Here is a passage from the first article, published in Summer, 2006. I have noted the number of each footnote in brackets, since I will go over these later:
Later Roman law drew a distinction between injury to the person and injury to property. The former was termed injuria, and the later damnum injuria datum. A wrong involving theft of property was termed furtum. When violence accompanied such a wrong, it was termed rapina, or vi bona rapta. The protections afforded by the action in injuria addressed directly the interests protected by today's torts focusing on personal physical injury: the right to be free of physical interference with one's own person. The wrong would be redressable whether it was intentional or merely negligent, and could include “a multifarious variety of wrongs,” such as, without limitation, striking, whipping, kidnapping, or falsely imprisoning. It could also include wrongs that involve no physical contact, such as insult in the presence of others (convicium facere), defamation by spoken word, writing or deed, or importunings to inchastity.
And here is a passage from the second article, published in December, 2006:
Later Roman law drew a distinction between injury to the person and injury to property. The former was termed injuria, and the later damnum injuria datum. A wrong involving theft of property was termed furtum. When violence accompanied such a wrong, it was termed rapina or vi bona rapta. The protections afforded by the action in injuria addressed directly many of the interests protected by today's tort law governing personal injury, including striking, whipping, kidnapping, or falsely imprisoning. It could also include wrongs that involve no physical contact, such as insult in the presence of others (convicium facere), defamation by spoken word, writing, or deed, or importunings to inchastity.
It should be readily apparent that in the December article, the author has copied exact sentences from his earlier article, and has closely paraphrased those sentences which he did not copy.
Additionally, there is substantial overlap in the text of the footnotes as well. From the Summer, 2006 article:
174 Hunter, supra note 115, at 139-40.
175 See Lawson, supra note 120, at 146.
176 Hunter, supra note 115, at 140.
178 This involves taking the property of a solvent man as though in the course securing compensation for a debt of an insolvent man. For a modern example of deeds as defamation, see Nader v. General Motors Co., 25 N.Y.2d 560 (N.Y. 1970). In that case, the court found the automobile manufacturer liable for defamation for having the consumer advocate followed by private detectives as though he was suspected of wrongdoing, and also of contriving to have Mr. Nader be witnessed or photographed in unsavory settings.
179 Hunter, supra note 115, at 140.And from the December, 2006 article:
73 Hunter, Introduction to Roman Law, supra note 52, at 139-40.
74 Id. at 146.
75 Id. at 140.
77 This involves taking the property of a solvent man as though in the course securing compensation for a debt of an insolvent man. For a modern example of deeds as defamation, see Nader v. General Motors Co., 25 N.Y.2d 560 (N.Y. 1970). In that case, the court found the automobile manufacturer liable for defamation for having the consumer advocate followed by private detectives as though he was suspected of wrongdoing, and also of contriving to have Mr. Nader be witnessed or photographed in unsavory settings.
78 Hunter, Introduction to Roman Law, supra note 52, at 140.I did not look into much more of each article's substance, since these two paragraphs were the subject of the research I was doing at the time. But a bit of skimming indicates that the copying is not limited to the instances I have quoted.
The overlap between these articles raises several interesting questions about the ethics of scholarly writing and re-using old work. I will discuss those questions in the remainder of this post.
Is it Plagiarism When an Author Copies the Text of an Article the Author has Previously Published?
My position on this issue is that if an author copies sentences from a previous, published paper and reuses these sentences in another paper, the author is being academically dishonest -- and I think that the practice borders on plagiarism. It may not be paradigmatic plagiarism -- after all, the author has not taken the ideas of another person and presented them as his or her own -- but the author has copied and pasted portions of an existing publication without any attribution.
Even if the author is not claiming to have thought up ideas that actually belong to another person, by writing something without properly attributing it to a previous work, that author has dishonestly portrayed her most recent work as something original. This is not honest to the reader, and it is not honest to a journal that the author is asking to publish her work. For more on this, I recommend Miguel Roig's discussion of self-plagiarism beginning on page 16 of this paper.
