Writing Standards in Law School

Introduction

This is intended to provide general guidelines for writing papers in law school. As such, it furnishes only the minimal standards, below which acceptable writing may not fall; it does not attempt to define standards of excellence.

Law school writing can be broadly categorized into five distinct types: (1) examinations, (2) instrument drafting, (3) reports, (4) briefs and (5) research papers. Two basic policies determine the minimal standards applicable to all five of these types: (1) ethical standards of honesty, and (2) academic standards of individual analysis and original thought. These two policies have varying applications to the five listed categories.

The Dean and Faculty of the Law College view any departure from the ethical standards expressed herein as being a very serious matter. They reserve the full right to apply appropriate sanctions in instances of ethical unacceptability in writing. In addition to academic failure in the course, such sanctions may include, among others, suspension or expulsion from the law school, and a report of any instance to the appropriate state bar association and board of bar examiners, which may exercise authority to prohibit the writer from entering the legal profession in that state on grounds of ethical unacceptability.

Minimal Ethical Standards

Implicit in the determination of minimal ethical standards is the policy that a writer may not appropriate in his writing either the language or the ideas of another without giving due credit to the source of such language or ideas, except as otherwise specifically provided for herein. A breach of these standards is based to a very large extent on the existence of an intent to commit such a misappropriation. Such an intent is to be determined primarily by objective evidence of the writing itself, rather than by the statement of the writer as to his subjective intent.

A significant phrase, a sentence, or a longer passage in a writing, taken verbatim from another's writing, must be identified by quotation marks and citation as coming from such other source in order to avoid the imputation of an intent to misappropriate. Where a passage or significant number of sentences or phrases in a writing closely resemble, with only slight variations in language, those of another source and no identification of the other source is made in the writing by quotation marks and citation to such other source, a like imputation of intent to misappropriate will be made. Mere change of random words does not constitute acceptable paraphrasing.

Acceptable paraphrasing consists of a restatement by the writer in his own words of another writer's ideas, with due reference to the source of such ideas. Where the writer paraphrases all of a portion of the content of another writing, sufficient citation to such other writing must be made with sufficient accompanying explanation to enable the reader to determine what portion of the writing is intended as a paraphrase, in order to avoid the presumption of an intent to misappropriate. Presumption of such an intent will be proportionately stronger as the extensiveness of the paraphrasing and the lack of clarity of such explanation increase.

The use of any writing or dictation that is done by another for the specific use of a writer who then presents the material as his own is ethically unacceptable on the part of both the furnisher and recipient thereof.

Any statement, either express or reasonably implied in a writing, that the writer has read a source that he has not in fact read is ethically unacceptable. Citation of any source shall be construed to imply that the writer has read the cited source unless the writer specifically indicates the contrary.

In the event that it may be infeasible or impractical to read a primary source that is referred to in a secondary source - as, for instance, where the primary source isn't available, or the secondary source cites a general or preponderant rule that is accepted or is not in central issue in the writing - then the writer must make it clear that he read the secondary source only. Such clarification may generally be achieved by citing, or quoting from and citing, the secondary source only.

Except in the case of examinations, consultation by a writer with another person for purposes of obtaining ideas to be used in a writing is ethically acceptable, unless the teacher for whom the writing is being prepared expressly provides otherwise. However, collaboration in the actual writing of a paper is ethically unacceptable on the part of all collaborators, unless the teacher otherwise expressly provides. When consultation or collaboration is ethically permissible, explanation of the source thereof is ethically required if the writing is substantially based on ideas suggested by such source.

Minimal Academic Standards

Academic standards of individual analysis and original thought pertain to a writing without regard to whether it meets the minimal ethical standards.

A writing may fully cite the reader to all source material but consist in sum and substance of essentially nothing more than a restatement of some other writer or writer's ideas; as such the writing would generally be academically unacceptable. Where the ideas of two or more other writers are dealt with in a writing, the ensuing contrasts and comparisons must be not only pointed out, but they should also be explored, analyzed and evaluated by the writer individually, in order to infuse the writing with an academic quotient sufficient to raise it above the level of a patchwork of others' ideas.

Any source read by the writer should be read with sufficient care to avoid making a misstatement of the proposition or propositions for which the source stands. The writer should make more than a cursory examination and research of available sources to determine the probable content and validity of a proposition.

Whether the product of ethically acceptable collaboration or consultation is academically acceptable will be determined by the degree of individual effort that is indicated by the instructor as expected in the particular writing assignment.

A writing that does not meet minimal ethical standards is also unacceptable academically, even though such writing may contain acceptable ingredients of academic work.

