Leiter Reports: A Philosophy Blog

News and views about philosophy, the academic profession, academic freedom, intellectual culture, and other topics. The world’s most popular philosophy blog, since 2003.

  1. Jason Stanley's avatar
  2. Daniel Greco's avatar
  3. Nobody's avatar
  4. Roger of Invisible America's avatar
  5. Santa Monica's avatar
  6. Optimistic about LLM's avatar
  7. Ben M-Y's avatar

Roscoe Pound, Plagiarist?

Brian Leiter

Several months back, the Harvard Law School was racked with faculty plagiarism scandals.  Roscoe Pound was, of course, one of the great figures in the history of Harvard Law School, and a major influence in American legal education and scholarship.  But now Professor Brian Tamanaha (Law, St. John’s) writes:

I recently read Roscoe Pound’s book, The Lawyer from Antiquity to Modern Times (1953), and discovered several passages which appear to be lifted, without attribution, from Charles Warren’s A History of the American Bar (1911).  The offending passages came in a discussion of the drop in status of lawyers after the Revolution.  Warren’s account is the standard resource on the subject.

Here is Pound’s statement (p. 178):

“Unhappily, a large number of the older and stronger lawyers were loyalists and left the country or ceased to practice.”

At the end of this sentence, Pound cites Warren’s book, p. 213, which reads:

“In the first place, a large number of the most eminent and older members of the Bar, being Royalists, had either left the country, or retired from practice.”

So far Pound is doing okay.  But then, with no citation to Warren, Pound continues (p. 178):

“Thus one result of the Revolution was to leave or put the practice of law chiefly in the hands of lawyers of a lower type and of less ability and training.”

Warrren’s passage (p. 214):

“This left the practice of law very largely in the hands of lawyers of a lower grade and inferior ability.”

Being charitable, we could say that Pound was paraphrasing Warren, and didn’t need to cite him again so soon after an earlier attribution.  But that does not explain what follows:

Pound, with no citation (p. 179):

“Public debts were enormous and required ruinous taxation.”

Warren (p. 214):

“Public debts were enormous, necessitating ruinous taxation.”

Oops, I can’t think of any charitable interpretation for that one, or the one that follows:

Pound, with no citation (p. 179):

“The chief law business was collection of debts and recovery of property held under confiscatory tax.”

Warren (p. 214):

“The chief law business, therefore, was the collection of debts and the enforcement of contracts…”

In Pound’s favor, at the end of the final sentence of the discussion, he included the following footnote (p. 180): “This is well brought out in Warren, History of the American Bar, 214-217.

It is obvious that Pound sat with Warren’s book when he wrote his book.  That is not objectionable (we all do that to one extent or another).  But Pound borrowed liberally from the ideas and words (I have left out more paraphrasing in those pages), giving the impression that they were his own.  Without doubt, this would violate our plagiarism policy. 

Among other interesting questions this raises, are the following:

How often did Pound (who published an extraordinary amount on a range of subjects) do this?

What does this say about his work?  Should it diminish his reputation?

Was it considered improper at the time?  Have our citation practices become stricter?  If so, why? 

Is the plagiarism issue overblown anyway (I think not, but wonder)?

Comments are open; no anonymous posts.

Leave a Reply

Your email address will not be published. Required fields are marked *

4 responses to “Roscoe Pound, Plagiarist?”

  1. Matt

    I wonder how much of this sort of thing is due to doing a bad job of taking notes. I know that I've been careless at times, when taking notes while reading a book, in distinguishing my paraphrases from quotations. Then, when I've looked back at the notes, I've not been sure what was quotation or near quotation and what was my thoughts. Thankfully I've then gone back and checked, but I can see how this sort of error might happen on accident. Of course I have no idea if this happend in this case. Perhaps there is too much of it in the above case to be plausible. But, it seems like a possible explination w/o needing to attribute any ill motives.

    Reply
  2. Tony D'Amato

    One has to take into account the unbelievable hubris that infected Harvard Law School in the days of Roscoe Pound. In the extreme case, an outside scholar whose ideas were stolen by a Harvard Law Professor was expected to regard the theft as a compliment. For, after all, the outsider's ideas had actually affected and even changed the thinking of a superior authority figure. That, surely, was reward enough.

    Against that background, Pound adopted a middle position that was more characteristic of the majority of Harvard professors. They would use someone else's ideas yet acknowledge the use by occasionally dropping a footnote to the source. Not too many footnotes, for that would make the writer's text seem entirely derivative. But enough to signal to the reader that there was an outsider whose writing was valuable enough so that it deserved modest credit in the Harvard professor's work.

    Thus, in light of the practices of his day, Pound was being rather generous in his citation credits of Charles Warren. Perhaps a grain of salt needs to be added here: Warren was also a Harvard man, and his book was quite familiar to Pound's readers. Thus Pound's motives in the particular instance cited by Professor Tamanaha may have had a self-protective coloration.

    I've always thought that Pound was vastly overrated. Compare him to his contemporary John Wigmore. Both Pound and Wigmore were historians and sociologists of many legal systems around the world. Their output was enormous. But the difference was that Wigmore was analytical and original. Many of his theories have since been falsified. But they were at least falsifiable. In contrast, Pound played it safe.

    During their lifetimes, Pound had, in many quarters, the superior reputation. After all, he was at Harvard Law School, whereas Wigmore, for all anyone knew, lacked the talent that Harvard required when it made appointments to its faculty. Reputation-wise, being on the Harvard faculty was largely a self-fulfilling prophecy.

    Reply
  3. Al Brophy

    In the nineteenth century the standards for citation were substantially different from today. For instance, one frequently finds courts in the antebellum era (whose libraries were often quite small) lifting passages (including citations to cases) without attribution from Kent's _Commentaries_. You see this sort of lifting of phrases without attribution all the time in antebellum legal literature. That's actually one of the things that makes it difficult to write intellectual history in the antebellum period: it's hard to know where people are getting their ideas. I think the citations continued to be sparse well into the twenthieth century, when Pound received his training. (_The Lawyer from Antiquity to Modern Times_ was published when he was 83, I think.)

    It sounds like the charge against Pound is that he didn't have enough citations to Warren. One issue here is whether one reading Pound would have a sense of where Pound's sources. Is it relatively clear from the citations (even if not from the particular footnotes) that Pound was drawing from Warren?

    As long as we're talking about HLS professors, didn't Alan Watson discuss some of Justice Story's appropriation of translations of European authors in _Justice Story and The Comity of Errors_?

    Reply
  4. Steve Marsh (Ethesis)

    Warren was also a Harvard man, and his book was quite familiar to Pound's readers

    I think that may be the key. I remember talking with a member of Pugwash about a law review article she wrote, and how silly she thought it was that the editor went back through and tossed in citations for obvious things.

    Interesting thoughts here, though.

    Reply

Designed with WordPress