Bench Memos

Law & the Courts

Bastardized Charges

Surprise, surprise. Another desperate 11th-hour smear, something that appears to have become a rite of passage for Republican Supreme Court nominees.

Someone (David Brock, call your office?) is shopping around to news outlets baseless claims that Supreme Court nominee Neil Gorsuch committed acts of plagiarism in four passages in his 2006 book The Future of Assisted Suicide and Euthanasia. Multiple academics who have reviewed the charges—including one of Gorsuch’s imagined victims—have rejected those claims, which, they explain, rest on a misunderstanding of academic citation standards and don’t involve misappropriation of anyone’s ideas, theories, or creative expressions.

In what I’m told is supposedly the starkest example, the plagiarism peddler contends that Gorsuch wrongly borrowed from a 1984 law-review article when he described Down syndrome as a “chromosomal disorder that involves both a certain amount of physical deformity and some degree of mental retardation.” The article describes it as “an incurable chromosomal disorder that involves a certain amount of physical deformity and an unpredictable degree of mental retardation.” The peddler also contends that Gorsuch plagiarized when he wrote, “Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.” The article states: “Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.” Gorsuch cites the same underlying sources that the article does.

Abigail Lawlis Kuzma, the author of the law-review article, repudiates the plagiarism charges:

I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the “Baby/Infant Doe” case that occurred in 1982. Given that these passages both describe the basic facts of the case, it would have been awkward and difficult for Judge Gorsuch to have used different language.

Georgetown professor John Keown, one of the outside examiners of Gorsuch’s Oxford dissertation on which the book was based, calls the allegations of plagiarism “unsubstantiated” and praises the book as “meticulous in its citation of primary sources.” Further: “The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is very wide of the mark.” (I’ve revised this paragraph to reflect Professor Keown’s updated remarks.)

Dr. Chris Mammen, a fellow student of Gorsuch’s at Oxford, emphasizes that the “standard practice in a dissertation is to cite the underlying original source, not a secondary source, that supports a factual statement.”

Oxford professor emeritus John Finnis, who supervised Gorsuch’s dissertation and has reviewed the charges, says that “none of the allegations has any substance or justification” and that Gorsuch’s “writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he was working.”

At least four other academics have reviewed and rejected the plagiarism charges. But that evidently won’t stop some newspapers from scurrilously spreading them.

(I will add in links to the quotes when they’re available online.)

Addendum (4/5): This Politico article presents a longer overlap between a passage from Neil Gorsuch’s dissertation-turned-book and a 1984 law-review article by Abigail Lawlis Kuzma than I was aware of when I wrote the above post yesterday evening. It’s still all highly technical medical jargon and very basic facts, in contrast with ideas, arguments, or creative expressions, and Kuzma herself has rejected the charge that Gorsuch plagiarized her. This strikes me, at worst, as the sort of inadvertent mistake that many academics make in compiling materials for book-length dissertations. More broadly, I don’t see how this dispute over 20+-year-old citations has any meaningful bearing on the overall case for Gorsuch’s nomination.


The Latest