Am I missing something? Could the author of the article be the person who wrote those sections of the brief? In that case, there would be no plagiarism. Further, arguing that the material shouldn't have been published because that side lost seems misguided (hey, some of us would say that Scalia hating the brief was an indication of its keen insight!) and arguing that it shouldn't have been published because it was produced as part of an advocacy exercise appears to import restrictions whose justification is not immediately obvious. How does Mr. Chad Charlesworth Worthington IV know that the author didn't believe in the position he took in the brief, or come to believe in it? Are you, in fact, absolutely required to believe the position you take in a work of scholarship, or are you merely required to believe that it is a defensible position? (I am talking here about the minimums we expect, not what the very highest aspirations of the profession are.) Especially in discussions of policy rather than analyses of fact?
The Harvard Law Review Review? By the great-grandson of the founder? God. Four generations of HLR obsessives is enough. Even one is pushing it.
That post was hilariously funny. I haven't read such self-important drivel even in the Harvard Law Review! John. Jay. McKelvey. The Fourth. Indeed!
Also, as Sarah notes: What is the same dude wrote the brief and article?
In any event, the open letter was a great laugh and pretty much made my (mundane) day.
I actually would prefer a Note written by someone who was randomly assigned to the viewpoint rather than some true believer who is predisposed to ignore evidence from the other side. I also think it is likely that the brief author is the Note author.
I think John Jay Whatever is basically write that this is plagiarism. This is an unsigned note. It's effectively corporate authorship. Is the Review going to say: "Notes have no authors, unless, of course, someone says they were plagiarized from an Ames brief, in which case we'll identify someone on the Ames brief as the "author," to knock out the plagiarism charge"? That makes a mockery of the idea that notes don't have individual authors. You can't have it both ways. Either stick to corporate authorship, in which case this is plagiarism, or abandon for all notes the idea that there's no individual author (in which case in such situations there might not be anything to a plagiarism charge).
In other words, the Review policy that notes don't have individual authors is what produces a situation where it can't beat a plagiarism charge without dropping the policy.
I take it the Review's going to have to officially name the author, and have the author explain that he or she lifted his or her own work (not that of the 5 other team members), in order to beat the plagiarism charge. If this doesn't happen, that sounds like an admission of plagiarism, through the failure to offer a defense to what is after all a serious charge of academic misconduct.
Looking at the first comment, I do agree that John Jay goes a little far in complaining that the Ames brief was the LOSING brief. I agree that if, in fact, Scalia didn't like that (is it true? I guess the video's somewhere), maybe that means it was a good brief.
But I think I agree with John Jay that there's something disturbing about the note author just publishing what he or she was randomly assigned to argue in a moot court exercise. I think I disagree with Amber on that.
I mean, suppose before Lawrence v. Texas, the Ames moot court involved the question of whether the exact anti-sodomy law involved in that case was constitutional. Suppose at the start of his or her 3L year, one of the Ames finalists decided to write his or her note on that exact issue. But suppose the finalist didn't know which side he or she would be arguing.
That is, suppose the finalist decided, IN ADVANCE, to publish a note arguing whatever conclusion he or she was randomly told to argue. If the coin toss came up heads, the note would argue the statute was unconstitutional. If tails, the note would say it's constitutional. Does it make any sense for the Review to publish a note whose conclusion was dictated through randomness without telling the reader that the conclusion of the note turned basically on a coin flip? I can't see it.
Possibly, if all the notes were signed, such an explanation wouldn't be needed, because readers might be able to figure out that the note originated from an advocacy exercise. But with unsigned notes, that's impossible -- so I think some sort of disclosure was needed, quite apart from the plagiarism problem (which can't be fixed short of disclosing this author and, to avoid inconsistency, all future authors).
"Does it make any sense for the Review to publish a note whose conclusion was dictated through randomness without telling the reader that the conclusion of the note turned basically on a coin flip?"
If the arguments are sound, why not? If the author doesn't believe in the position and, because of this, can't make a good argument, then you shouldn't need to be told that to detect that the arguments are poor. If the author makes a good argument regardless, what do you care what his or her motives are? This sounds like more gatekeeping-as-salve-for-status-anxiety.
