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Thursday, July 10, 2008

The Rise and Fall (and Rise Again?) of a Law Professor

Last fall I stood dumbfounded in front of my law school mailbox, a copy of the Supreme Court Economic Review in my hands.  The first item in the table of contents of this illustrious, Chicago-based annual law journal was a note from the editors retracting in full a previously published article.  The offense: substantial portions of the earlier article were lifted from another article without attribution.  The plagiarizing author was George Mason University School of Law’s Michael O’Neill, who apparently included in his article passages that were nearly identical to an earlier article published by another law professor in the Virginia Law Review. 

I had never before seen a complete retraction of an article in a law review, so I assumed that the plagiarizing was extensive.  When I looked up Michael O’Neill’s George Mason web page, the significance of this misconduct was implied by his bio.  O’Neill, it said, was on leave from the law school “to serve as Chief Counsel for the United States Senate Judiciary Committee.”  What?  A plagiarist serving as chief counsel?!?  Couldn’t be, I thought.  The Senate Judiciary Committee would never stand for such dishonest behavior.  Well, I was right and I was wrong.  Turns out O’Neill had long ago quit the Committee.  George Mason just didn’t know what to say about a professor on permanent leave – he gave up his tenure when the plagiarism charges arose – and maybe it just sounded good to list such an illustrious position.

One might be forgiven for thinking that such substantial plagiarism to earn a complete retraction – rather than, say, a correction for an omitted citation or two – would be a significant hurdle to O’Neill. But guess what? O’Neill has now been nominated by President Bush to become a lifetime tenured federal district court judge!

Now I’m always happy to hear a law professor elevated to the bench. And Michael O'Neill may be a great guy. But this is remarkable. Michael O’Neill has plainly violated basic rules of legal ethics. ABA Model Rule 8.4 quite clearly states that “it is professional misconduct” to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Those four words capture O’Neill’s conduct in this case perfectly. Plagiarism is dishonest, fraudulent, deceitful, and misrepresentative. And, it turns out, O’Neill has done it before; although O’Neill claims his copying was am inadvertent mistake, several other instances of his plagiarism have since been uncovered.  Even worse, President Bush was made aware of this pattern of dishonesty before nominating him.

Isn’t it remarkable that the standards for a judicial appointment are less demanding than the standards to maintain tenure at a law school?

Posted by Adam Winkler on July 10, 2008 at 11:05 AM in Current Affairs | Permalink


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From the NY Times article:
"The idea of O’Neill committing a theft is just impossible. It’s just impossible." Dean Polsby of GMU and the SCER.

"By agreement, by a handshake," Dean Polsby said, “he stepped away from tenure and will reapply for it."

"[T]he law school’s investigation concluded that his conduct had not been willful." Describing Mr. O'Neill's comments regarding the decision to step away from tenure.

From Prof. Winkler:
"Having made no independent review, I am willing to rely on the conclusions of those who have."

So that settles that, right?

Posted by: JP | Jul 11, 2008 2:32:52 PM

Pipe down, Mr Perfect

Posted by: Christine | Jul 11, 2008 11:57:41 AM

I wonder what the law professors here would have done if this degree of plagiarism had been done on a paper for their classes. I strongly suspect that if this had happened with a student 3 or 4 times (or whatever it was)that the student would, at the very least, be suspended for a year and probably would be expelled. At the very least the character and fitness interview would have been white-knuckle. I can see how such things can happen by accident, though the number of times is pretty high. Would you all have been so ready to excuse a student who did this, though? The plain wording of the honor codes at most law schools would seem to call for a person who did this this many times to be thrown out, though. Do you think such codes should be revised or do they not apply once one is no longer a student?

(My impression on the Tribe and Ogletree cases was that the real scandal was that the bad deeds had almost certainly been done by their research assistants who were effectively ghost-writing the books w/o proper credit. I've not seen that alleged here so don't know if it might be the case that O'Neil also didn't "write" the things in question. That's quite a shameful practice, too, but in some ways a different one.)

Posted by: Matt | Jul 10, 2008 8:18:38 PM

As the current co-editor of the Supreme Court Economic Review, I just want to point out that it is not a "Chicago-based journal." It is published by the University of Chicago Press, but has always been based at George Mason Law School, and edited by designated members of the GMU faculty. The decision to retract Prof. O'Neill's article was made by my predecessors as editors - GMU professors Francesco Parisi and Lloyd Cohen.

