Judge Posner explains why the undisclosed use by law professors of student ghostwriters poses "an issue of fraud"

The Becker-Posner Blog has two important recent posts on plagiarism, here and here. We highly recommend both posts, and the comments which follow each post. In this post we will focus on one aspect of the first and main post.

For those not familiar with this excellent blog, it features Professor Gary S. Becker of the University of Chicago and the Hoover Institution, a Nobel laureate in economics.

It also features Judge Richard A. Posner, who runs neck-in-neck with Judge Alex Kozinski for the ranking of most respected judge in the U.S. and who, in his spare time, is an astonishingly prolific author of books and articles on both legal topics (apparently he is the most-cited American legal scholar of all time, and he recently received Harvard Law School’s highest scholarly honor, the infrequently awarded Ames Prize) and on non-legal topics. For reviews of some of his recent work, see here, here, here, here, and here; see also here. For recent interviews, see here and here.

The first and main post is by Judge Posner, who has previously written on plagiarism in 2002 in an essay in The Atlantic which can be found here (subscription required) (available "for free" here); in 2003 in an essay in Newsday which can be found here; and in 2004 in an e-mail summarizing a humorous remark he made during an appearance at Harvard Law School, which can be found here, which we previously blogged about here (entry under Oct. 19, 2004).

In his post, Judge Posner argues that the term “plagiarism” is not properly used to describe every instance of unauthorized copying from another person. Rather, the term is properly “reserved for cases of fraud.” In exploring the fraud question, Judge Posner discusses the apparently recent phenomenon of

the “managed book,” or more broadly the use of research assistants or other aides in the creation of a book. The term refers to a book in which the nominal author is actually an editor — an assembler and maybe a reviser — of work done by persons whom he has hired. He is much like a movie director. He presides over the composition of the work rather than being the composer. . . . It seems likely that many multivolume treatises by (that is, nominally by) law professors are “managed books” in which most of the actual writing is done by student research assistants — though I am guessing; I have no actual evidence.

This issue of undisclosed student ghostwriting has been a major one for us since last September concerning both the Ogletree matter and the Tribe matter, based on reports that substantial portions of the books in question were written for them by law students (something Ogletree and Tribe have basically conceded through their statements to the press combined with their failure to make simple statements suggested by Dean Velvel which, if true, would clear them of the ghostwriting charge, see here and here). So Judge Posner’s analysis is, in our view, strongly supportive of the emphasis we have placed on the ghostwriting issue from the very start, in an early post on the Ogletree matter.

According the Judge Posner (who avoids addressing the specifics of the Ogletree and Tribe matters, or of any other concrete case), the undisclosed use of student ghostwriters presents an issue of fraud:

Let me say, as someone who has written a number of books, that the idea of writing a “managed book” is not to my personal taste. I think that the person who writes a first draft largely controls the final product, even if it is carefully edited by the “author” of the managed book. But the issue of plagiarism has nothing to do with the taste of particular writers. It is an issue of fraud. So the question regarding the managed book is whether failure to disclose that most of the actual writing was done by persons other than the nominal author misleads readers to their detriment. That depends mainly on the conventions, and hence expectations, of a particular field.

At least as to American legal treatises, according to Judge Posner, the reader would not expect that much of the book was actually written by law students (we believe this is true even more clearly for single-subject books such as the Ogletree and Tribe books which currently are in the spotlight at Harvard). Judge Posner explains:

That is not the norm in the United States. I believe without knowing that the delegation of the writing of extensive portions of such works is recent, and much of the profession, including the treatise author’s colleagues, may be unaware of the trend — if there is a trend, of which I am not certain. It would be prudent, therefore, for such treatise writers to acknowledge the coautho[r]ship or first-draft responsibility of their students, in order to avoid a charge of plagiarism.

Confirmation that the norm in the United States is that a reader of a book authored by a law professor would not expect that much of the actual writing on the book was done by persons other than the nominal "author" can be found in an insightful post from law professor Glenn Reynolds of "Instapundit" fame, which he made last September shortly after the Tribe plagiarism story broke, on an issue which at that point we observed merited comment by Professor Tribe, here. Here is what Professor Reynolds said about the phenomenon of "managed books" of the sort which by then it had become widely accepted Professor Ogletree had "produced," and which it now appears Professor Tribe "produced" as well:

Getting together a bunch of research assistants and outsourcing a book to them, with the product of their work appearing under one's own name, isn't exactly immoral -- but it isn't scholarship, either. I've never used research assistants that way, and it seems obvious that doing so isn't a very good idea. Whether it results in plagiarism, or simply a shoddy product, you're not getting the work product of the person whose name is on the cover. With celebrity autobiographies and the like, that's okay, since everyone knows it, and most celebrities couldn't turn out a book on their own. I don't think that either of those considerations holds true where academics are concerned. . . . .

We would be interested to hear the opinions of other law professors on the applicable norm in the United States regarding whether readers of a book authored by a law professor expect that much of the actual writing was done by persons other than the nominal "author," such as students of the law professor. Does anyone disagree with the view of Judge Posner and Professor Reynolds?

We find additional support for Judge Posner’s thesis -- that traditional standards of legal scholarship prohibit the unacknowledged use of ghostwriters who actually write portions of the scholarly work in question, with the nominal "author" then editing/revising these portions of the work -- in the Harvard Law School Catalog which embodies those traditional standards, and which can be found online here.

Part VII of the Catalog, entitled "Academic Honesty," strictly prohibits any use of ghostwriters and requires that the exact nature of any collaboration on written work be fully disclosed up front. The failure to abide by this norm triggers mandatory discipline. Section 2 of Part VII reads as follows (we have italicized the portions which, when read together, plainly prohibit any undisclosed use of ghostwriters, even for a small portion of the work):

2. Preparation of Papers and Other Work-Plagiarism and Collaboration

All work submitted by a student for any academic or non-academic exercise is expected to be the student's own work. In the preparation of their work, students should always take great care to distinguish their own ideas and knowledge from information derived from sources. The term "sources" includes not only published or computer-accessed primary and secondary material, but also information and opinions gained directly from other people.

The responsibility for learning the proper forms of citation lies with the individual student. Quotations must be properly placed within quotation marks and must be fully cited. In addition, all paraphrased material must be completely acknowledged. Whenever ideas or facts are derived from a student's reading and research, the sources must be indicated.

The amount of collaboration with others that is permitted in the completion of work can vary, depending upon the policy set by the head of the course or the supervisor of a particular exercise. Students should assume that collaboration in the completion of work is prohibited, unless explicitly permitted, and students should acknowledge any collaboration and its extent in all submitted work.

Students who are in any doubt about the preparation of their work should consult the appropriate instructor, supervisor, or administrator before it is prepared or submitted.

Students who submit work that is not their own without clear attribution of all sources, even if inadvertently, will be subject to disciplinary action.

We look forward to reactions from readers, particularly from law professors, on the points made by Judge Posner and Professor Reynolds, and in this post. Unless indicated otherwise in an e-mail, we will assume we are free to reprint anything sent us, although we are not free to identify the sender.


UPDATE (5/6/05)

In a post of May 1, Judge Posner responded to various comments on his plagiarism post and provided some insight into his writing practices and the work he delegates to law clerks, here. We highly recommend this post, and several of the comments on the post.