Plagiarism has been a big news item lately. At the Republican National Convention this past week, Donald Trump's wife Melania gave a speech that included word-for-word passages taken from Michelle Obama's 2008 speech to the Democratic National Convention. That caused a bit of an uproar, mostly among academics, journalists, and Democrats.
Stealing other people's words and passing them off as your own is bad. But stealing from others is not the only form of plagiarism. There is also something called self-plagiarism, where you steal from yourself without attribution. Compared to stealing from others, it's a lesser sin, but still generally frowned upon. Sometimes sternly.
Now, a disclosure. Lawyers are habitual plagiarizers. We recycle documents constantly, using language from past motions written by ourselves and partners to fill out new motions, copy/pasting big chunks of old briefs and filings into new briefs and filings, etc. Firms often keep repositories of past filings that are shared by multiple lawyers. Some lawyers, especially those with lots of clients and heavy workloads dealing with the same legal issues over and over, routinely reuse old documents, sometimes simply replacing one client's name with another. It's not the best way to do things but it saves a ton of time. There are some filings in litigation that are truly routine and rewriting them from scratch is wasteful and simply not necessary.
Is this OK? I've seen it excused on the basis that the lawyer is not claiming whatever it is he or she plagiarized as his or her original work in a public sphere - in other words, there is a difference between court filings and an academic article or a news piece - but that's not really true because court filings are public and lawyers sign their names to everything they file.
But, on the other hand, legal advocacy is not an academic pursuit. You have to write a lot and provide sources, sure, but lawyers use written briefs and motions to point out to the court the legal reasons why their client should win a particular dispute. Legal writing is a tool more than a piece of scholarship. Even a 14,000-word appellate brief is not considered an academic work for which the author is seeking personal recognition. It's a letter to the court asking for them to do something in your favor and giving them reasons why they should.
Judicial opinions, like those written by Supreme Court justices, are a little different in my mind. They're still not academic or journalistic works, but they carry the weight of law and are cited for their authority as legal precedent. They gain power over time, and reflect the author's personal views on how the law should operate and how it should be applied to facts which may reoccur in the future. Judicial opinions contribute to a judge's public reputation. So, in that case, I think plagiarism is a much bigger deal.
What about self-plagiarism in judicial opinions? Well, that's kind of curious. Is a judge ripping himself or herself off in an opinion without attribution as big a deal as stealing from another judge without attribution? Probably not. But is it still kind of dubious? Probably.
Until recently, I had never noticed an incident of judicial self-plagiarism. But in my preparation to teach an upcoming class on constitutional rights, I noticed an interesting little historical reference used twice by the late Chief Justice William Rehnquist.
In 1985, the Supreme Court decided the case of Wallace v. Jaffree. Jaffree was a lawyer and the father of three children attending public schools in Mobile, Alabama. At school, his children were required by state law to observe "a period of silence, not to exceed one minute in duration...for meditation or voluntary prayer." Jaffree sued the school district, arguing that the purposeful inclusion of "voluntary prayer" by the Alabama legislature violated the Establishment Clause of the First Amendment.
The Supreme Court agreed with Jaffree, and struck down the law. In dissent, then-just-Justice Rehnquist (he would become Chief the next year) wrote a solo dissent criticizing the Court's interpretation of the Establishment Clause. The Court interpreted it to require strict religious neutrality on the part of the government. Rehnquist argued that the prominent role of religion in the history of American government belied this claim. To bolster his argument, Rehnquist referred to a person you may have heard of:
George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."
472 US 38, 113. I didn't omit any citation. Rehnquist didn't cite any source for this quote. But that's not the rub.
The rub comes fifteen years later, in a case called Santa Fe Independent School District v. Doe. In the late 1990s, Santa Fe High School in Texas started every football game with a student-led prayer or invocation. A group of students and their parents sued the school district, arguing that the pre-game religious ritual violated the Establishment Clause.
Like in Jaffree, the Supreme Court agreed, striking down the school's prayer scheme. Justice John Paul Stevens wrote the majority opinion (just like he had in Jaffree). And once again, now-Chief-Justice Rehnquist dissented. The fact that he dissented wasn't the only thing familiar about the case. This passage from his opinion in Santa Fe may also seem familiar:
...when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."
530 U.S. 290, 318.
Rehnquist used the exact same sentence about George Washington in his Santa Fe dissent that he had previously used in his dissent to Jaffree. The only difference in Santa Fe was that he included a historical source for the Washington quote ("Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897).").
Rehnquist did not, however, note the fact that he had already written this same passage in Jaffree. Normally when Justices quote themselves, they cite to the original opinion (even if it was a dissent and not the majority holding). It is somewhat odd that Rehnquist didn't do that in Santa Fe considering he was trying to make the exact same point he made in dissent to Jaffree.
Is this a big deal? Probably not. Chief Justice Rehnquist was no Melania Trump. But it is interesting to see that the phenomenon of plagiarism pops up even in the hallowed halls of the United States Supreme Court from time to time.