Neil Gorsuch’s plagiarism—or is it plagiarism?

Our newest Supreme Court justice, Neil Gorsuch, has been accused of plagiarism in articles in Politico, BuzzFeed, and New York magazine. There are several instances where he simply repeats the words of others in a 2006 book Gorsuch wrote about euthanasia (he’s against it) as well as in his Ph.D. thesis at Oxford and an article in a law journal. The example below shows the copying blatantly; as New York Magazine notes:

.  . . in several sections of Gorsuch’s 2006 book The Future of Assisted Suicide and Euthanasia, and in an article on the same subject published in the Harvard Journal of Law and Public Policy in 2000, he repeats the facts, words, and structures of other sources without citing them.

The most egregious example is a summary in Gorsuch’s book of a 1982 case involving a baby with Down syndrome. Gorsuch repeats about 11 sentences from an Indiana Law Journal article by Abigail Lawlis Kuzma, omitting and altering only a few words and sentences. Rather than giving Kuzma attribution, Gorsuch cites the same sources that she relied on.

Politico highlights the similarities from Gorsuch’s book. Judge for yourself. I don’t care whether Gorsuch cited the same sources; it is still the words of Kuzma (I’ve cut and pasted screenshots the best I can here):




New York magazine gives another example:

In another example, Gorsuch appears to lift his description of euthanasia activist Derek Humphry from the 2003 book A Merciful End: The Euthanasia Movement in Modern America by Ian Dowbiggin. Here’s Gorsuch:

In 1989 Humphry left his second wife, Ann Wickett, soon after she had undergone surgery for breast cancer. During the divorce, Wicket alleged that when Humphry purported to help her mother commit suicide, the resulting death was not fully consensual.

And here’s Dowbiggin:

In 1989 he left his second wife, Ann Wickett, shortly after she had undergone surgery for breast cancer. Their subsequent divorce was made messier by Wickett’s allegations that her mother had not died willingly when Humphry had participated in the suicides of her own parent.

BuzzFeed adds more examples:

Chris Mammen, who was a student at Oxford while Gorsuch was there, said in a statement provided by Gorsuch’s team, “The standard practice in a dissertation is to cite the underlying original source, not a secondary source, that supports a factual statement.”

A BuzzFeed News review of the 10 case summary sections in the first half of chapter 10 of Gorsuch’s book, including the Baby Doe section, shows that one of the other nine also appears to have repeated some language from an uncredited law review article, although less extensively. A third section quotes extensively from a foreign-law decision — which is cited at the opening of the section — but large quotations are reprinted directly without using proper attribution.

Now this is enough to get any author’s book withdrawn or annotated, to get a journalist fired, or to get a student an F for copying. But not Gorsuch–he’s being defended on several grounds by the White House, none of which I see as valid.

  • Kuzma said she “didn’t have a problem” with Gorsuch not citing her article. So what? He copied her words without attribution. Kuzma also said this:

I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the ‘Baby/Infant Doe’ case that occurred in 1982. Given that these passages both describe the basic facts of the case, it would have been awkward and difficult for Judge Gorsuch to have used different language.

It doesn’t matter to me whether the passages are factual rather than analytical; it’s still plagiarism: theft of someone else’s writing. It’s pathetic that Kuzma defends Gorsuch by saying that it would have been too hard for him to describe facts in his own words. We academics do that all the time!

  • Gorsuch stole language and facts, not ideas.  Politico notes:

The experts offered by the White House asserted that the criteria for citing work in dissertations on legal philosophy is different than for other types of academia or journalism: While Gorsuch may have borrowed language or facts from others without attribution, they said, he did not misappropriate ideas or arguments.

“Judge Gorsuch did not attempt to steal other people’s intellectual property or pass off ideas or arguments taken from other writers as his own,” said George. “In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn’t even any smoke.”

See above. Gorsuch passed off many words as his own. That’s plagiarism. And yes, he was implicitly asking for credit for those words.

