Our e-mail exchange with "Professor A"

We have been corresponding since late April with a professor we will call "Professor A" who is one of the hundreds of tenured law professors at the first six law schools to whom we sent this e-mail, which we ultimately sent to all tenured law professors at thirteen top law schools.

"Professor A" posed a number of very good questions about our past analysis concerning ghostwriting in academia, and in our e-mail response we did our best to answer them. The response of "Professor A" to our e-mail is, we believe, quite valuable in its suggestions for our future activity.

Below is the text of our e-mail exchange, with references to the identity of "Professor A" omitted. As is our habit, we have added various hyperlinks to help orient readers. Most of these were not in the e-mails we sent "Professor A," and thus the responses of "Professor A" cannot be read as involving any commentary on the particular hyperlinks we've chosen.

In an upcoming post we plan to offer some reactions to the most recent comments of "Professor A," and to set out our tentative thoughts about how to carry out some of what "Professor A" has suggested. Before offering these comments, however, we wanted to make this e-mail exchange available for our readers.

As always, we welcome reader comments, either made privately or for inclusion on the blog. If you want to make totally anonymous (but public) comments, you can do so using the companion blog we have recently set up, HPA Tips and Comments, at http://HPAtips.blogspot.com.

If you want to make comments which are both anonymous and private, you will have to take the trouble of using an e-mail account established under a pseudonym by which to e-mail us.

AuthorSkeptics



Fri, 29 Apr 2005
From ["Professor A"]
To "AuthorSkeptics"
Subject Re: Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

Will do. I'm behind, but I'll get to it.



Fri, 29 Apr 2005
From "AuthorSkeptics"
To ["Professor A"]
Subject Re: Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

Professor ["A"]:

Thank you for your response. You may be amazed to learn this, but during the past several days we have e-mailed all the tenured professors at six top law schools excluding Harvard (Yale, Stanford, U. Chicago, Columbia, NYU, and Michigan), and you are the first to give any response. We are not sure what that says about you, or about the hundreds of others we've contacted, but thank you for responding.

As you and anyone else interested will be able to see from a recent e-mail exchange with Dean Velvel we've had which will be posted on his or our blog, or both, by early next week, AuthorSkeptics plans to wait a reasonable period of time (probably at least a couple of weeks) to give law professors the time needed to consider these issues. We certainly do not wish to place unreasonable demands upon you or your colleagues, particularly with all the demands on your time involved with the winding down of the academic year.

After we've waited a reasonable period of time, however, as to any law professors who have not individually, or though some member of a given faculty authorized to speak on behalf of the entire faculty, spoken out about the matter of undisclosed use by law professors of student ghostwriters, we will begin to explore the issue of to what extent, if any, those remaining silent are complicit in the dumbing down of academic honesty in the legal world.

Sincerely,

"Skipper"



Sat, 30 Apr 2005
From ["Professor A"]
To "AuthorSkeptics"
Subject Re: Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

One useful first step (and maybe you have this on your blog but I'm writing offline at the moment) would be to define "ghostwriting."

95% of opinions in the federal courts are "ghostwritten" in some sense. Do you mean to include those?

In Germany, a professor will literally take the writing of an assistant, and just change the author's name: do you mean to include that?

Most law writing is filled with insane and unnecessary citation: is copying and pasting citations collected by RAs "ghostwriting"?

Major law reviews do extensive reworking of at least the notes of submitted articles. Is that "ghostwriting"?

It seems you would do a great deal of good just by mapping out the field of possibilities to flesh out the norm and focus criticism. For to lump what the Germans do into the same bucket as the changes made by a law review of the notes of a submitted article seems to me unfair at least.



Tue, 3 May 2005
From "AuthorSkeptics"
To ["Professor A"]
Subject Re: Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

Professor ["A"]:

Thank you for your e-mail, which we find quite valuable. I drafted up most of a response yesterday but had to switch to other matters. We expect to finish it up and send it to you tomorrow.

We think it might be valuable to readers to post either your e-mail or a summary (as you wish), and our response, although of course we would not include your name or any other information from which it would be possible to identify you, unless you consent.

However, as has been our practice in the past, before posting anything we would wait for any response from you that you might like to add. If for some reason you would object to our posting anything you wrote us, even a summary, then we very likely would go along with that, as our objective is to stimulate candid discourse on these topics and not simply to generate new material for our blog, and that objective is advanced in the long run by having respect for the preferences of those who take the time to e-mail us, even though under our policy we retain the right to post anything sent us, without identifying information.

