U.S. District Court Nominee Accused of Plagiarism

After almost a year, one of the few things that really stuck with me from my week-long law school orientation is that cheating is not acceptable. Well, of course, I knew that already, but in law school, it is really not acceptable.

Stressing “professionalism” and the philosophy that our personal reputations and the reputation of our profession rely mainly on our integrity, honesty, and competency, the faculty and staff made it clear on numerous occasions that an appearance before the Honor Council for any kind of violation would not bode well for a successful legal career.

According to CU’s Honor Code, anyone found in violation may, after extensive administrative proceedings, be failed, suspended, expelled, or have a letter of reprimand kept non-confidentially in the student’s file. These, or any other action taken against you, we were also warned, would probably have to be disclosed on a bar application, a decidedly unsettling thought for those of us making a huge investment in one day being accepted to that particular organization.

The very first violation stated in the Code is plagiarism, defined as “submitting the work (whether quoted words, paraphrased words, or ideas) of another, in a draft or final product, without attribution.” Plagiarism, an act that probably would and should get me expelled from school or deny me the opportunity to practice law, may not disqualify President Bush’s nominee for a seat on one of the nation’s most prestigious and influential Federal District Courts.

On Monday, Michael E. O’Neill refused to withdraw his nomination to the U.S. District Court for the District of Columbia, amid accusations of numerous acts of academic plagiarism. O’Neill defended himself, claiming he disclosed the controversy to the White House and FBI; a disclosure he seemingly believes negates his unethical and dishonest conduct. O’Neill, a former aide to Senator Arlen Specter and apparently instrumental in securing the confirmation of Justices John Roberts and Samuel Alito to the Supreme Court, claims that he made an unintentional mistake in 2004 when he plagiarized a 2000 book review written by University of Connecticut law professor Anne C. Dailey. Last year, the Supreme Court Economic Review, a respected, peer-reviewed legal journal, took the extremely rare step to issue a complete retraction of O’Neill’ss article, explaining that “substantial portions” of the article were “appropriated without attribution.”

The passages cited in the New York Times article demonstrate what the journal’s editors meant. Here’s Dailey’s original, 2000 passage:

“Bounded rationality is not a refutation of the rational actor model; to the contrary, it attempts to fine-tune the model to take account of predictable cognitive limitations and biases. Despite occasional references to irrationality in the literature, there is nothing in fact irrational about bounded rationality.”

Now that’s some high-flown, cerebral language. I would probably remember if I wrote that or not. Not Mr. O’Neill. His passage, the few differences in bold, goes like this:

“Bounded rationality is not a refutation of the rational actor model; to the contrary, it seeks to recalibrate the neoclassical model to take account of predictable cognitive limitations and biases. Despite occasional references to irrationality in the literature, there is nothing especially irrational about bounded rationality.”

Other than ratcheting up the pomposity a bit, the two are identical. Not only that, but according to the New York Times, there are “at least four articles by Mr. O’Neill in other publications contain passages that appear to have been lifted from other scholars’ works without quotation marks or attribution.” As Adam Winkler points out, this constitutes a violation of the basic rules of legal ethics, as stated in ABA Model Rule 8.4 and illustrated in CU’s Honor Code.

If an ethical violation is serious enough to expel a student from law school or deny him or her admission to the bar, then it should, due to our profession’s ideals of integrity and honesty, disqualify the transgressor from sitting on a federal court bench.

Thomas Connell
Summer Intern 2008
J.D. Candidate 2010
University of Colorado

One Comment

  • Well, it can result in being expelled from law school or being denied admission to the bar, but obviously it doesn’t deny candidates admission to the V. P. Mansion.