Books

      The Little Book of Plagiarism
      There are very few lawyers, and even fewer judges, who write with an original style; Judge Richard Posner of the Seventh Circuit is one of them. When Judge Posner fires off a flaming opinion?usually directed at some clumsy hay bale of a legal argument?it travelsacross email like wildfire. The most withering, incinerating phrases are highlighted, circulated, and repeated with zeal. Sharing these uncopyrighted words is not plagiarism, of course, because Judge Posner's authorship isn't concealed. But suppose someone did pass off Judge Posner's words without attribution; what would be the harm? Judge Posner doesn't get paid based on the originality or popularity of his opinions, so there would be no monetary loss. And if the concern is "integrity," well, frankly, we don't even know how much of a Posner opinion is truly Judge Posner's original work. Judicial opinions draw on many uncredited sources of ideas, thoughts, research, and phrases?including other judges' opinions, lawyers' briefs, and law clerks' memos and drafts. So why should we hate plagiarism or, more accurately, condemn some copying of phrases as plagiarism but not others? Apparently Judge Posner wonders about that too. In typical Posner fashion, he has written a sharp, brilliant little book on the subject of plagiarism?of new takes on old ideas and old takes on new ones?that is sure to make the rounds.
      The use of others' words without attribution is?at some level?the basis of all communication. We accumulate words and ideas from others, and eventually our memory becomes a vast dying sea from which we fish for our "original" thoughts. We hear a phrase or quote that we like and we use it. "Vast dying sea," for example, is a phrase I lifted from John Updike (or, more accurately, from a book by Nicholson Baker in which he laments not being able to write Updikean phrases like "vast dying sea"). Sometimes this creative repetition makes a career?as when MC Hammer took a riff from Rick James's Superfreak and put it in U Can't Touch This. Sometimes it screws up a career?as when historian Stephen Ambrose was caught passing off verbatim passages from Thomas Childers as his own. Sometimes it is just dumb: The drafter of the University of Oregon's plagiarism policy was caught plagiarizing that plagiarism policy from Stanford. And sometimes?as in a judicial opinion or a book review?it doesn't really make a bit of difference to anyone at all whose words you use.
      Judge Posner is drawn to the ambiguity of plagiarism, possibly because those difficult fault lines are the least charted. Upon arrival, he quickly dispenses with the old map. For a start, he urges, we have got to stop calling plagiarism "theft" because it simply isn't. Theft is when you take away others' property so that they don't have it anymore. Plagiarism victims never lose their original work. Rather, plagiarists are frauds?they pass off another person's work as their own. But plagiarism is nonetheless an uncommon sort of fraud, where sometimes there is not an obvious victim. Joe Biden was driven from a presidential bid in 1988 for passing off British politician Neil Kinnock's words as his own. But, as Posner notes, Kinnock's speech was probably just ghostwritten by one of his staffers, and thus Kinnock was not really harmed; arguably Biden should have been able to use those words as much as anyone else. It was actually Biden's denials of intentional copying that?in Posner's view?did him in.
      Until modern times, in fact, society embraced the view that another person's stories and phrases were fair game. Writers expected that the better ideas would be used, borrowed, played with, and repeated as much as possible, because originality itself had little value. Thus, Shakespeare took much of Romeo and Juliet from a narrative poem, "Romeus and Juliet," written by Arthur Brooke, who in turn took it from Ovid's "Pyramus and Thisbe." (Where Ovid got the idea is anyone's guess.) Posner attributes our relatively recent fixation on "originality" to market forces. He claims that, unlike in Shakespeare's time, authors now make their money from the masses (rather than from a handful of indulgent patrons). And our culture elevates individual identity. Our public is no longer composed of illiterate serfs living at the sufferance of some inbred king, but rather we are individuals who wish to be acknowledged for our unique contributions. In this new culture, originality is at a premium, and those who take credit for another's original work?good or bad?are pariahs. Indeed, some professions, especially journalism and literature, have set themselves up as sentinels of originality that enhance their reputations by severely punishing those who transgress.
      As Posner's book reveals, people's motives for plagiarizing are simple, but our reasons for punishing them are more complex and require deeper consideration. People plagiarize because they just don't have the time, talent, or motivation to be original (but they want the world to value them anyway). But in "alluding to," "homaging," "patchwriting," "incorporating," "elaborating," or "popularizing," others' words, sometimes writers add value and cause little harm. Posner urges us to be rational and respond to these various forms of plagiarism in proportion to their actual cost or benefit. So we shouldn't condemn judges who draw from various sources to make opinions, because in judicial opinions originality has little value. If anything, we expect judges who are tasked with applying existing law to be as unoriginal as possible.
      By contrast, we should punish student plagiarists sternly because students are graded on the quality and originality of their thought; when they turn in another's (better) work as their own, they distort the grading curve and depress the grades of more deserving students. Somewhere in between lie all the other forms. Some recent examples of verbatim literary plagiarism caused real harm, either by taking away wealth and fame from the actual author or by duping people into buying other works based on a false confidence in the writer's skill. Other imitators, however, provide great value with little harm, as when the screenwriter of Clueless repopularized Jane Austen's Emma, or when a master such as Shakespeare improves on the original work of an Arthur Brooke.
      Posner's point is to remind us that using others' words without attribution is not inherently bad; rather, we must give each distinct form of plagiarism "cool appraisal rather than fervid condemnation or simplistic apologetics." Although that idea probably is not entirely original, it is still valuable. So Judge Posner deserves credit for this book and the many provocative ideas it contains?regardless of whether he thought of them all first. ?Jeff Bleich is a partner at Munger Tolles & Olson in San Francisco
     