  • It wasn’t deliberate theft, but simply sloppy writing.  We don’t know whether that claim is true, and it doesn’t matter: sloppiness is still plagiarism: the use of someone else’s words as if they were your own.
  • The standards for plagiarism are “different” in law articles.  This is noted in the first point above, and in the White House’s response, as cited in New York magazine:

The Gorsuch team’s other defense, according to Politico, is that “the criteria for citing work in dissertations on legal philosophy is different than for other types of academia or journalism.”

But this doesn’t seem to be true:

Gorsuch’s book is based on the dissertation he wrote at Oxford University, and Dr. Chris Mammen, who was a student there at the same time, claimed, “The standard practice in a dissertation is to cite the underlying original source, not a secondary source, that supports a factual statement.”

And the purloined statements are not just in a dissertation, they’re in a book published by Princeton University Press and based on Gorsuch’s dissertation at Oxford.  Oxford’s own guidelines prohibit this kind of plagiarism. New York adds this:

 Rebecca Moore Howard, a Syracuse University professor, said Gorsuch is guilty of “heavy patchwriting” – the term for borrowing from another work, with only small alterations – and “hides his sources, which gives the appearance of a very deliberate method. I would certainly call it plagiarism.”

The White House has ginned up faux outrage over a case of what is at best inexcusably sloppy writing, which in my view amounts to plagiarism, for it uses other people’s words as if they were Gorsuch’s.  If a journalist did this, they’d be fired. If another academic did this, they’d either pull the book or correct it. Why is a Supreme Court justice gettting a pass?

“Heavy patchwriting” is plagiarism.

h/t: Robert N., Grania

45 Comments

  1. toni j.
    Posted April 12, 2017 at 2:45 pm | Permalink

    Alas, the proverbial horse has left the barn.

  2. Sshort
    Posted April 12, 2017 at 2:46 pm | Permalink

    Well, in my opinion, the White House has ginned up faux outrage over a case of what is at best inexcusably sloppy writing, which in my view amounts to plagiarism, for it uses other people’s words as if they were Gorsuch’s. If a journalist did this, they’d be fired. If another academic did this, they’d either pull the book or correct it. Why is a Supreme Court justice gettting a pass?

    I also think that “heavy patchwriting” is plagiarism.

    But that’s just my opinion.

    • Jonathan Wallace
      Posted April 12, 2017 at 3:40 pm | Permalink

      LoL

    • DiscoveredJoys
      Posted April 13, 2017 at 3:04 am | Permalink

      And yet in practice judges often use material from amicus curiae and involved parties (such as in the Dover case) in writing up their judgements. Indeed you wouldn’t want a judge to use creativity or try for literary style in such works – they have a different purpose.

      I do not have enough information to know if Gorsuch steps beyond this type of working.

  3. rickflick
    Posted April 12, 2017 at 2:50 pm | Permalink

    I’ve watched some of the Gorsuch hearings and read commentary on his positions. It gives me the impression he’s not very principled in his positions. Or at least his principles are not even close to my own.
    But, I’m sure plagiarism like that described will have very little, if any, impact on him or his career. There’s simply nothing you can do about a bad pick on the Supreme Court. He’ll be there until hell freezes over ruling through his biases no matter what anybody thinks.

    • Taz
      Posted April 12, 2017 at 3:57 pm | Permalink

      It may not be likely, but Supreme Court justices can be impeached.

      • rickflick
        Posted April 12, 2017 at 6:28 pm | Permalink

        Samuel Chase was The only Justice to be impeached in 1805 for being too partisan. However, he was acquitted by the Senate. William O. Douglas was referred for impeachment because he granted a temporary stay of execution in the Rosenberg case. Unless Gorsuch murders another Justice while court is in session, and confesses to it, I doubt he’ll be touched by the law.

  4. Linda Calhoun
    Posted April 12, 2017 at 2:55 pm | Permalink

    Plagiarism is evil. It is theft, plain and simple.

    It is so easy to do an attributive citation when writing, so it can’t be passed off as a mistake, or something else inadvertent.