Sincerely,

Skipper




Mon, 16 May 2005
From "AuthorSkeptics"
To ["Professor A"]
Subject Response to your April 30 e-mail

Professor ["A"]:

Thank you for your April 30 e-mail. We are sorry for our delay in getting back to you; we have been quite busy on other fronts during the past two weeks. Here is our substantive response to your excellent points. We have numbered the paragraphs for ease of reference.

We would like to post both your e-mail and our thoughts in this e-mail on our blog, as we believe the exchange of views might help clarify the area of debate in this area. However, unless you explicitly authorize it, we will not mention your name or information that could be used to identify you. If you have reactions to this e-mail and can take the time to write them up, please do, and please also tell us if we can print your response, and mention your name. If possible, we would like to post the e-mails sometime in the next week.

1. As to what to make of “ghostwriting,” we agree with your basic suggestion (or what we perceive to be your basic suggestion) that it helps to separate the descriptive question from the normative question. That process leads to the conclusion, which you may have been hinting at through your e-mail, that not all of what might be called “ghostwriting” is necessarily bad. To describe a work as having involved “ghostwriting” is not inherently pejorative.

2. Possibly this perspective will encourage others to participate in a candid discussion of the range of “ghostwriting” which it seems occurs in the production of scholarship by at least some American legal scholars, at least judging from Dean Carrington’s recent statement reprinted on our blog (disclosing his knowledge of a leading scholar’s uncredited use of ghostwriters decades ago), and judging from the recent cases at Harvard involving Professor Ogletree and Professor Tribe. So far, it appears, no one at Harvard has denied Dean Velvel’s suggestion that how their cases were treated implies that the use of student ghostwriters by Harvard professors is seen at Harvard as an acceptable practice not involving any deliberate wrongdoing, and that possibly such use of ghostwriters is even routine at Harvard.

3. The descriptive question -- of whether in a given instance any “ghostwriting” exists -- is, we believe, a fairly straightforward question, at least in most instances. The basic question, we submit, is whether the nominal “author” of a work was its sole writer. If the answer is no, then we believe “ghostwriting” is to some extent involved. That is, the work at least in part was written by someone who, with the permission of the writer, was not listed as an “author” of the work. That someone is properly called a “ghostwriter.”

4. Of course, if some of the material in the work was written by someone else whose words are not being used with the permission of the writer, that would not involve “ghostwriting” – it would involve what is conventionally termed “plagiarism,” and perhaps a copyright violation as well.

5. Some have argued that ghostwriting can be viewed as a species of plagiarism, in that words written by another are passed off as the words of the nominal “author” (Joseph Bottum, in his essay last September on Professor Ogletree, made that suggestion). Even if this perspective is adopted, we believe the issues raised by the use of ghostwriters in scholarship at American universities, including law schools, merit a separate examination.

6. As to ghostwriting, we have little if any concern for the ghostwriter. Presumably, in exchange for not receiving credit as an “author” of at least part of the work (the credit could be co-authorship of the whole, or a prefatory statement of the parts that were written by an assistant), the ghostwriter receives something of at least equal value, be it money, future job recommendations, the chance to rub shoulders with and learn from one more established in the field, etc. As long as this is done with the permission of the ghostwriter and no coercion is involved, we do not think ghostwriters are treated unfairly or unethically in being denied credit as an “author.” (Our view regarding this has been reinforced by an e-mail we received from a prominent legal scholar a few days after receiving your e-mail, which we plan to post in the future.)

7. Instead, we think the principal problem with ghostwriting is the one highlighted by Judge Posner: if under the relevant convention the typical reader would expect that the nominal “author” actually wrote the entire work, the undisclosed use of a ghostwriter to write a portion of the work may raise an issue of fraud.

8. We do concern ourselves with the ghostwriter in one respect. If, depending on the underlying convention and the specifics of the particular work, the nondisclosure is fraud or at least arguable fraud, we believe both the nominal “author” and the ghostwriter are implicated. That is, by participating in the ghostwriting arrangement, the ghostwriter may become involved in unethical, indeed fraudulent, conduct and might fairly be accused of acting wrongly, to the degree the ghostwriting arrangement is not ultimately disclosed to readers in some fashion. If this view is accepted, the ghostwriter may have an affirmative obligation to reveal the ghostwriting arrangement if the nominal “author” of the work refuses to do so.

