Comments from Professor Powell of Duke

A few days after we received the first e-mail from "Professor A," whose comments we featured in this post, and shortly before we received the first e-mail from Dean Carrington, whose comments we featured in this post, we received very helpful, quite detailed comments from Professor H. Jefferson Powell of Duke.

Professor Powell is, of course, a noted legal scholar, particularly in the field of constitutional law. Among his many professional accomplishments, Professor Powell once served as the Principal Deputy Solicitor General in the U.S. Department of Justice (the number two attorney in charge of representing the federal government before the U.S. Supreme Court). Professor Powell holds an M.Div. degree from the Yale Divinity School; a J.D. degree from Yale Law School; and a Ph.D. degree from Duke University.

Originally we had intended to address Professor Powell's comments in a detailed e-mail response. However, in our responses to the comments of Dean Carrington and "Professor A," we have already addressed many of the issues addressed early on by Professor Powell. Therefore, below we are reprinting our e-mail exchange with Professor Powell, and are providing our response in italics after each of his paragraphs, also linking to where else we may have discussed the point. For ease of future reference we have numbered his paragraphs; we have also bolded the text of his e-mail.

We greatly appreciate Professor Powell having taken the time to address these issues, and we look forward to reader comments on the points he makes. We hope his example will prompt other law professors to comment on various issues which are addressed in or might be relevant to this blog.

AuthorSkeptics



Date: Mon, 2 May 2005 3:01 PM
From : "Jeff POWELL" (POWELL@law.duke.edu)
To: author_skeptics@allmail.net
Subject Re: Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

[This e-mail was blank. --AS ]



Date: Tue, 3 May 2005 12:32 AM
From : "AuthorSkeptics" (author_skeptics@allmail.net)
To: "Jeff POWELL" (POWELL@law.duke.edu)
Subject Re: Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

Professor Powell:

Perhaps it was an accident, but we received the following blank e-mail from you. We thought we should let you know, in case you intended to send us something, that we received nothing.

Sincerely,

AuthorSkeptics



Date: Tue, 3 May 2005 10:51 AM
From : "Jeff POWELL" (POWELL@law.duke.edu)
To: author_skeptics@allmail.net
Subject Re: Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

Dear AuthorSkeptics:


1. Thanks -- it was indeed a mistake, but while I have you on the phone, so to speak, let me respond.


2. My practice is that anything that appears under my name alone has been written by me entirely, with the following exception: I sometimes ask a student assistant to provide me the proper cite to a case, or to turn my cites into blue book form. I do not view a somewhat more expansive use of assistance -- "please find some cases which say X and write up a footnote on them" -- as improper ghostwriting, although that is not my practice, not for ethical reasons but because of the nature of my work, and my habits of writing.

"Professor A," also a noted legal scholar, has a similar view, suggesting that if it's acceptable to have RAs do research, then it should be acceptable to have them compile lists of citations on particular topics (scholarly work which involves little if any spark of originality), and for a law professor to then copy such lists into his or her text without any need to disclose that these portions of the work were actually written by others. See para. 3 of the May 17 e-mail of "Professor A," here (at the very bottom). We tentatively concur with this view, at least assuming that readers typically expect law professors to have RAs write up such compilations of citations, which may very well be the case, and further assuming that the total amount of text involved is a very small percentage of the whole text. -- AS


3. I suspect that I place the weight of the moral issue somewhat differently than you do. I do not see, at present, that there is some great injustice to a student who is paid to write material which the professor will then publish under his or her name: if the student is willing to have her work used in this way, for pay, then I cannot see quite how he or she is harmed. (Other circumstances -- a professor simply taking writing from a student seminar paper, for example, or coercion by the professor -- would lead me to a different conclusion.) The transaction seems to me a bit sordid, but it is a common and accepted feature of our market culture.

Although we perhaps might have been unclear about this in the past, our concern for students is one involving the double standard between how students are punished for plagiarism and how professors are punished -- or not punished, to put it more accurately, at least regarding Harvard. Our concern is not with the "exploitation" of students who willingly enter into a ghostwriting arrangement with a professor. Indeed, if anything we view such students as a part of the problem, to the degree they fail to disclose the ghostwriting arrangement if there is an inquiry about it, arguably thereby implicating them in issues of fraud. See paragraphs 6-8 of our analysis, here. --AS


4. In thinking about your email, I found myself reflecting on a novelist, very successful in the 60s through 80s, who was originally a good writer, stumbled on a commercially successful formula, and eventually (or so it was reported) was the manager of a team of researchers / writers who churned out money-maker after money-maker. I find that distasteful -- to have one's name attached to work one did not do -- but I don't think it was unjust to the famous writer's employees: they made a deal and got the return they bargained for. And I am not quick to judge the writer ("writer" ?): it is easy for me to condemn others for succumbing to temptations that I do not experience.

