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The Exploitation of Research Assistants by Law Professors

Brian Leiter

Gary Lawson (Law, BU)–who as readers know is always worth quoting–writes with some important observations that warrant the attention of law faculty:

“Your recent post on RAs and co-authorship deserves a thread. The failure of legal academics properly to credit co-workers (who are often relegated to polite mentions in star footnotes) is one of the great undiscussed scandals in this business – and considering the number of undiscussed scandals in this business, that is saying quite a bit. In every other discipline of which I am aware, students who work with professors receive appropriate co-authorship credit, even if they do not get mentioned as the principal researcher. But when you combine uncredited RAs with uncredited law review editors –- who, I gather, often do much of the grunt work for authors by filling in research – the situation in law schools cries out for inquiry.

“It is particularly important to raise consciousness on this issue because so many people in this business frown on appointments candidates whose articles are co-authored. In any rational discipline, co-authorship would be seen as a strong positive indicator of intellectual openness, collegiality, willingness to share ideas, and a host of other virtues that ought to be valued in academia. But how many times have you heard scholarship of candidates denigrated because it is – gasp – co-authored? I’ve heard it so many times that I want to puke, and I have gotten to the point that I am genuinely nasty every time that I hear it (it doesn’t stop people from saying it, by the way, but it gives me a lot of opportunities to vent my penchant for nastiness). I’d be curious to see if other people’s experiences on this score match mine.

“Having railed a bit, however, one ought to give due credit on this score to my old stomping grounds (and your favorite whipping boy): Northwestern. The senior research program at Northwestern, which allows third-year students to spend a good portion of their credits writing intensively with a faculty member, encourages a strong ethic of noting students as co-authors. I’ve co-authored with four different Northwestern students, and I plan to carry that over to BU; I have two student co-authors already committed to a forthcoming project. Steve Calabresi [at Northwestern] has also been exemplary, in my view, in giving co-authorship credit to students who everyone else in this business would have glossed over in star footnotes. It has no doubt hurt his career (by giving people who don’t like him on political grounds a neutral-sounding reason to diss him), but it has been the right thing to do.

“If I get riled up enough, perhaps I will write something and send it to the Journal of Legal Education. Information –anecdotal or otherwise — from your viewers might help on this score.”

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9 responses to “The Exploitation of Research Assistants by Law Professors”

  1. Dan

    Does it strike anyone else as odd that substantially the same conduct that would get a student busted under an Honor Code — and perhaps kicked out of school altogether — is tolerated from faculty? In the summer after my first year (almost 20 years ago, but I doubt things have changed much), I was a research assistant to a research assistant. I researched and wrote substantial portions of a couple of articles that I gave to the senior research assistant, who then took credit for it and passed it on to the faculty member. As I recall, at least one of these works ended up being published with my stuff appearing substantially verbatim. If a student engaged in the same practice, though, it would be a clear Honor Code violation under every Honor Code I've ever seen. Just what sort of message might this be sending to the students?

    Reply
  2. Stuart Buck

    Yes, one has to wonder how long a student would last at Harvard Law School if he had plagiarized a final exam, and his only excuse was that he didn't recognize a blockquote pasted in by the person he had paid to write the final exam for him.

    Reply
  3. Stuart Buck

    I should mention Jon Hanson as a stellar counter-example. During my time at Harvard Law School, I recall that he co-authored 3 pieces with one student assistant (Doug Kysar, now at Cornell), and recently co-authored another piece with a former student (David Yosifon). He told me once that he preferred to co-author every article because he enjoyed the synergy of exploring ideas with another person.

    Reply
  4. Les Green

    This is indeed a scandal, but acknowledgement and co-authorship are not always adequate remedies. I know of one eminent scholar who makes extensive use of research assistants, and who (as far as I know) always makes them his co-authors. I also know that some of his "co"-authors have in fact essentially written the piece, to which his own contribution is minimal.

    I am told that this practice is common in some of the sciences: the director of a lab will appear as co-author, and often lead-author, of work published by anyone in the lab. In law, this problem is more serious in some sub-disciplines than others.