9. There is obviously a spectrum of division of responsibility for the ultimate content of a written work. As we recently mentioned in a post responding to a statement by Dean Carrington which he authorized us to set forth on our blog, at the margin we think there can be reasonable debate about whether the production of a particularly scholarly work involved, to some degree, “ghostwriting.” Although the line between “authoring” a work and using “ghostwriters” may be hazy at the margin, we believe the line is real, and readily understandable to, and agreed upon by, both scholars and readers in the vast range of instances.

10. At one end of the spectrum, call it the left side of the spectrum, the nominal “author” does all the research on the scholarly work. He writes every word. No one suggests any edits to the manuscript. The work is published as written and edited personally by the author, without any changes. In this pure form, few works are probably produced this way, and for good reason: often a work will benefit from assistance with research, and with suggestions for edits.

11. At the other end of the spectrum, the right side, the “author” essentially “phones in” the work. For example, a law professor gets some ideas from some recent appellate cases for an article on the Double Jeopardy Clause, has a five-minute conversation with a student, and dispatches the student to draft the article for him. Two weeks later, the student presents the draft, the law professor glances through it, doesn’t change a word, and sends it off listing himself as the “author.” A footnote thanks the student for “helpful research assistance,” and later that year the student gets a glowing letter of recommendation for a clerkship. One certainly hopes that few works are so transparently ghostwritten in this manner at American universities, although from recent revelations one can hardly be confident that “authorship” of this sort is unknown, at least at Harvard.

12. Somewhere along the spectrum, one needs to locate a definition of what it means to be the sole “author” of a scholarly work, so that one can as a descriptive matter talk about whether or not what one regards as “ghostwriting” has occurred. We think that definition needs to be crafted with an eye toward traditional practice, so that everything on the spectrum falling to the left of the definition is what would be widely regarded as sole “authorship,” with no hint of “ghostwriting,” so there is solid consensus that it is proper. Apart from tracking tradition, we believe a significant benefit of this approach is that if a particular author of a particular work can meet the definition, no one can plausibly accuse him or her of making an undisclosed use of “ghostwriters,” and there is no need for further inquiry about the “authorship” of the work. There is a need for further inquiry only if the author of the particular work cannot meet the definition.

13. As to the specifics of an appropriate definition to mark a dividing line between what is sole “authorship” and what involves the use of “ghostwriters,” we think Dean Velvel’s definition, crafted last November in his e-mail exchange with Professor Ogletree, and recently reiterated with regard to the matter concerning Professor Tribe, is an appropriate definition, although we welcome suggestions from others as to alternative definitions. According to Dean Velvel, an author cannot fairly be accused of an undisclosed use of ghostwriters raising an issue of possible fraud if he or she can make the following two interrelated statements regarding the work in question (statements neither Professor Ogletree nor Professor Tribe has to date made about the books published under their name which are at issue):

1. Except for normal word changes made by others in the editing process, I personally wrote every word of the first and all subsequent drafts of the book/article.

2. Although I received and adopted facts, ideas, and suggestions from others, including assistants, those facts, ideas and suggestions were not presented to me in the form of drafts that were already written into the book/article or that I put into the book/article. Rather, I myself wrote the language in the book/article that reflects those ideas and suggestions.

14. We think Dean Velvel’s definition of the difference between sole “authorship” of a work and the use of “ghostwriters” reflects traditional scholarly standards. In accepting and endorsing this definition, we finding ourselves in agreement with the sense of Judge Posner (who has corresponded with Dean Velvel on these matters) that in American universities, including American law schools, the idea that a professor would publish a work solely under his or her name, much of which was actually written by students, without anywhere disclosing this fact is so removed from the typical reader’s expectation as to present an issue of fraud. If you will look back at the strongly worded reactions from various scholars and lawyers on the Ogletree matter which we summarized on our blog, it seems clear that a practice of using student ghostwriters and then not disclosing that fact is anything but well accepted. See here. In particular, these items are especially relevant to the traditional standards:

Boston Globe
Professor Lawrence Solum, "Legal Theory Blog"
Stuart Buck, J.D., "The Buck Stops Here"
"The Volokh Conspiracy"
Dean Lawrence Velvel, "Velvel on National Affairs"
See also this statement by Professor Glenn Reynolds.

15. This traditional definition of what it means to be the sole “author” of a work is strongly supported by the very strict rules about collaboration on written work set out in the Harvard Law School Catalog as we mentioned here.