Posted by: Ilya Somin | Jul 10, 2008 5:44:26 PM

What is the possible "charitable" interpretation of O'Neill's plagiarism? The two institutions with the most at stake here -- the Supreme Court Economic Review and George Mason law school -- investigated the matter and determined that the plagiarism was sufficiently serious to warrant extraordinary sanction. The journal completely retracted the article, to considerable editorial embarrassment. Retraction, rather than correction, suggests a serious violation of academic norms. The law school made him give up tenure, an extraordinary measure reserved for serious misconduct. Having made no independent review, I am willing to rely on the conclusions of those who have.

Posted by: Adam Winkler | Jul 10, 2008 5:29:16 PM

Adam R., you're right of course that he needs to be unoriginal correctly, but my sense is that most judges -- Justice Blackmun's late years notwithstanding -- are not themselves doing legal research or even checking up on their clerks' work to make sure they got it right. If you have a reasonably good judge, they will probably not do much more than read the briefs and have a discussion with the lawyers and the clerks. No reason to think O'Neill would fail that standard...and the fact that he has written a bunch of articles in which he's sloppily plagiarized suggests at least that he does read :-)

Posted by: Dan Markel | Jul 10, 2008 4:19:53 PM

"And heading to the bench, well, I'm not sure it's a good nomination on the merits, but Jeannie Suk's HLR note from a few years ago on originality suggests that, in light of this controversy, the bench might be an apt place to go. After all, lower court judges, unlike scholars, are supposed to pride themselves on just following the law and not thinking originally..."

Prof. Markel, if O'Neill was inattentive enough to let slip these numerous instances of plagiarism, maybe that indicates he won't be the most comprehensive legal researcher, or at least he won't diligently check up on his clerks' research. Even if these episodes evince O'Neill's ability to be unoriginal, he has to have the right law in front of him to be able to be unoriginal correctly.

Posted by: Adam Richardson | Jul 10, 2008 2:32:34 PM

Adam, I don't know the guy at all. But I can't see from Liptak's article and accompanying chart whether the amounts of stolen material are so substantial as to create an inference of willful deceit; if the chart is indicative of all or much of what he took, it seems, as Katyal (one of the "victims") said, that what was lifted is pretty banal --why steal those? Chances are it's the same sloppiness that Tribe and Ogletree evidenced earlier too.

More, the fact that he resigned his tenure suggests he was willing to endure some sanction in the relevant community. And heading to the bench, well, I'm not sure it's a good nomination on the merits, but Jeannie Suk's HLR note from a few years ago on originality suggests that, in light of this controversy, the bench might be an apt place to go. After all, lower court judges, unlike scholars, are supposed to pride themselves on just following the law and not thinking originally...

I don't really have a dog in this fight, but I just think maybe we should harness the inclination to valorize judges, when, as this case shows, they are just lawyers, sometimes smart ones, with friends in the right places. Besides, I don't know too many academics who would trade places to be a judge. Hard as I work, and lately it's been insane, I continue to believe the job is a loophole in life.

Posted by: Dan Markel | Jul 10, 2008 1:45:18 PM

I don't know Mike O'Neill, but why not take a charitable interpretation of what he did? His transgressions seem basically identical to Laurence Tribe's and Charles Ogletree's. http://www.thecrimson.com/article.aspx?ref=503493 (Tribe) & http://media.www.hlrecord.org/media/storage/paper609/news/2004/09/24/News/Ogletree.Admits.To.Plagiarism-731271.shtml (Ogletree). On my reading of what each of O'Neill, Tribe, and Ogletree did, the explanation for their differing treatment, tenure-wise, is in the way their schools view this kind of negligent plagiarism, not in the severity of the underlying offense. If a President Obama were to nominate either Tribe or Ogletree to the district court in Boston (or to a higher court), I'm sure some would suggest that his negligent plagiarism was dishonest, fraudulent, deceitful, and misrepresentative. Would it be fair for someone to conclude that either nominee was unfit for the appointment because of the plagiarism or that a President Obama had low standards for selecting nominees?

Posted by: Anon | Jul 10, 2008 12:43:17 PM

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