Fascinating. At least tentatively we share your impluse not to be too condemning of a fiction writer who succumbs to the temptation to pass off the writing of others as his own, to satisfy the taste of loyal fans for entertainment through novels in a particular genre and pad his or her bank account, not to mention create quite a bit of leisure time, in the process. Others may disagree, but in our view the task of popular fiction is to entertain, and that task can be fully satisfied even if a well-done book has been entirely ghostwritten by someone not listed as the author, even assuming many readers would not have bought the book absent what would seem to be fraud. The incentive of the "author" not to dilute his or her "brand" with a subpar product will tend to limit the harm to consumers of such fraud. Our stance here may well be criticized, and perhaps largely derives from our hosting the "Harvard Plagiarism Archive" rather than a "Popular Fiction Ghostwriting Blog," but we think you are drawing a meaningful distinction between popular fiction writing and academic writing. --AS


5. Academic writing, it seems to me, is a different matter. Scholarship is, or ought to be, the expression of the person(s) to whom the work is attributed, for many reasons. The moral wrong in ghost-written scholarship (where the student freely agreed to do the writing) lies not in injustice to the student but in the misrepresentation to the world that what is read is what the named author has in fact worked out in the hard task of serious thought. When an academic publishes, as scholarship, something which is not his or her own writing, I believe that that person deceives the world.

Based on analysis by Dean Velvel and Judge Posner and our own thinking, we strongly agree with you that the standards prevailing for American university scholarship are totally different than the standards which might tolerate ghostwriting in other fields, such as popular fiction or popular celebrity "autobiography." For an American university scholar to put his or her name on a book as the sole author and not disclose that any portion of the book was drafted by an assistant, when in fact much of the book was drafted by one or more assistants, in our view poses very serious issues of academic fraud. --AS


6. There is, I think, room for significant disagreement on these matters. It may be proper to make greater use than I do of student assistance in creating the sometimes absurd citation apparatus which current convention demands. Certain kinds of scholarship -- long-running treatises come to mind -- may lose the character of personal statement which I see in scholarship generally, in which case the purchase of text from professionals who are not acknowledged as authors seems to me without moral significance. There may be other considerations in particular circumstances which do not occur to me. I do not want to be dogmatic.

We agree there is certainly room for disagreement at the margin as to when a scholar who obtains assistance with his or her writing still deserves to be viewed as the sole "author," meaning the sole writer, and when a scholar goes over the line and has had parts of the work drafted by assistants who are properly termed "ghostwriters." See our comments on Dean Carrington's statement here (our point 2) and our comments on the analysis of "Professor A" here (paragraphs 9-12).

Your reference to the "absurd citation apparatus" is well taken, and "Professor A" later made the same point, to which we responded here (paragraphs 29-33). Some might argue that the requirements for "authorship" of legal scholarship should be invariant and not depend on context. But we believe, practically speaking, that on at least some pieces published in student-edited law journals, student editors at times insist on adherence to absurd, even insane, citation conventions, and we see little reason to criticize scholars who respond by having assistants draft up material to satisfy these conventions, as long as it is relatively unoriginal and represents only a small percentage of the entire work.

Regarding "long-running legal treatises," we assume you mean those practioner-oriented treatises which have existed for years, sometimes decades, and run into many volumes, such as the Wright & Miller treatise. We tentatively agree readers would not be too excited or even surprised if they were to learn that the pocket parts of such treatises, consisting mostly of new citations on old points, are largely drafted by persons other than the nominal "authors," even students, who are not given writing credit. We think readers would have a very different reaction if it were to be revealed that a much more compact treatise thought to represent a leading expert's own work had been ghostwritten in significant part by others: for example, the treatises by Clark on corporate law, Farnsworth on contracts, Nimmer on copyright, Posner on economic analysis of law, Tribe on constitutional law, and Wolfram on legal ethics, to mention just a few very prominent treatises which do not seem to fall into the category you are discussing. --AS


7. All of that said, I think the following two propositions are true. (1) My practice is (roughly) what is the generally accepted norm. (2) This norm is widely violated. (I am happy to say that to the best of my knowledge, none of my colleagues at Duke act any differently than I.) Whether anyone mentioned on the websites you mention has acted in contravention of this norm I of course do not know. If anyone has done so, I think he or she was wrong.

We look forward to comments from readers about this remarkable statement that: (1) for a scholar to write essentially all of a work himself or herself, with at most minor writing by assistants on citations or peripheral footnotes, is "the generally accepted norm"; but (2) simultaneously, it is the case that "[t]his norm is widely violated."