As for the corporate authorship, that has no bearing on the actual relevant question: did the person actually writing the note copy material from someone else unattributed? That's all that matters, morally--the idea that a person can reproduce his work if he signs the work in which he does the reproduction but not if it's put out under the name of the collective relies on a serious miconstrual of the reason that plagiarism is objectionable in the first place, which is to protect original authors from having others pass off their work as the others' (in this case, no protection required) and to prevent copiers from reaping the benefit of others' work (if the collective HLR is benefiting unfairly here, it actually benefits unfairly from every single unsigned note, since, after all, the HLR as a body can't write any notes at all and it benefits from each one, regardless of whether the material is making its first appearance in the Review).
If the author of the note is the author of the brief, this is a pseudo-scandal. I see nothing problematic with the author of a moot-court brief becoming interested in one of the topic of the brief and expanding on it. The randomness of the cause of the interest hardly matters any more than a doctor's research interest in the disease that killed her brother. Christ, my entire current career is a result of my being randomly assigned to a sudden- acceleration case as my first assignment as an associate and being appalled at the abusive litigation and disingenuous judging and "safety" advocates.
Separately, see Scott Greenfield's snark.
[JUST LEFT THIS COMMENT UNDER SCOTT GREENFIELD'S POST, WHICH IS HILARIOUS; THOUGHT I SHOULD DOUBLE POST IT HERE, AS IT CONTAINS NEW INFO ON "JJM," AND SPECULATION ON AMBER'S "MOLE" THEORY]
Awesome post, Scott. Especially the "JJ" bit.
However, I have to correct you on one thing. I received the e-mail, too, as I've done a minor amount of blogging on the HLR (much less than you, so I can't complain about being omitted), and actually took the trouble to e-mail the guy. He takes himself really seriously. I mean, it really does seem he feels all that weight on his shoulders!
Anyway, funny thing is, he actually initials the end of his posts, with "JJM." Isn't that some upper-class thing? It's like he's monogramming his e-mails! So Scott, he should henceforth be "JJM" to you, not "JJ."
You know, if my great-great grandfather had been at Harvard Law way back then, I'm confident it would have been the "Harvard Five." (Who came up with that "Harvard Four" crap, anyway? Maybe "JJM I" -- seems like "JJM I"'s main contribution to the Review, according to the Time article in the post, was to get the money from his NY contacts. Maybe he knew Luce at Time.)
One final correction. At the risk of being unduly "JJM-ish," I believe you should have said "Yale Law Journal," not "Yale Law Review." And I don't think they're fuming. I think Amber's right -- I think they have a mole at the Harvard Law Review, one who's been working overtime. You know, Andrew Crespo has so messed up the place that it occurs to me he may be a double agent.
I said "YLS," as in "Yale Law School."
Amber, sorry for the misunderstanding, but I was not suggesting YOU made any mistake.
This comment is a cut-and-past "cross post" of the comment I left on Scott's blog. I probably should have rewritten it to just be a separate comment on your blog. But then, I'm lazy.
I was responding to Scott's sarcastic comment that what with JJM's statement that HLR is "preeminent," "I bet the guys over at Yale Law Review are fuming . . . "
So I was JJM-ishly pointing out that Scott had misnamed Yale's competitor to the HLR Like only something JJM and HLR folks would be anal enough to do. Get it? Okay, pretty lame.
BTW, I notice Scott has now corrected the mistake. But he won't correct "JJ," he says, in homage to a "Jimmie Walker." I don't get that reference. Maybe only old farts like Scott get it.
One more thing, before I've beaten this to death.
What, exactly, does this guy think he's going to hear back from the HLR president. Something like this?
"Dear Mr. McKelvey,
Thank you so much for your commentary on our May issue. We appreciate your great-great grandfather's contributions to the Review, and your family's continued interest in the institution.
In answer to your questions, the note author is _____ [insert name]. We have abandoned our policy of printing anonymous notes, and will henceforth name all student authors. We will be issuing an errata on the other note, correcting and apologizing for the errors in that note.
Please do keep us apprised of your reactions to our future issues.
Yours very truly, etc."
All joking aside, does anyone thing the president's going to write JJM anything? He'll just ignore JJM, right? If so, what's the end game? Is JJM going to blast e-mail the rest of the U.S. population?
As a soon-to-be 3L not on Law Review (I'm not using my real name), I have to say McKelvey's blog perfectly reflects the arrogance associated with the place. The acorn seldom falls far from the tree.
