Arizona State Law Journal

Archive for October, 2011

This article was written by guest author Kathryn A. Sampson, Assistant Professor of Law at the University of Arkansas School of Law.

In January of 2010, the National Bureau of Economic Research (NBER) released a study conducted by Thomas Dee and Brian Jacobs that reported success in anti-plagiarism instruction.[i]   Dee and Jacobs examined the effectiveness of an anti-plagiarism tutorial among 1,200 papers and concluded that pre-assignment completion of the tutorial “reduced instances of plagiarism by roughly 2 percentage points overall (i.e., a two-thirds reduction) and that this treatment effect was concentrated among students with lower [standardized test] scores.”[ii]  From this data, Dee & Jacob concluded “intervention reduced plagiarism by increasing student knowledge rather than by increasing the perceived probabilities of detection and punishment.”[iii] 

In addition to the on-line tutorial suggested through the Dee and Jacobs study,[iv] two books have been developed to guide the emerging scholar through the process of scholarly writing. 

Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students: Seminar Papers, Law Review Notes, and Law Review Competition Papers (3d ed., Thomson/West 2005);

Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (2d ed., Found. Press 2005).

These books set out basic parameters of scholarly writing and are complementary to the general advice that appears in the Modern Language Association’s guide for writers of research papers.[v] The MLA guide is a resource that has undergone several revisions and enhancements since 1951 when it first appeared as a Style Sheet in the Journal of the MLA.[vi] Now in its Seventh Edition and at 292 pages, the current edition has devoted an entire chapter to plagiarism and academic integrity.[vii]  Its treatment of the mechanics of attribution is extensive and includes sections on keeping track of sources,[viii] taking notes from sources,[ix] setting up quotations,[x] and citing sources in the text.[xi] 

More succinctly, Rebecca Moore Howard has drafted a chapter focused on how to use information responsibly and how to take notes to avoid plagiarism.[xii]  In addition, two short pieces, one by Matthew Edwards and the other by Philip Kissam, set out helpful parameters for scholarly writing in the law school setting.[xiii]

When culling information from research sources, an emerging scholar must make informed decisions about how to record what has been learned.  One particularly detailed plagiarism policy at the University of Missouri-Kansas City identifies options for note taking first set out in an earlier composition article.[xiv]   Those options are 1) an outline,[xv] 2) a précis,[xvi] 3) a paraphrase[xvii] or 4) a direct quotation.[xviii]  In addition to careful notetaking, the writer must take care to provide full bibliographic source information in her notes.[xix]  Many times the citation to the source outlined précised, paraphrased, or quoted, should also include a reference to the source that led to the material.[xx]  

Resources are available for scholarly writers to develop basic vocabulary and expertise in constructing accurate sourcing for their scholarly output. The current state of the law demonstrates the critical relevance these materials have in a scholar’s library.[xxi]

 

This article was written by guest author Nick Walter. Mr. Walter is a 2012 J.D. candidate at Yale Law School, and Executive Editor of the Yale Law Journal. This blog post is based on his article, The Status of Religious Arbitration in the United States and Canada, which will appear in 52 Santa Clara L. Rev. (forthcoming Jan. 2012).

Arbitration is a popular form of dispute resolution. It is effective, too: in the United States and Canada, arbitral agreements and awards can be enforced in court.[i] This includes religious arbitration agreements—arbitration proceedings that are conducted before religious tribunals, or in accordance with religious principles.

 Religious arbitration from time to time appears in the news, often in relation to some kind of controversy. In Ontario in 2006, the premier, Dalton McGuinty, declared that all binding “religious arbitration” would be banned in the province.[ii] In Oklahoma, a referendum in 2010 amended the state constitution to prohibit the use of Sharia law in state courts, only to have the amendment enjoined by a judge.[iii] A state representative later introduced a bill that would ban the use of any non-secular source of law, and make religious arbitration unenforceable, although the bill died in Senate committee.[iv]

 Religious arbitration has been attacked for two reasons. First, many provisions of religious law seem incompatible with modern Western civil law, and to place burdens on vulnerable groups, particularly women. For example, the division of an estate under Islamic law provides twice as much for a son as for a daughter.[v] Judgments that are based on such principles might be unenforceable as being “against public policy,” but they still cause concern. Second, the enforcement of religious arbitral awards in secular courts appears to create the impression that there exists a parallel legal system, operating outside of accepted secular norms. Indeed, Premier McGuinty declared that “[t]here will be one law for all Ontarians” in announcing the ban on religious arbitration.[vi]

 However, religious arbitration presents another problem: freedom of religion. What happens if one party agrees to an enforceable religious arbitration process, but later leaves that religion? Should they be forced to participate in a legally binding process that is based on the principles of a faith that they do not follow, or do not wish to recognize? Put in its strongest possible form: is it possible to contract away freedom of religion?

American and Canadian cases have come close to discussing this problem. In Encore Productions v. Promise Keepers, a district court noted, but declined to answer, the question of whether a religious arbitration agreement violated the First Amendment.[vii] In Marcovitz v. Bruker, the Canadian supreme court awarded damages when one party broke a contractual promise to appear before a Jewish tribunal, a beth din.[viii] However, the Marcovitz court was not faced with the question of whether it should also grant specific performance. If it had had to answer this question, it might have reached a different conclusion.[ix]

Religious freedom is fundamental to our society: Madison termed it “inalienable,”[x] and it is enshrined in the Free Exercise Clause of the First Amendment.[xi] The Canadian constitution defines “freedom of conscience and religion” as a fundamental freedom.[xii] In American law, religion is a “protected category,” like race and sex.[xiii] Courts should therefore take very seriously a motion by one party to render a religious arbitration agreement unenforceable on grounds of freedom of religion.

In some cases, freedom of religion is arguably enhanced by permitting parties to enter into binding religious arbitration agreements.[xiv] For example, the “internal affairs” doctrine prevents American courts from interfering in church doctrinal disputes. In such cases, binding religious arbitration agreements promote freedom: they permit private parties to make legally enforceable contracts that would otherwise be impossible. (We can easily imagine the effect of preventing courts from enforcing agreements in such instances: it might be much harder for churches to find ministers, for example.)

But in cases where civil courts are competent to handle the dispute, the freedom-enhancing benefits of binding religious arbitration are outweighed by its freedom-limiting aspects. Religious arbitration in these circumstances forces parties to comply with religious procedural or substantive law, even though other routes to settle their disputes are available. Parties can still make an agreement to resolve disputes before religious tribunals, and the state may encourage this. But if one party later chooses not to abide by the agreement, it should not be enforceable in a civil court.