Legal Commentary

Last fall I stood dumbfounded in front of my law school mailbox, a copy of the Supreme Court Economic Review in my hands.  The first item in the table of contents of this illustrious, Chicago-based annual law journal was a note from the editors retracting in full a previously published article.  The offense: substantial portions of the earlier article were lifted from another article without attribution.  The plagiarizing author was George Mason University School of Law?s Michael O?Neill, who apparently included in his article passages that were nearly identical to an earlier article published by another law professor in the Virginia Law Review. 

I had never before seen a complete retraction of an article in a law review, so I assumed that the plagiarizing was extensive.  When I looked up Michael O?Neill?s George Mason web page, the significance of this misconduct was implied by his bio.  O?Neill, it said, was on leave from the law school ?to serve as Chief Counsel for the United States Senate Judiciary Committee.?  What?  A plagiarist serving as chief counsel?!?  Couldn?t be, I thought.  The Senate Judiciary Committee would never stand for such dishonest behavior.  Well, I was right and I was wrong.  Turns out O?Neill had long ago quit the Committee.  George Mason just didn?t know what to say about a professor on permanent leave ? he gave up his tenure when the plagiarism charges arose ? and maybe it just sounded good to list such an illustrious position.

One might be forgiven for thinking that such substantial plagiarism to earn a complete retraction ? rather than, say, a correction for an omitted citation or two ? would be a significant hurdle to O?Neill. But guess what? O?Neill has now been nominated by President Bush to become a lifetime tenured federal district court judge!

Now I?m always happy to hear a law professor elevated to the bench. And Michael O'Neill may be a great guy. But this is remarkable. Michael O?Neill has plainly violated basic rules of legal ethics. ABA Model Rule 8.4 quite clearly states that ?it is professional misconduct? to ?engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.? Those four words capture O?Neill?s conduct in this case perfectly. Plagiarism is dishonest, fraudulent, deceitful, and misrepresentative. And, it turns out, O?Neill has done it before; although O?Neill claims his copying was am inadvertent mistake, several other instances of his plagiarism have since been uncovered.  Even worse, President Bush was made aware of this pattern of dishonesty before nominating him.

Isn?t it remarkable that the standards for a judicial appointment are less demanding than the standards to maintain tenure at a law school?