Retraction Watch

Tracking retractions as a window into the scientific process

Supreme Court nominee Gorsuch lifted from earlier works in his scholarly papers: Report

with 18 comments

U.S. Supreme Court nominee Neil Gorsuch appears to have borrowed material from multiple authors in his 2006 book, according to a new analysis by Politico.

This week, U.S. lawmakers are going head-to-head over the nomination of Gorsuch to the highest court in the land. Although the book is only one snippet of Gorsuch’s vast portfolio of writings, six independent experts contacted by Politico agreed that the flagged passages appear problematic.

Here’s more about documents obtained by the media outlet:

The documents show that several passages from the tenth chapter of his 2006 book, “The Future of Assisted Suicide and Euthanasia,” read nearly verbatim to a 1984 article in the Indiana Law Journal. In several other instances in that book and an academic article published in 2000, Gorsuch borrowed from the ideas, quotes and structures of scholarly and legal works without citing them…Instead, Gorsuch often acknowledges the primary sources cited by those writers.

The White House defended Gorsuch, arguing to Politico that the allegations represented a “false attack.”

The article includes text snippets so readers can compare the similarities. Although some instances seem more obvious than others — for instance, duplicating most of a sentence (just changing one word) — other examples of potential overlap are less straightforward. And while six independent experts who spoke to Politico condemned Gorsuch’s practice, other experts provided by the White House defended it. What’s more:

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.

We’ve wondered before about how much text overlap is okay — for instance, should authors rewrite the same methods and disease description over and over, just to avoid being dinged for plagiarism or duplication, when there’s only so many ways to say it? What if they just used quotation marks? Would reviewers and editors take that as a sign that the work wasn’t otherwise original, and reject it? And is lifting words less harmful than lifting ideas?

As Robert George of Princeton University — the general editor for Gorsuch’s book publisher, and one of the experts offered by the White House in support of the nominee — said in the article:

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…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.

However, Miguel Roig of St. John’s University — a member of the board of our parent non-profit organization, who’s written extensively about plagiarism in academic writing — told us he believes the amount of overlap flagged in Gorsuch’s book is indeed plagiarism, and a problem:

Yes, I absolutely agree that this is problematic writing. If a student of mine were to submit a paper with this type of text similarity, I would classify the matter as plagiarism. Of course, an important question is the ratio of questionable text to the ‘whole’ of the work.

Whether there are different standards in legal writing, it seems to me that law journals and books, especially a book written for a general audience, fall under the umbrella of academic writing. While some of the technical phrases in the example given in the article (i.e., esophageal atresia with tracheoesophageal fistula) might be tolerable in a paraphrase, I cannot imagine a legitimate journal or book publisher tolerating the type of textual borrowing shown in the article.

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Written by Alison McCook

April 5th, 2017 at 2:00 pm

Comments
  • Oliver C. Schultheiss April 5, 2017 at 2:27 pm

    I haven’t read any of Mr Gorsuch’s books and so cannot comment on whether he plagiarized or not. But clearly, the statement by the White House representative “that the criteria for citing work in dissertations on legal philosophy is different than for other types of academia” is not valid. In Germany, we had the high-profile case of a federal minister of defense, Karl-Theodor zu Guttenberg, who had to step down due to plagiarism in his dissertation, which was about “Constitution and Constitutional Treaty”. He also lost his doctoral degree in law in the process. (More about this case here: https://en.wikipedia.org/wiki/Karl-Theodor_zu_Guttenberg)

    So no — citing your sources is important, whether your work is in law, medicine, or physics. It would be kind of ironic if of all sciences law were the one that would be given a special treatment…

    • Debora Weber-Wulff April 5, 2017 at 3:19 pm

      The plagiarism documentation about Karl-Theodor zu Guttenberg can be found here:
      http://de.guttenplag.wikia.com/wiki/GuttenPlag_Wiki

    • Michael Servetus April 9, 2017 at 10:32 am

      First, I much am further to the left than Justice Gorsuch. And recently, I read his book and differ greatly on his conclusions. He probably has never cared for a dying patient.

      However, opinions aside, what you say may be true in Germany but not in my experience in the US. I am an academic physician who also went to law school, with publications in both fields. The standards of citation in law far differ from those in medicine.
      In addition, this is a book, which would also have different standards than an academic work.

      Adding the info from what Mr. Russ White states in his post, then it is hard to convict of plagiarism.

  • Rudolf Jones April 5, 2017 at 2:31 pm

    I have a related question. If material (table, figure, etc.) from previously published work is to be reused in a new paper, permission from the copyright holder is obviously necessary. But how much change to that previously published material is needed before “Adapted from…” can be used instead? Would a table need to be completely reformatted, or would simply omitting some material from the original table be sufficient? Would adjusting the color scheme on a figure be sufficient?

  • Larry Miller April 5, 2017 at 2:35 pm

    Portions of the 1984 Indiana Law Journal article (cited by Politico) as being directly lifted and copied in Gorsuch’s 2006 book are word-for-word matches to his 2004 thesis. See(http://www.politico.com/story/2017/04/gorsuch-writings-supreme-court-236891). I noted that Gorsuch’s 2006 book was based upon the thesis he submitted in fulfillment the requirements of his 2004 doctoral degree from University College, London. His thesis is readily available online (The Right to Receive Assistance in Suicide and Euthanasia, with Particular Reference to the Law of the United States), so I took a few minutes to examine the passages reported as plagiarized by Politico and found that they also appear word for word without citation in his doctoral thesis. I haven’t directly compared the Gorsuch book with the Indiana Law Review article, but assuming that Politico correctly identified plagiarism in the Gorsuch book, then the same plagiarism is present in the 2004 thesis upon which the 2006nbook is based. Plagiarism is in direct violation of University College’s policy. Seems to me that this could potentially result in officials there reconsidering his degree.

