It appears that the Ayres plagiarism follows much the same pattern as the plagiarism by the Harvard authors: In a generally original work that makes important contributions to the literature, some lifted text goes unattributed. Ayres, like his Harvard predecessors, has pleaded carelessness, and promised a correction in the next edition. Here's what Ayres says (in a quote that I have borrowed, with attribution, from the Yale Daily News Story linked above): “It has recently come to my attention that in several brief instances in the book, my language is too close to the sourced material and I should have used quotation marks to set it apart from my text. . . . I apologize for these errors and my publisher has agreed to make appropriate changes in future printings of the book.”
The problem with this explanation---whether used by Ayres or the others---is that it explains how a verbatim quotation can end up unattributed but is not so credible in explaining how an almost-verbatim paraphrase ends up unattributed. Especially when one works with electronic files, it's easy to lose a set of quotation marks and, when compiling a book from notes, to mistakenly believe that text you have copied from someone else and meant to quote, was in fact your own.
But paraphrases in which the sentence structure is altered ever so slightly is much harder to explain as the result of inadvertence. Consider the following passages (noted first in a NY Times book review by David Leonhardt and also discussed in the Yale Daily News article, from which I have borrowed the quotations---again with attribution).
Leonhardt wrote: “Their son had been sick for months, with fevers that just would not go away. The doctors on weekend duty ordered blood tests, which showed that the boy had leukemia.”
Ayres wrote: “The boy had been sick for months, with a fever that just would not go away. The doctors on duty that day ordered blood tests, which showed that the boy had leukemia.”
Now, it's conceivable that Ayres first inadvertently lost the quotation marks, and then, when editing for style what he thought was his own prose, made the minor changes above, but it's also a plausible inference that the paraphrase was introduced deliberately so that Ayres could claim that he wasn't quoting and thus didn't need to attribute. I'd like to believe it was the former phenomenon, but I think the latter inference is more plausible.
And if that's right in the Ayres case or in the case of the Harvard authors' books, then we have a more serious problem, because then we have prominent faculty who think that it's acceptable to change another author's words ever so slightly to avoid having to give attribution. This is plainly not the standard, even for trade books (an excuse sometimes offered in these cases).
But now we come to the nub of the problem: How likely is it that Ayres or the other authors would risk their academic reputations to avoid attribution? Isn't it much more likely that what we have here is a ghostwriting scandal masquerading as a plagiarism scandal? For it's easier to believe that a research assistant whose own reputation is not on the line and who may not be as familiar with the norms of attribution (even if he or she should be) would ever so slightly change the prose of another author as a means of cutting corners on a project that has been delegated to him or her.
I raise this question painfully aware that as a co-author, former research assistant and friend of Larry Tribe, readers will infer something about his own practices from my asking it, and so I'll say that I did not ghost-write anything substantial for Larry's academic projects when I worked as his research assistant. My speculations about the failure to attribute in his work (which does not include anything I worked on) are just speculations, just as I'm speculating about ghostwriting in the work of Ayres and the others.Finally, let me suggest that if I'm right that these cases are really ghostwriting scandals, then we ought to be able to find instances of plagiarism in judicial decisions, since the very students who work as research assistants for the likes of Harvard and Yale Law professors often go on to clerk for federal judges, and it's a completely open fact that much of what law clerks do is to ghost-write for their judges.
Posted by Mike Dorf