Monday, July 18, 2005

the Web of "Sharing"

In doing my thesis on the Rule of Law, I have been alerted to the conspicious amount of sharing that goes on within some legal writings.

My definition of sharing is when one person uses 3 or more consecutive words that borrow from another person via word-for-word or paraphrased thoughts without reference.


Here is the example of Marc Riberio sharing from Patrick Monahan and Patrick Monahan sharing from Peter Hogg:

Patrick Monahan said this in "Is the Pearson Airport Legislation Unconstitutional? The Rule of Law as a Limit on Contract Repudiation by Government," Osgoode Hall L.J. 33 (1995), 411 at 417-41:

"Quebec Premier Maurice Duplessis had cancelled Frank Roncarelli’s liquor licence because Roncarelli had posted bonds for Jehovah’s Witnesses arrested for distributing literature in breach of municipal by-laws....Rand J. stated that this abuse of power was wholly inconsistent with the rule of law."

MARC RIBEIRO said in Limiting Arbitrary Power: The Vagueness Doctrine in Canadian Constitutional Law (Vancouver: UBC Press, 2004), 44-45:

"Quebec Premier Maurice Duplessis had ordered the liquor commission to suspend Mr. Roncarelli's Liquor permit to punish him for having posted bonds for Jehovah's Witnesses arrested for distributing pamphlets in breach of municipal bylaws....The Supreme Court held that the licence revocation for such reasons irrelevant to the statute was an abuse of power that was inconsistent with the rule of law..."

  1. It should be noted that there would be 14 consecutive words of verbatim sharing in the first instance of sharing, had not Ribeiro paraphrased Monahan's word "literature" with his own word "pamphlets."
  2. The second instance of sharing is a bit less obvious. Ribeiro leaves out "wholly" in the sentence. Yet it is interesting how "abuse of power" is so close to "inconsistent with the rule of law" like Monahan's article.
  3. None of this is referenced, although it is clear that Ribeiro is aware of the article, as he references it on the page previous.


Peter Hogg, Constitutional Law of Canada (Looseleaf: Toronto, Carswell, 2004?) at 1-2:

"...government officials must act in accordance with the law.

Patrick Monahan in Pearson Airport Legislation (see above for reference) at 418:

"Government officials must act in accordance with the law as set down by the legislature and the courts."

  1. At first glance, it appears as though this is a very common phrase. However, a Google, Google Print, and Lexis Nexis Law Review search shows that occurs exactly like this only 4 times. In Google, it occurs 3 times. Once in Monahan's article, once in talking about Thailand, and once in an article which quotes Peter Hogg's book in a footnote (properly cited). In Google Print, it occurs in a book about China and the Rule of Law.
  2. Monahan did not cite Hogg. Although it is unclear whether or not it was consciously shared by Monahan. However, Monahan is certainly aware of Hogg's work (having written a book on Constitutional Law in Canada himself, and by virtue of having Hogg as a collegue at Osgoode Hall). And Hogg's reference is in his section on the rule of law; Monahan's work is also on the rule of law.
So what does one make of all this sharing? Make of it what you will.

note: I did contact Monahan about Ribeiro's work via email. Monahan expressed that he was not concerned about its occurance.


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