    Gorsuch has no business being on the Supreme Court. He is a criminal. L

    • Historian
      Posted April 12, 2017 at 4:08 pm | Permalink

      I do not know if plagiarism is a crime subject to criminal penalties or whether the plagiarist is just subject to civil damages. In Gorsuch’s case, it doesn’t matter since the Republicans would never allow their man to be denied a Supreme Court seat for plagiarism, which they undoubtedly view as small potatoes. The Democrats would probably act similarly if the situation were reversed. Since nothing is being done about Trump’s myriad of conflicts of interest, we can expect the plagiarism issue to quickly fade from public attention.

      • Robert Bray
        Posted April 13, 2017 at 10:23 am | Permalink

        ‘I do not know if plagiarism is a crime subject to criminal penalties or whether the plagiarist is just subject to civil damages.’

        Strictly speaking, plagiarism is a sin against scholarship, and therefore deemed unethical within the learned professions; while (of course) violation of copyright is legally actionable.

  5. Heather Hastie
    Posted April 12, 2017 at 3:09 pm | Permalink

    I also think this is plagiarism. However, the morals of the president and many in the current White House are such they would not care imo.

    Trump calls himself a writer and all his books were ghost-written. He wouldn’t understand a term like intellectual integrity if it was Tw€€ted at him.

    • Randy schenck
      Posted April 12, 2017 at 4:06 pm | Permalink

      I doubt very much that the white house would be the place to turn to for definitions of plagiarism. Lying yes, loss of credibility yes. It’s kind of like asking Bill O’Reilly to define sexual harassment – Trump said he did nothing wrong so everything is good.

      I wonder if cheating is allowed at the Supreme Court?

      • Ken Kukec
        Posted April 12, 2017 at 4:47 pm | Permalink

        It’s certainly not considered “cheating” as such, but each Supreme Court justice has up to four law clerks (the Chief gets up to five), almost exclusively recent graduates from top law schools who have a year’s experience clerking on a lower federal court. It’s common for the law clerks to do the initial drafting of their justices’ opinions, and justices vary widely as to the amount of rewriting of the drafts they do. (How much a particular justice does, tends to be a closely held secret, at least during a justice’s lifetime.)

        A few judges in the federal system are known to draft all their own opinions from scratch, relegating their law clerks to doing research — perhaps most famously among them, Richard Posner of the Seventh Circuit Court of Appeals.

        • Randy schenck
          Posted April 12, 2017 at 5:01 pm | Permalink

          Makes sense. The research is where much of the work is, I’m guessing. Long ago I took a lot of transportation law, back in the ICC days.

          Lincoln is likely the only president I know who wrote all of his own speeches. Among all the other jobs he did was to personally go over all the written details of soldier’s accused of desertion and made the decisions on penalty. Many were pardoned.

  6. Merilee
    Posted April 12, 2017 at 3:15 pm | Permalink

    Sub

  7. Posted April 12, 2017 at 3:20 pm | Permalink

    I feel more forgiving about plagiarism today than usual. I’m writing keys and descriptions of plants. There are only so many ways to says “Flowers red, species A; Flowers blue, species B” so a lot of copying is done. I prefer to start with the best existing key to the group that I know of, and then modify it. Usually, it ends up being very much my own because, frankly, the best keys to some groups aren’t that good. However, in some small groups the key really can’t be changed usefully. Descriptions are a problem, too.

    I do cite my sources in that there is a reference section, but individual phrases or key leads don’t track back to their authors even if they’re still in the original words. I can console myself that this issue is just real and everybody who does this lifts some of the information and/or wording from elsewhere, but that’s not as consoling as I wish.

    • Craw
      Posted April 12, 2017 at 7:28 pm | Permalink

      Yes. Technical descriptions of fistulae?