      The Wicked Son: Anti-Semitism, Self-Hatred, and the Jews
      Schocken Books, 190 pages, $19.95 hardcover
      By David Mamet
      In spite of all the success American Jews have enjoyed over the past half century, not all successful Jews have bought into the notion that we are living in what Alan Dershowitz calls "the post-persecution era of Jewish history" (see "The Vanishing Jewish Lawyer," California Lawyer, September 1997). Indeed, for some, even winning a Pulitzer Prize is not enough to make the world look more hospitable.
      In The Wicked Son: Anti-Semitism, Self-Hatred, and the Jews, Pulitzer Prize?winning playwright David Mamet starts out with a very simple premise. "The world hates the Jews," he writes. "The world has always and will continue to do so."
      In this slender collection of plaintive essays, Mamet doesn't have anything very interesting to say about the history of anti-Semitism. Nor does he provide much of an exposition on the nature of Jewish culture. What he does manage to express quite forcefully, though, is his frustration, anger, and sadness over Jews like myself who, by succumbing to the temptations of assimilation, have betrayed both their faith and their culture. We are the apostates he is writing about here. We are his "wicked sons."
      Not that Jews like us haven't heard it all before. (What Jewish son from an observant background hasn't heard it all, once his attraction to the much-feared shiksa becomes painfully clear?) But Mamet states these views with a zeal that would put many of our own mothers to shame. There's the argument that goes: "You may think the non-Jewish world accepts you, but it really doesn't." And then, of course, there's the assertion that assimilation equals self-loathing. "Perhaps five or ten more generations of nonobservance may eradicate the Jew's need to belong," Mamet speculates. "Perhaps some future being may say, 'You know, we have Jewish blood in our family,' in the same way that a contemporary Anglo may brag, 'My great-great-grandmother was a Cherokee'; but today we are too close to five thousand years of observance, too close to the immigrant generations, too close to the Shoah for any lapsed Jew to feel anything other than self-loathing or its doppelgänger, arrogant assurance of his escape."
      In the name of preserving the faith, Mamet comes down hard on those who would challenge the orthodoxies on which they are raised?on the face of it, an odd position for a writer to take. "What does [the wicked son] hope to gain by his supposed freedom?" he asks. Nothing good, he promises.
      To be sure, Mamet has good reason to worry about the survival of Jewry, if only because the world appears to be running out of Jews, due to assimilation and low birth rates. Here in the United States, the Jewish population is down to 5.2 million, which is less than 2 percent of the country as a whole. And in the world at large there are now only 12.9 million Jews, down 300,000 from a decade ago, according to the Institute for Jewish People Policy Planning.
      So what, if anything, should a good Jew do? Mamet's strategy, it seems, is to harangue the wavering apostate back into compliance. But it's hard to imagine how that could possibly be enough to save lost souls.
      In the final analysis, a community is only as good as its most cherished values. Values such as social justice, compassion, and spiritual enlightenment?all of which happen to be very Jewish values. Unfortunately, as we've seen before and as we're seeing now, those who would most passionately defend their religion or culture are not always its best advocates?especially when their advocacy turns to xenophobia. To improvise on a line once delivered by Barry Goldwater, whose Jewish father married an Episcopalian: Extremism in the defense of tribalism is no virtue. ?Martin Lasden
     
      The Curmudgeon's Guide to Practicing Law
      Section of Litigation, American Bar Association, 135 pages, $34.95, softcover
      By Mark Hermann
      On paper, at least, Mark Hermann is not much of a curmudgeon. He is neither ill-tempered nor churlish, but he is plainspoken, direct, terse, and occasionally contrarian. He writes like a person who expects serious attention, even obedience, because his little tome is a guidebook for beginning litigation associates at large law firms. (Hermann does class action and tort litigation in Jones Day's Cleveland office.) The book, much of its material previously published in professional magazines, packs a lot of advice into a few pages. Some of this advice?about thoroughness, use of time, and how to build an "internal market" for your services within a firm?makes sense, like the book's price tag, mostly in the big-firm, large-case context, where money is not much of an object. And some of it might get a skeptical reception at his own firm. ("At this law firm, you have no obligation to bill time," he writes.) But much of it is sound, commonsense counsel for anyone in the profession.
      There are chapters dealing with depositions, oral argument, billing persuasively, and how a junior associate should research and write for senior attorneys. The chapter on working effectively with assistants (the artists formerly known as secretaries), coauthored by Hermann's assistant, Laura Bozzelli, preaches mutual respect and mutually high but realistic expectations. The rules in the "How to Write" chapter are, for the most part, excellent, even if they are put forward with an emphatically rigid insistence that is probably born of years of reading unreadable memos. He even devotes an entire chapter to professional manners, focusing mostly on useful and considerate phone messages and emails.
      Hermann is the most fun when he rams conventional wisdom, as when he notes that the experience of law school exams, rather than being poor preparation for practicing law ("Cram a lot of irrelevant crap into your head for two days; spill it all out in an hour or three; forget about it, and move on to the next set of irrelevant crap"), is pretty much like the experience of arguing a motion, taking a deposition, or trying a case. And his chapter of "definitions" is a good imitation of Ambrose Bierce's Devil's Dictionary ("Directors and Officers liability insurance: Paying a premium now for the right to sue your insurance carrier later." "Deposition, defending: Seven hours locked in a room with a compulsive talker and a sociopath." "Deposition, taking: Seven hours of pretending to be a sociopath while locked in a room with an amnesiac and a compulsive obstructionist."). It's the sort of book you can read quickly and find yourself going back to for a second helping. ?Howard Posner is a California Lawyer contributing writer
     

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