How can it be the norm if it is widely violated? Perhaps because it is the norm in readers' eyes, which Judge Posner suggests is the critical aspect -- readers expect adherence to this norm and believe it exists, yet they are unaware that (perhaps) many "writers" do not adhere to the norm? Is it perhaps the norm, even if widely violated, because long ago it was the traditional norm and the (perhaps) many scholars who break the norm will not publicly admit they do so, as they are ashamed of what they are doing, which prevents the creation of any new norm under which it is seen as acceptable and not shameful for an American university scholar to hire others to write much of a book or article? In other words, it has been and still remains the norm, even though (perhaps) many scholars now routinely cheat, because if their use of ghostwriters were discovered, the cheaters would concede the norm is as you have stated, and would not deny that their undisclosed use of ghostwriters was wrong? Having relativley little background in this area and even less little reluctance to solicit comments for this blog, such considerations lead us to ask: where is Professor Eric Posner when we need him? --AS


8. Which brings me to a final comment, on your use of the idea of complicity. What you are suggesting about those who do not denounce purported violators of the norm I accept is parallel, it seems to me, to the assertion that all US taxpayers were complicit in the invasion of Iraq. (Whether that act was right or not is not relevant to this point.) Saying so is a perfectly understandable use of the words complicit(y). In some circumstances, it might also be a valuable use of the words -- where, for example, one wishes to jolt a sleepy audience into a recognition of what their drowsiness is permitting. I assume that some thought of that sort lies behind your use of the terms. Nonetheless, I think you are in error in using the words. There are many reasons why academics in other institutions than Harvard may not speak about that institution's issues which seem to me to be entirely licit, beginning with the fact that there is only so much time in the day, and that many of us view our families, religious lives, and personal interactions as more important than our role as scholars. You assume, I fear, either an heroic devotion to work, or a disregard for other, more important tasks of life.

Your remarks on this point are well taken. Perhaps you, like we, are being deliberately provocative, to encourage us to address the issue, which we certainly do not view as inappropriate. We addressed the "complicity" issue in an e-mail exchange with Dean Velvel which we have posted with a comment here. Because of your comment we should emphasize two things.

First, we are not saying anyone who fails to "denounce purported violators of the norm" is complicit. In fact, we have not pressed anyone to comment on any specific cases, not even on the Ogletree and Tribe matters, as people seem to be most comfortable with and best positioned to comment on scholarly standards in general. We do not see anyone as "complicit" merely because he or she happens to disagree with us: as we said in one e-mail to Dean Velvel: "law professors who take a stand, but who happen to disagree with you and us on the issues, are not 'complicit'; the complicity charge relates to those who do nothing." (See here, e-mail of April 29.)

Second, we are in no way insisting that every law professor we have e-mailed comment. Our view simply is that if not one of the dozens of tenured law professors at a particular law school is willing to address the general issues raised by our blog, it seems fair to suggest that law school is collectively complicit in the dumbing down of standards for academic scholarship generally, as no one at the school is willing to even address these issues. We fully expect that law professors from all the schools we have contacted will eventually participate in this discussion, and we hope we will not need to further address the "complicity" issue. --AS


9. I am happy for you to post this, with my name.

Thank you very much. --AS


Sincerely yours,

Jeff Powell



Date: Tue, 3 May 2005 12:31 PM
From : "AuthorSkeptics" (author_skeptics@allmail.net)
To : "Jeff POWELL" (POWELL@law.duke.edu)
Subject Re: Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

Professor Powell:

Thank you for your e-mail, and for generously consenting to us identifying you by name in reposting our comments. Your willingness to be identified, we think, will assist in our efforts to obtain serious attention for the issues we discuss in our blog.

We find your comments, including your notes of caution on certain points of our analysis, quite valuable. We will send you a substantive response by the end of the week. Our practice is to refrain from posting any material until people e-mailing us have a chance to respond to our reactions, if they wish, before anything is posted on our blog. Our views are very much in accord with yours, so it may be that you will have no further response; we simply want to offer you the opportunity to respond if you want.

We are in the process of responding to a professor who wrote us on Saturday with some excellent questions, and we hope to post something on that in the next day or two. We think your e-mail provides an excellent vehicle for us to expand on some of the points we are discussing in our response to the other professor's e-mail.

Sincerely,

AuthorSkeptics



Date: Tue, 3 May 2005 12:57 PM
From : "Jeff POWELL" (POWELL@law.duke.edu)
To : author_skeptics@allmail.net
Subject Re: Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

Dear AuthorSkeptics:

Your approach to dealing with respondents is admirable, and consistent with the overall insistence on honesty and fair dealing which you are advocating. I am personally grateful.

Sincerely yours,

Jeff Powell