      I will also say I don’t give a rat’s ass about stray sentences being copied. And I will bet I can find sentences every writer here has written that have been written before. Does anyone want to give odds on “New York magazine gives another example” or “I also think this is plagiarism” have been written before? (I am not accusing either writer of plagiarism or even deliberate copying; that is my point). While the writers I have quoted may care deeply about such short instances of duplication to me they are a guild-like concern. My great aunt would be very upset if the salad fork and the dinner fork were in the wrong place too. That is how I see this kind of obsessing over priority.
      And it clearly does matter that the “victim” is fine with it. We are dealing with a convention here — like the salad fork — where the standard of what is acceptable is inevitably tacit and so can be best determined from such reactions. Example: I write code and specifications; I am sometimes copied, and that is perfectly OK. In a class that would be verboten, but in a community of co-operative practitioners it is fine. The standards are socially constructed. Kuzbass likely understands the relevant ones better than any of us here.

      • ChrisB
        Posted April 12, 2017 at 9:37 pm | Permalink

        Clearly it does not matter that Kuzma says she is “fine with it”.

        If Gorsuch beats his caddy senseless with a pitching wedge and Kuzma claims to be fine with it, this does not relieve Gorsuch of responsibility for his actions.

    • Laurance
      Posted April 13, 2017 at 8:18 am | Permalink

      I, too, am not entirely certain about whether or not a theft has taken place in some situations. I worked as a designer in a jewelry factory. We made ordinary garden variety ho-hum jewelry, not unique works of art to be displayed in an art gallery and sold in the art museum store. What that meant was that my stuff looked like the stuff you see in jewelry stores at any mall. There are only so many things you can do if you’re limited like that. Stealing of jewelry designs can be hard to prove in cases like this.

      Years ago I was part of a bunch of people online who were working on a creative project. A woman in England and I both came up with the same idea. And I was not surprised. I suspect there were more people who got the idea but never spoke up. The nature of the project would elicit ideas such as ours. But nobody was stealing ideas.

      As for writing, if half a dozen of us were asked to describe something, I wonder if we’d sound a lot alike, depending on what it was we were describing.

      Mind you, I’m not defending this clown! I’m horrified! Rather I’m aware that it can be easy in certain circumstances to say or do pretty much the same thing as someone else.

      • remoran42
        Posted April 13, 2017 at 8:24 am | Permalink

        Great point. In terms of Gorsuch though, the detailed nature of his plagiarism is pretty obvious IMHO.

  8. J. Quinton
    Posted April 12, 2017 at 3:56 pm | Permalink

    Pfft! Matthew and Luke copied from Mark word for word just like Gorsuch, but you don’t see anyone complaining! Plagiarism is BIBLICAL!

    • Ken Kukec
      Posted April 12, 2017 at 4:51 pm | Permalink

      Poor “Q” rarely gets credit.

  9. tubby
    Posted April 12, 2017 at 4:17 pm | Permalink

    I wouldn’t have just gotten an F for a paper with the kind of work that Gorsuch passed off, I would have been expected to respond to the dean after being reported, and likely been expelled for it. We had a zero tolerance policy.

  10. Jeffrey Shallit
    Posted April 12, 2017 at 4:50 pm | Permalink

    Robert George knows perfectly well it’s plagiarism. Yet another example of how his decisions about the ethics of a situation depend on his preconceptions, not any rational analysis.

  11. Rob
    Posted April 12, 2017 at 5:40 pm | Permalink

    Seems Gorsuch could easily have used the passage by saying “Kuzma summarized the case” and then quote the passage. Would have been clean, simple, and honest.

    • Craw
      Posted April 12, 2017 at 7:48 pm | Permalink

      Yes. But to pretend that the failure to do that is turpitude is overwrought, parochial, and unconvincing. People here were far more indulgent with Neil deGrasse Tyson’s repeated false statements for example.

      • ChrisB
        Posted April 12, 2017 at 9:04 pm | Permalink

        You’re wrong, Craw. There were several more ethical ways Gorsuch could have gone about his professional business. Most other people committing his transgressions would not be given such special pleading.

  12. ChrisB
    Posted April 12, 2017 at 9:28 pm | Permalink

    This is plagiarism.