Personally, since there's at least a couple people on the Ames team who are also on the Review (people called it the Law Review team), I agree with Amber it probably wasn't plagiarism.
All I think needs to happen is for the president and/or author just to name the author, and state the author was on the Ames brief. A small notice on the Review website would do it; anyone inquiring could be directed there.
This should happen fast, so the Review doesn't look like it's sandbagging. If it says nothing in response to a charge of plagiarism which is well documented (I'll say at least that for McKelvy), couldn't that be deemed some sort of admission?
It's pretty obvious to most people at HLS the exact person (someone on the Ames team) who was the author. I will not name him or her, and I hope other students avoid doing so to give the president and/or the author the chance to step forward and deal with this. If they don't, just as with Phil Telfeyan, people on blogs may start throwing out a name, or names, and the author and Review may be attacked, etc. The internet can be a cruel place.
Remember, despite how obvious it is to students who the author is, it's not obvious to the outside world. They ahve no idea.
Precisely because there doesn't seem to be much substance to the plagiarism charge (given who the author obviously, to us, actually is) the Review/author should move quickly to put out this fire, to avoid the collateral damage likely to be caused by a strategy of silence.
I'm not sure I agree with Amber that the Review needs to comment on Telfeyan's note. It is what it is, mistakes and all, and the identity of the author doesn’t seem relevant to any attack on the note going to scholarly integrity. Maybe it should correct factual mistakes, but I'm not sure it needs to name Telefyan as the author.
The note copied in part from an Ames brief is different. On it's face it's plagiarism, as the brief existed 6 months before the note was published. It requires comment. Eyebrows will be raised if no comment is forthcoming.
I think I will e-mail the Review, current president, old president, and the person I'm sure is the note author to alert them all to this comment. This looks like a small thing, but it could easily grow if allowed to fester. I would copy McKelvy on it, but I don't want him to have their e-mail addresses. I suspect he is looking at blogs and will see this.
As to timing on a Review response, I think people should give them a break until next week. The 2L editors are away for the summer, and the author and old president graduate tomorrow.
Beth Chas
I just had one more thought. "McKelvey" is Irish, right? Does that mean a key founder of the Harvard Law Review was Irish? If so, no wonder his great grandson's pissed -- apparently, one of the May notes uses the statue in Cambridge Common, which is a memorial to the victims of the Irish potato famine, to make a left-wing argument totally unrelated to the whole point of the statue.
Some say it's a genocide memorial, which McKelvey mentioned. No wonder he's pissed: the Review was started by a survivor of the famine, and now it's dumping on a memorial to it?
What if we were in 2108, and the Review had been started by a Holocaust survivor, and the Review published something misusing a Holocaust memorial in Cambridge Common? Would that be okay? Maybe that's how Irish people see it.
JJM4 sounds like a clown.
If the student who wrote the Ames brief is also the author of the note, that should settle it.
Some people may be amazed to learn this, but if an appellate brief actually elucidates the facts in a helpful, relatively objective way, it can be persuasive.
I'm not impressed by JJM4's statement that the brief must not have been very good because it did not get the Best Brief award and because its arguments did not seem to persuade Scalia.
I wonder whether the blog is a serious venture and whether the author is using his/her/its own name. If I had more time on my hands, it's something I could see myself doing as an ironic response to Telfeyan's garbage.
More thoughts on the Note and the significance of its publication:
http://www.futureacademic.com/li...path=275&
id=211
Chiraag Bains has been "outed," by a fellow editor, in a comment on Above the Law as the author of the note which "borrowed" from an Ames brief written by Bains and 5 other students. Someone has googled Bains; he seems like an interesting guy (almost as interesting as that Phil whacko):
http://abovethelaw.com/2008/06/f...#comment-
608986
Scroll below for some editor's attempt to "back off" the outing and deny it's Bains, without giving an alternate name.
One would hope the Review would make some sort of official statement clearing the air. But I'm not holding my breath; it hasn't done that on the other note.
Christ, my entire current career is a result of my being randomly assigned to a sudden- acceleration case as my first assignment as an associate and being appalled at the abusive litigation and disingenuous judging and "safety" advocates.
Sudden acceleration! Jesus, no wonder you became all conservative.
Karma: you become an old man and accidentally hit the accelerator instead of the brake one day.
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