Fajans & Falk (F&F) chapter 6 has excellent materials on providing proper attribution. You should refer to them (and this page, which reiterates and expands on F&F’s suggestions) again and again.
Use authority, good authority
Give citations for pretty much everything. Simply put, every assertion of fact or law in your paper should have a footnote, regardless of whether you are or are not quoting anything. A good starting rule is to assume that every sentence needs a footnote, unless it is a topic sentence or is solely your own argumentation.
Use good authority. Wikipedia is not a good source. Neither is an ALR or AmJur. Yuck. Similarly, using a legal encyclopedia for an important assertion of law suggests cursory research. Instead, use primary authorities along with secondary authorities. Thus, if you’re discussing a case, then cite to the case, and not just to a law review article that discusses the case. Better yet, cite and discuss both the case and law review articles that analyze the case in useful ways.
Provide citations in footnotes
Every assertion of fact or law needs a footnote. Generally speaking, every assertion of fact or law in your paper needs a citation in a footnote. Heck, you even need citations for additional assertions of law or fact found in a footnote! Things that won’t require footnotes are: 1) headings; 2) topic sentences; and 3) your own pure argument. In addition, you should often provide footnotes for things that don’t technically require footnotes. For example, your own pure argument — things that are your ideas and yours alone — won’t require attribution footnotes (see below re attribution footnotes), but you should still provide authority footnotes and textual footnotes to justify and elaborate on your ideas.
If you ever have doubt, use a footnote. Don’t sweat this: if in doubt, provide a footnote. The old joke about law reviews is that if the main text says “The sky is blue,” then a footnote should be provided.
Types of footnotes (F&F pp. 117+)
Attribution footnotes. These provide the source of borrowed materials. For example, if you quote language or paraphrase the language of another, you need an attribution footnote. If you borrow an idea from another source, you need an attribution footnote. If you give the name of a book or case in the main text, you need an attribution footnote.
Authority footnotes. These provide citation to something that supports facts or legal assertions in the main text. For example, if you say in the main text that the internet is a packet-switched network, provide a footnote with one or more sources that support this factual assertion.
Textual footnotes. These provide ancillary or peripheral discussion. For example, suppose your main text discusses copyright’s safe harbor under Section 512. You would like to note in passing that some courts have applied Section 512 by analogy in trademark cases, but think that this assertion would distract from the flow of the main text regarding copyright. You can drop a textual footnote to discuss this secondary trademark matter. In fact, textual footnotes are a wonderful tool for pointing out interesting matters that are beyond the scope of your paper.
Combination footnotes. Many footnotes will combined these methods. Here is an example from my article Best Practices for the Law of the Horse: Teaching Cyberlaw and Illuminating Law through Online Simulations, 28 Santa Clara Computer and High Technology Law Journal 657(2012). Note that the textual discussion in note 65 provides quotes and ideas borrowed from other writers, thus requiring citations within the textual footnote.
Quoting and paraphrasing
Direct quotes: use quotation marks. Any borrowed language must use quotation marks and a citation.
Partial quotes & paraphrases. As F&F point out, use quotation marks for any quote of more than a few words. Also, use quote marks if you borrow just one word if that word or its use are unique to the original author. Thus, use quotation marks as appropriate and a citation.
Paraphrasing. No need for quotation marks, but you must provide a citation for the borrowed ideas.
How to quell the fear of plagiarism
What is plagiarism. Simply put, it’s using the words or ideas of another without providing attribution (i.e., a footnote) AND quotation marks (if any words of another are used). Plagiarism need not be intentional, though intentional plagiarism is worse than negligent plagiarism. Note that plagiarism risks your standing in this course and may have additional consequences under the St. Thomas Law honors code.
How to avoid plagiarism. It’s easy. When researching, reading, and taking notes, be sure to mark the source of the ideas and quotes (with pinpoints and quotation marks) so that you don’t later forget where an idea or phrase came from. That way, you’ll know that the cool idea was something you borrowed, and you’ll take care to give a proper citation, and with quotation marks as needed. Similarly, when writing, take care to provide proper footnotes and to use quotation marks as appropriate.
Prof is not the Plaigiarism Police. I am here to help you, not to try to catch you red-handed. Proper methods of note-taking and writing will help you to easily avoid any realistic danger of unintentional plagiarism. Having said that, experienced professors are expert at catching unattributed assertions and language, and just like a dog sniffing out a tasty treat, a professor can easily tell when something is (sadly) amiss. Any professor can tell you that there are few things worse than the sinking feeling a teacher gets when realizing that a student paper might contain plagiarism. Remember, in this electronic age, it is easy for students to find good sources. Those same electronic sources also make it really, really easy for professors to determine whether language or ideas were used without attribution.
When in doubt, give a footnote. You can never go wrong by providing a source. Make sure it’s the actual source!
When in doubt, ask. If you’re not sure what to do, ask me. I am always happy to provide guidance.
Last updated Oct. 7, 2014