  • J.Paul Robinson April 5, 2017 at 2:58 pm

    Rudolf Jones
    I have a related question. If material (table, figure, etc.) from previously published work is to be reused in a new paper, permission from the copyright holder is obviously necessary. But how much change to that previously published material is needed before “Adapted from…” can be used instead? Would a table need to be completely reformatted, or would simply omitting some material from the original table be sufficient? Would adjusting the color scheme on a figure be sufficient?

    I dont know the answer to this but its definitely an important question. I recently wrote a book chapter in which I used a figure from a 1962 edition of Am J. Hematology. It cost me $188 royalty fee to get permission. I seriously considered making a cartoon of the figure as it was a simple figure. Had I done so, I could have made a color figure, and shown it as a modificaiton of the original (monochrome) of course with a direct reference to the original figure – and in such case it is interesting to wonder would I have to pay a royalty on a paper published 55 years ago….(apparently Am J Hematol maintain copyright ownership on all past materials regardless of age)

  • Dave Burton April 5, 2017 at 4:00 pm

    Re: “…Instead, Gorsuch often acknowledges the primary sources cited by those writers.”

    It seems to me that to judge whether Gorsuch’s citations were proper requires comparison, not just of his thesis to the 1984 ILJ article, but also to those primary sources. If the passages in question in the ILJ article were not original, but were actually just paraphrases of other material, then citing the original sources was the proper thing for Gorsuch to do.

    • TL April 6, 2017 at 4:41 am

      You can’t lift entire paragraphs, including citations to original sources, then slightly massage the text to evade direct text comparison algorithms. RW is replete with examples of lazy review articles that have been rightfully retracted for such plagiarism.

      So far the only people who think it’s not plagiarism appear to be the publisher’s representative and the White House of Alternative Facts.

    • Paul S. Meade, M.D. April 6, 2017 at 2:55 pm

      That is a question that I also considered. How original was the statements that Gorsuch “lifted”?

  • hyd April 5, 2017 at 4:35 pm

    Perhaps it means more political than academic. I feel sorry for what is happening in this country. People are just not getting it.

  • John Mark Ockerbloom April 6, 2017 at 1:50 pm

    J. Paul Robinson writes: “Apparently Am J Hematol maintain copyright ownership on all past materials regardless of age”.

    At least in the US, you had to renew copyrights secured before 1964 or they would expire. (The copyright office has more information on renewals at https://www.copyright.gov/circs/circ15.pdf ).

    I do not find any copyright renewals for 1962 issues of the American Journal of Hematology in the Copyright Office’s databases. (Original registrations, yes; renewal registrations, no.)

    It’s in theory possible that a separate copyright registration was made for the figure in question or the article in which it appears. There might also be some basis for continuing to claim a copyright in some other countries, depending on the country and the circumstances. But I wouldn’t necessarily assume that a journal claiming a copyright actually has one it can validly claim.

    • John Mark Ockerbloom April 6, 2017 at 1:53 pm

      (Followup: The American Journal of Hematology appears to only go back to 1976. I do not know offhand if there was a predecessor publication owned by the same publisher; if so, I have not checked the renewal status of that publication, not knowing the title in question.)

      • Lee Rudolph April 6, 2017 at 3:46 pm

        The Editor’s Note in the first issue of the first volume bears the title “WHY A NEW HEMATOLOGY JOURNAL?”, and its <a href="full text bears out the declarative sentence implicit behind that interrogative sentence: as of 1976,

        In spite of these advances, in the United States only one general hematological journal, “Blood,” has served the needs of hematologists. […] Many of us thus felt a real need for another hematological journal in the United States […].”

  • Russ White April 7, 2017 at 9:01 pm

    One small problem — the original author of the piece supposedly copied said she doesn’t think they are actually copies from her paper, but rather just citations from the original opinions.

    Maybe just a little bit of confirmation bias showing in the Retraction Watch universe?

    http://freebeacon.com/politics/author-defends-gorsuch-from-accusations-that-he-plagiarized-his-2006-book/

    • John Mashey April 17, 2017 at 7:32 pm

      A big problem: Kuzma didn’t look very hard. 82% of the words in Gorsuch’s “baby Doe” section were copied identically, in-order from Kuzma, then he did trivial edits and moves that somewhat diminished the neutral tone of Kuzma’s piece. See Gorsuch (2004, 2006) From Kuzma(1984) – Classic Copy-Paste-Edit In Color, which has both the main text and the footnotes, where he cited a sealed ruling from 1982, when he was ~15.

      Politico did a nice job finding this (the hardwork!), but their highlighting style doesn’t make the copy-edits as obvious, and they missed fact that Gorsuch’s 1st sentence came from Kuzma p.377, not p.378, where it’s not quite the same.

    • Miguel Roig April 17, 2017 at 4:43 pm

      Thank you for posting this analysis. As you say in the article: “Justice Gorsuch will be on SCOTUS for many decades and nothing here will change that …”. Be that as it may, we should expect some sort of acknowledgement on Justice Gorsuch’s part, a correction of these lapses by the publishers, and for everyone to just move on.

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