    He copied several paragraphs of another person’s work and cited the literature the scholar painstakingly researched, read, thought about, and summarized. Had he been trying to cite properly, given his lifting of blocks of text from Kuzma’s work, he could at the least have cited her as well. That’s one ethical approach he could have taken.

    Alternatively, he could have tracked down the primary sources used by Kuzma. Then, putting aside Kuzma’s work, read the primary sources himself and wrote his own exposition of the facts in his own words. That would have been another more ethical approach.

    Yet another alternative:
    As the ‘experts’ from the White House dutifully pointed out:
    “the criteria for citing work in dissertations on legal philosophy is different than for other types of academia or journalism”.
    If it was too “awkward and difficult” for Gorsuch to do his own work on his own dissertation, then he should have just stated he was presenting a factual summary of important cases, block quoted Kuzma’s work, and properly cited her.

    Instead, he blatantly ripped off Kuzma’s work, citing the primary sources she consulted and summarized, and properly attributed, and did not mention her publication at all. It is just adding insult to injury that his alterations to the plagiarized work was invariably worse in phrasing that the original.

    If I were to do such a thing in a manuscript I submitted for publication and got caught, the manuscript would be rejected and I likely would not be welcome to submit manuscripts there again, or at least for a very long time. I could also be reported for scientific misconduct to my emplyers, who tend to take such matter very seriously, at least with regard to a regular person like me.

    • peter
      Posted April 13, 2017 at 3:38 am | Permalink

      “If I were to do such a thing in a manuscript I submitted for publication and got caught, the manuscript would be rejected and I likely would not be welcome to submit manuscripts there again, or at least for a very long time.”

      You probably won’t be able to. These days university’s automatically check for plagiarism using the schools dissertation/paper database and through services provided by different vendors that have large databases covering a lot of the published journals and books.

      • ChrisB
        Posted April 13, 2017 at 9:05 am | Permalink

        You are right, peter. With today’s text checking software it is difficult to get away with plagiarism. Gorsuch’s minor rewording of Kuzma’s material would be picked up easily.

  13. Whitt Staircase
    Posted April 13, 2017 at 5:45 am | Permalink

    This is just one more in a growing list of things we all thought were A, but the new cadre of people in office believe are B, so now they are B. This includes standards of presidential behavior, conflicts of interest, qualifications for cabinet positions, core American values of tolerance, &c. &c.

  14. Posted April 13, 2017 at 7:36 am | Permalink

    I suppose it’s unpopular not to be really concerned about this. I assume he knew he was “stealing a phrase” so to speak when he did it. It does show a tendency to laziness and lack of imagination. I’d say that’s typical of most of today’s Republicans in general.
    But that’s not what i think is most troublesome about the man. My issue with him is the right wing ideology he will refer to when he makes decisions as a Supreme Court justice.
    http://www.rightwingwatch.org/post/religious-right-praises-gorsuch-as-key-to-its-policy-goals/

    • Posted April 13, 2017 at 11:36 am | Permalink

      This reminds me of a slogan allegedly used in one of the past French elections: “Vote for the crook Chirac rather that for the fascist Le Pen!”

      • Posted April 14, 2017 at 7:31 am | Permalink

        For me it all boils down to; His plagiarism doesn’t affect me, but his world view will lead to very tangible consequences.

        I’m disturbed more by his personal opinion of the legality(and morality)of assisted suicide than the fact that he failed to credit his sources.

  15. remoran42
    Posted April 13, 2017 at 7:45 am | Permalink

    Totally agree. I posted this blurb in brt. https://beyondrealtime.blogspot.com/2017/04/plagerism-yet-again.html

    Unreal.

    Great blog BTW.

  16. remoran42
    Posted April 13, 2017 at 7:45 am | Permalink

    Totally agree. I posted this blurb in brt. https://beyondrealtime.blogspot.com/2017/04/plagerism-yet-again.html

    Unreal.

    Great blog BTW.

  17. Laurance
    Posted April 13, 2017 at 8:41 am | Permalink

    Well well! Look at this! Look at the changes made!

