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