Are the Taking Rules the Same?

Several years ago, some lines from another law professor’s scholarship were discovered in a former colleagues own scholarship. My former colleague was not a popular guy and was not a household name. He was a very hard worker and terrific thinker. He lost his job and, to my knowledge, has not found comparable employment. I had no doubt that it was inadvertent. He tended to write everything on note cards and then incorporate it into his work and one thing led to another. Plus, as much as law professors are interested in whether they are cited, wouldn’t it be crazy to lift from their work?

If you have been in this business long you know the importance seeking out the other side of the story and getting the facts straight. Nevertheless, as I recall, the work or language of others has been found things written by Lawrence Tribe and, now, Ian Ayres (see today’s NYT’s book review section). In England, fiction writers Julian Barnes and, again, if my memory serves, Ian McEwan, have also had the words of others show up in their own work. Although McEwan and Barnes seem to argue that lifting from others was standard procedure, in the case of law professors I do not see how it can be anything but carelessness. It’s not, as if Tribe and Ayres need outside assistance when it comes to writing or ideas. Nor are the pressed enough for publicity to not be careful.

So what are the rules with respect to inadvertent copying? And are they different depending on how much people are liked or how high they are placed? My very small sample suggests they are.