    Reply
  5. Mike Selmi

    Gary Lawson's comments raise two different issues. 1. The generally inexcusable failure to provide proper attribution of the work of research assistants. I think in general most RA work does not rise to the level of co-author status, but when it does, it ought to receive proper credit. I would say that for most law school RAs, being a co-author seems to me far less important than it is in other disciplines since most RAs are likely primarily interested in letters of recommendation, contacts and some research experience rather than the potential value a co-authored piece might have in the academic job market. Obviously, that does not excuse failed attribution but it may help explain why there is not more co-authored work with students. 2. He also comments on the often irrational hostility to co-authored work, and I generally agree with his sentiments. But again, law seems to lend itself less well to co-authored work. In disciplines where co-authoring is common (sciences, economics, sociology), the work most commonly involves empirical work with the graduate students frequently doing the data collection under the principal author's watch, and the principal author's expertise is necessary to obtain the data, money, publication and insight. That is not always the case, but it offers a difference with law where co-authored works are sometimes just a divison of labor because the papers are so damn long or where the authors would have different expertise. It is unlikely that a student would have sufficient expertise to lend substantially to an article, though of course, we allow students to edit our works and publish notes on all sorts of topics. (I have co-authored papers, but never yet with a student.) And given that many law academics don't publish much, co-authoring can be risky — I mean if one only publishes two or three articles, they probably ought not to be co-authored.

    Reply
  6. Michael

    I worked as an RA for at 3 different professors. Here is how one professor used RA's to write his recently published book.

    Step 1. Prof. tells student, "I want to write about X for Y chapter of a book I'm working on."
    Step 2. Student assembles all of the research and writes the first draft of X.
    Step 3. Prof. red lines draft and returns to student.
    Step 4. Student updates chapter to reflect Prof.'s comments.
    Step 5. Rinse and repeat.

    Finally, the book is published and student gets a "thank you" either in the front of the book or at the footer of the relevant chapter. A nice gesture, but certainly less credit than the student (who actually co-authored the chapter) deserves.

    If I wrote [sic] a paper in this manner, I would be kicked out of school. I think it's a scandal, especially in light of law professors' penchant for beating the drum of legal ethics.

    Reply
  7. Michael

    Apropos my comment above – I still don't think that it's necessarily exploitive. The student usually knows what he is getting into. Plus, it's a good opportunity for the student to improve his legal writing under a seasoned mentor. Indeed, I learned a ton about writing working under the arrangment, above.

    However, the double standard bothers me. In 1L LR&W we're told that if we forget to put a quotation mark around a quote from another's work, that we risk censure and failure. Plagarism, at least as applied to law students, is a strict liability offense. A typo is okay if you merely misspell a word. A typo is not okay if you omit a quotation mark. I think that is grossly unfair, especially in light of the way professors (the judges in these "trials") use the work of their RA's.

    Reply
  8. Eric Rasmusen

    The distinction between a student who plagiarizes and a professor who relies entirely on research assistants is actually clear: If you pay a ghostwriter, you're not plagiarizing him. You may be guilty of some kind of fraud for claiming it's your own work, but it's not plagiarism.

    For a student, this kind of fraud is clearly forbidden. Student work has two main purposes, to evaluate the student and to teach him, and work-for-hire thwarts both. For a professor, the situation is not so clear. If a professor could keep generating good research by astute purchase, maybe that's not bad.

    Reply
  9. Mike

    If you pay a ghostwriter, you're not plagiarizing him.

    Not true. If you pay a ghostwriter, then you own the COPYRIGHT to the work. But that does not mean you CREATED the ideas.

    When a person puts his name on the byline, he is asserting to the world that he wrote it. [The owner of the copyright also puts his (c) sign someone on the book or article and is a different issue.] If he did not write it, then by definition someone else wrote it. If someone else wrote it and is not obtaining credit for it, it's plagarism. I really don't see how you can mistake legal OWNERSHIP with CREATION.

    Reply

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