New Essay: “Self-Plagiarism”

Imagine my excitement when I received an invitation, out of the blue, to publish in the Harvard Law Review’s prestigious Supreme Court issue. At first, I worried it was a prank, and googled the senders to make sure they were actually editors. Everything checked out. Here was the pitch: I had exactly twenty-one days to deliver a 15,000 word draft analyzing the Supreme Court’s recent opinion in Zubik v. Burwell, and the pending decision in U.S. v. Texas. Fortunately, this task was not nearly as daunting as it may seem. “I’ve already completed my chapters about Zubik for my new book,” I replied to the editors, and added that “[i]t shouldn’t be too difficult to adapt the background I wrote about the case for a piece along the lines you suggested.” As for Texas, I had already written three law review articles about the case, and co-authored three amicus briefs for the litigation, so I had all of the basics ready to go. I reviewed the publication contract, including paragraph 5, which stated “You represent and warrant to the best of your knowledge and ability that your manuscript is original with you, provides appropriate credit to sources used by you . . . and does not in any other manner infringe upon the copyrights or other rights of any person.” I returned the signed contract, and began to write Gridlock, relying heavily on my prior works.

Everything moved smoothly through the first three rounds of review—there would be eight in total—until I received an unexpected email from the Review: “a number of excerpts from Gridlock appear to be substantially the same as material from” your book and articles. “We certainly understand that, particularly for some of the factual reporting,” the editor wrote, “there often just are not many ways to say the same thing.” Yet, “[t]he Review has a tradition of publishing unique scholarship, so while it’s perfectly fine to cite to and build from your prior work, we want to make sure the material in Gridlock is distinct from that work.” Thus began my crash course with a concept I had never before considered: “self-plagiarism.”

The editors and I were quickly confronted with a series of difficult ethical questions for which there were not clear answers. How much text could be quoted verbatim? How substantially must prior writings be rephrased? Did all analysis have to be novel to the Review? During this expedited process, I was struck by how little legal scholarship addressed these quandaries that most authors (myself included) took for granted. Fittingly, several of the specific questions we confronted were of first impression for the century-old institution. In fairly short order—the article was scheduled to go to press only a month later—we arrived at a series of compromises we could all agree to.

Through this essay, titled Self-Plagiarism, I hope to share these lessons, and use my publication experience to provide much-needed guidance to writers and editors alike about self-plagiarism.

Part I provides a brief overview of the legal, ethical, and professional implications of plagiarism. Part II introduces the counterintuitive concept of self-plagiarism, which occurs when an author reuses material from something he or she previously wrote. Self-plagiarism can manifest itself in three primary forms. Part III addresses so called “recycled text,” where an author copies sentences, paragraphs, or even pages, verbatim, from an earlier work. Consistent with guidance from other scholarly disciplines, as well as the fair use doctrine, small blocks of text can be quoted verbatim, so long as they are cited, and are reproduced only when necessary.

Part IV considers a second species of self-plagiarism, where the author substantially rephrases text from an earlier work. This approach is particularly well-suited for background material, which the editors dubbed “reporting,” where neither the reader nor the publication expects novelty. So long as the author signals to the reader the provenance of the rephrased prefatory text, this approach is permissible.

Part V focuses on an area where I did not agree with the editors, but acquiesced given the Review’s ultimate prerogative to publish. As distinguished from the “reporting,” which could be substantially rephrased, the editors insisted that all “arguments” be novel. Whatever de minimis benefit can be derived from offering entirely new analysis is substantially outweighed by the policy’s impediment to the iterative scholarly process. Professors who build up a body of work over time should not be expected to completely reinvent every wheel for each new published article. At bottom, there truly is nothing new under the sun.

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