    Look at what was NOT copied. Kuzma wrote that the obstetrician attending the birth said that the baby was just too horribly disabled and mentally retarded to have any quality of life even with the operation. Gorsuch didn’t bother to report this fact.

    This is vital information, and Gorsuch carefully ignored it.

    See what Kuzma said following the vital paragraph that Gorsuch omitted, “…one of the pediatricians testified that Downs Syndrome children may have a reasonable quality of life.”

    Notice that’s Downs Syndrome children in general. A general statement about some children.

    Gorsuch changes things, “…one of the pediatricians testified that the child might enjoy a reasonable quality of life.”

    WHOA!!! That’s a whole ‘nother statement! That’s not about some children in general! Now it’s a statement about that particular baby! “…the child…”

    I’m 75 now, and I’m a lifetime member of The Hemlock Society which is now known as Compassion and Choices, as well as Death With Dignity. I want to have the right to choose my own death. Now that this bozo is on the Supreme Court things are going to be harder.

    • ChrisB
      Posted April 13, 2017 at 9:16 am | Permalink

      Plagiarism AND intellectual dishonesty. Great combo for a Supreme Court justice.

    • rickflick
      Posted April 13, 2017 at 10:14 am | Permalink

      I haven’t researched Gorsuch on the pleasure he gets inflicting pain on the elderly, but what you’ve included here should disqualify him from the Judiciary or any job affecting other people. Which leads me to think, if he was more humane and compassionate and rational I’d forgive any amount of plagiarism. But it looks like we’re stuck with the worst of both failings. Appalling.

  18. Posted April 13, 2017 at 11:55 am | Permalink

    Looks like plagiarism to me, pretty open and shut.

    And there’s a difference between using a ghostwriter (or a law clerk) and a supposed scholarly monograph.

  19. Saijanai
    Posted April 13, 2017 at 1:23 pm | Permalink

    Can hs choo (Harvard?) rescind his JD degree?

  20. Saijanai
    Posted April 13, 2017 at 1:25 pm | Permalink

    By the way, can you set a preview function? I saw two spelling eero but accidentally sen it before I was do.

  21. CJColucci
    Posted April 13, 2017 at 2:33 pm | Permalink

    One thing that has always bothered me, especially now that there are plagiarism databases, is straightforward factual description of background information in straightforward prose. If I had been given the factual information conveyed in Kuzma and Gorsuch, without having seen their actual words, I think I would have written something astonishingly similar. I don’t know what Gorsuch was up to, and he had probably read Kuzma at some point so her language might have been buzzing around in his unconscious mind even if he didn’t knowingly steal it, but I don’t think pure accident is out of the question.

  22. remoran42
    Posted April 13, 2017 at 7:14 pm | Permalink

    Lawerance is totally right on this.as this is worse than plagiarism as he indirectly compromised the integrity of the people he copied from by omitting information they had done research on that was contrary to the doctoral thesis he was working on. What a troll.

  23. Posted April 17, 2017 at 11:59 pm | Permalink

    Politic did well to find the Kuzma text, but one can display plagiarism better:

    Gorsuch (2004, 2006) From Kuzma(1984) – Classic Copy-Paste-Edit In Color
    http://www.huffingtonpost.com/entry/58ec4669e4b0145a227cb7f9

    82% of the words in his “Baby Doe” (sic) section were copied identically, in-order from Kuzma (shaded blue, and then aligned via line breaks to make obvious),

    Then he did trivial edits (yellow), moves (green), but the most disturbing are the red sections in Kuzma.

    It helps to have read chapter 10 in dissertation/book. Gorsuch is strong on “inviolability of human life” (which is fine), but Kuzma’s paper seemed balanced with 1) Concern for infant and 2) sympathy for stress of parents’ choice.

    Gorsuch’s edits mostly removed 2, and then the whole “Leading infant care cases” in a dissertation focused on American law … is strange, since:
    a) All cases were 20+ years old when he did dissertation
    b) 1/3 cases was of 12-year-old.
    c) 1/3 cases was British.


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