Application of Standards

Examination

Except in the case of open-book examinations, all of the writing on an examination must be the product of the writer's individual memory as derived from the applied to the examination question, in order to be ethically and academically acceptable. Additionally, to be academically acceptable, the writing, with the exception of answers to purely objective questions, must also demonstrate more individual thought of the writer than memory alone, such additional thought consisting of analysis, organization, evaluation and persuasiveness.

The examination writer is not ethically required to identify specifically the source of his thoughts, although it may be academically desirable to do so at least in a general way for purposes of clarity and demonstration of knowledge. Specific identification and delineation of sources in the writer's mind is in all events academically desirable in order to avoid general overstatements, unqualified statements, and other misstatements of the law, and in order to aid the writer in making individual qualifications that may seem appropriate to the particular examination question.

In the case of open-book examinations, only such sources as are specified by the teacher may be used. The same standards regarding specific identification of sources and derivation of materials, as outlined above, apply to open-book examinations unless the teacher otherwise specifies.

Reference to any source or discussion with other persons, other than as provided for herein, is ethically unacceptable.

Instrument Drafting

The drafting of instruments, such as pleading, wills, trusts, contracts, statutes, and the like, may be done by use of relevant forms or drafting products prepared by others. Such use is permissible and is generally desirable unless the teacher expressly indicates otherwise; no ethical question is involved except in the case of unauthorized reference or use. The extent to which identification of the source of such use may be required will depend upon the specifications set by the particular teacher.

The use of forms and other drafting products will in all instances require individual adaptation to meet the needs of the particular situation; in general, individual additions will be desirable as well. The extent to which such adaptation and additions are desirable will depend on the circumstances of the particular situation. The adoption in full of a single form or other product with only the addition or substitution of identifying names is academically unacceptable unless expressly authorized by the teacher.

Reports

Reports, such as book reviews and similar critiques, by nature consist to a substantial extent of a summary of a primary source or sources. Extensive paraphrasing of such sources is ethically permissible without specific reference to the source, although specific identification is academically desirable for purposes of clarity. Whenever verbatim quotations are made from a primary source, appropriate identification of the source as described in the "Minimal Ethical Standards" above is ethically required.

Generally, some analysis and evaluation of the primary source or sources will be academically required. Such analysis and evaluation should contain individual contributions of the writer and may contain additions from other sources as well. In the event that additions from such other sources are used, they must be appropriately identified as provided in the "Minimal Ethical Standards" above.

Briefs

Briefs are summaries of the law on particular issues. Accordingly, it is academically desirable to provide in a brief as thorough a summary as is practical. To the extent that a research digest is used merely for purposes of finding citations to primary sources, reference to this digest is not ethically required, although reference or citation may be academically desirable for purposes of presenting clarification of a given proposition. In the event that a research digest is relied upon for purposes other than obtaining references to primary sources, due reference to such digest is ethically required by appropriate quotation from or paraphrase of the relevant portion or portions of the digest, and by citation thereto.

An academically acceptable brief should also contain elements of analysis, organization, policy, and persuasive argument. Any of these elements may be derived from other sources; to the extent that such derivation is an intentional process, due reference to the source is ethically required. Intent in this context is measured objectively by the standards outlined in the "Minimal Ethical Standards" above.

Research Papers

Research papers generally differ from briefs, other than in format, by the greater emphasis that is placed upon the writer's ability to present non-precedent-oriented considerations in the writing, and by the greater extensiveness of the writing. These differences involve only academic considerations; the ethical standards outlined in "Minimal Ethical Standards" sections apply.

Conclusion

The parallel references to minimal academic standards of acceptability are designed primarily to aid the writer in distinguishing the applicable ethical standards from academic standards. It should be emphasized that in no event should this memorandum be construed as providing a guideline for excellence nor as providing any kind of detailed outline of academic acceptability. The contours of academic acceptability and superior achievement are as elusive as those of the meaning of education. The contours of the standards of ethical acceptability are reasonably certain by comparison, and henceforth it will be expected that these standards will be perceived as a minimal requirement for the qualifications of a lawyer.

Any standard expressed herein may be varied by any teacher from time to time in specific instances, but the authorization for any such variation of an ethical standard must be expressed, and a substantial burden will be placed on the writer to prove the existence of such authorization if the variation is called into question.

It is evident that the definition of ethical standards in writing for law school involves questions of degree, but this fact is not unusual in the law. The purpose of this memorandum is to provide general ground rules in order to obviate a plea of ignorance in what should be the more obvious situations. If the writer is confronted with a situation that he cannot reasonably resolve by reference to these ground rules, he should consult the teacher from whom he has obtained the writing assignment in order to obtain clarification. It is intended that henceforth a plea of ignorance as to ethical standards will not be acceptable.

Approved June 1991