Copying one's own previous article also seems to be an affront to the journal that published the author's original work, since that journal probably holds a copyright over the original article, and will probably contract with the author to restrict the author's ability to republish the article. While the author may have some leeway to republish the article, the agreements that I have seen often prohibit the reproduction of an article in other journals or books, and I think that copying portions of the article would violate these provisions of agreements. For more on this issue, see this white paper by iThenticate.
While an author's copying text from one of her earlier articles may not fit within the traditional definition of plagiarism, I feel comfortable concluding that it is at least very close to plagiarism. But what about material that's not from the text of the earlier article?
Is it Plagiarism to Copy Footnotes?
This is a question that I have wondered about for a while, and I think it is particularly important for the footnote-obsessed field of legal scholarship. The footnote-plagiarism question is more nuanced than it might seem at first, since there are several levels of copying that may occur at the footnote level.
Here is a list of actions that may be academically dishonest. I have taken a stab at addressing them in order of decreasing severity
Copying the Text and Source of Another Author's Footnote
I think that the clearest instance of plagiarism at the footnote level would be to copy the text and source of another author's footnote. An example of this would be a situation where an author finds a footnote that contains a citation to a case and a parenthetical explanation of the case. The author may think that the case is helpful to his own work, and the original parenthetical explanation of the case is concise and helpful as well, so the author may simply copy and paste that footnote into his own paper without any attribution to the original footnote. I think this would clearly be plagiarism.
Copying the Text and Source of One's Own Footnote
What if the author does the same thing as the author in the previous example, but now decides to copy the text and source from one of his previous articles? This seems to be what the author of the two articles I discuss earlier in this post did in footnote 77 of his second paper, where he copied the source and text from footnote 178 of his earlier paper. Here, I think the author would be guilty of academic dishonesty that borders on plagiarism -- the author is still lifting text from a previous paper and re-presenting it as original work. Just because the text that is copied is below the line doesn't mean that it is any less dishonest than text copied above the line.
Copying Sources Alone
What about copying only the sources from another paper? Consider an author finds an already-published article that makes a point that the author wants to make in her current article. In support of this point, the article cites several cases. The previous article has no summaries or text in the footnotes -- the footnotes simply contain citations to cases that the author thinks would be helpful for her current article. The author goes on to make her point in her own article (in her own original writing, and with attribution to the previous article's argument when appropriate), but copies and pastes the citations from the previous article into her current article.
Is this plagiarism? And does it make a difference whether the author is copying citations from another author's paper or from her own previous work?
I don't think that this would be properly classified as plagiarism. Unlike text, citations of authority do not play an expressive role. An author who copies a citation to authority is therefore not presenting work as her own original thought since no thoughts are expressed by a simple citation to authority.
On the other hand, finding the best citations, organizing them, and formatting them can take quite a bit of work and can have the payoff of making a paper far more authoritative. By copying citations from a previous paper, an author is bypassing all of the efforts that go into constructing a solid foundation of authority and is simply reusing the foundation of another paper.
When the citations copied are from an author's previous paper, the author has already done all the work to develop that authoritative foundation, and it seems a little strange to require the author to redo all the research. This may well be an overly-restrictive view of what is permissible in the context of academic writing, but the notion of lifting sources nevertheless makes me feel a bit queasy.
I'm not sure what the best answers are to these final questions. As a general rule for my own writing, I do not simply copy authority from other papers -- I flag a citation, and then I go and read the source myself. This ensures that my citation is correct, and it often leads me to other sources that I can use to supplement the point I am making.
While scholars may make a habit of citing their previous work, they run a very real risk of plagiarism if they make gratuitous use of their earlier papers. Authors should make sure that they are not presenting old material as original work. Erring on the side of proper attribution and doing a thorough job of one's own research is a good way to avoid some of the easier slip-ups that can occur in the reuse of prior papers' text and footnotes.