16. To date, we have not seen any real challenge to our identification of the relevant norm: unless clearly stated to the contrary up front by the relevant scholar, the prevailing standard in American universities is that when a scholar is listed as the sole author of a scholarly work, he or she is representing that he or she actually wrote the work in its entirety, and did not accept drafts of portions of it written by assistants, or allow any assistant to alter a manuscript, or otherwise turn the text over to an assistant.

17. We do not think Dean Velvel’s test for separating sole “authorship” from the use of “ghostwriters” embodies too stringent a standard for “authorship” as applied to a American university scholar. Lawyer and prominent legal blogger Stuart Buck has observed:

[F]or scholars, the act of producing their own scholarly work is one of the two main responsibilities of their jobs (the other being teaching). When a scholar at a university puts his name to a book or article, no one thinks (or ought to be justified in thinking), "Well, he's awfully busy, and he's probably just putting out words that someone else wrote; but at least he agrees with what other people have written for him." Instead, the scholarly norm should be that a book or article represents the scholar's own research and deliberation . . . .

If academics don’t wish to do their own scholarly work, they should find another line of work, or at minimum should candidly disclose the extent to which they do not do their own scholarly work.

18. Dean Velvel’s definition leaves ample room for scholars to obtain substantial assistance in the researching and editing of a work while still qualifying as the sole “author” of the work, without any need to disclose the specifics of the research and editing done by others. A scholar can have numerous research assistants scour libraries and electronic databases for pertinent sources and other information. A scholar can even have these research assistants do extensive summaries of relevant material to save the scholar the time required to read everything located by the research assistants. The scholar can receive extensive help in shaping his or her overall thesis, and extensive help in editing his or her manuscript, greatly improving the quality of the end product, even if the result is that the scholar appears to be a much better writer than he or she actually is, and even if the end product is of far higher readability than the scholar could possibly produce without aid, even given unlimited time. The only constraint imposed by Dean Velvel’s definition, which is essential to preserving a bright-line definition between what is traditionally understood to be the work of a scholar and what is understood to be the “production” of a “managed book” with the person whose name appears on the book working much like a movie director (to borrow some of Judge Posner’s terminology), is that the scholar must retain sole control of the manuscript. That is, the scholar must actually write, or rewrite (in the case of implementing suggested edits) every word. The scholar cannot delegate to an assistant the task of writing up even a portion of the work in draft form. That goes over the line identified by Dean Velvel, and clearly involves “ghostwriting.”

19. Of course, as we note above, to say a particular scholar on a particular work has strayed from the traditional norm at least in part by accepting help from a “ghostwriter” is not necessarily a pejorative conclusion. On occasion, it may make sense to accept such help and, even if doing so falls somewhat short of the scholarly ideal, depending on relevant conventions and the disclosures made to the reader, there may be nothing wrong with it. Precisely because of how stringently Dean Velvel’s definition has been crafted, it may well be that some practices falling just to the right of the definition on the spectrum, which are close to the margin, are reasonable scholarly practices that should not be criticized, or at least should not be criticized much, even if the specifics are not disclosed up front in publishing a work.

20. However, to the extent a scholar cannot meet the definition as to a particular work, we believe that if questioned about such matters, the scholar should be willing to candidly disclose what practices they have engaged in which fall to the right of the line, as Professor Tushnet quite admirably did last fall in a blog post relating to a minor portion of his work, here.

21. As to the mechanics by which a scholar has produced a particularly scholarly work, in light of recent events at Harvard which have cast doubt on the degree to which even leading scholars adhere to traditional scholarly standards, we do not believe silence is a viable option. If a scholar has produced a work and has neither stated up front that he or she wrote every word of the work, nor has disclosed to what extent one or more people who assisted on the work drafted any portion of it, then the status of the authorship of the work is legitimately in question. If an inquiry is made of the scholar as to that work, we believe the scholar should either: (a) make the two statements suggested by Dean Velvel regarding the work, if he or she truthfully can do so (which various scholars such as Judge Posner and Dean Velvel have done, in stating they write every word of all their works); or (b) make a statement similar to the statement made by Professor Tushnet disclosing the extent to which he or she did not write every word of the work, but instead accepted some drafting assistance from one or more people.

22. Especially when leading figures such as Judge Posner, Dean Velvel, and Professor Tushnet are quite willing to make statements about whether they accept drafting help from others in producing their works, we do not see how a legitimate scholar can refrain from making a statement when questioned about this with regard to a particular work in which the scholar said nothing either way about this up front. Given the cloud which recent events at Harvard may be placing over scholarly practices in general, scholars in future publications may wish to state up front the degree to which in producing the work they met, or feel short of, the two statements suggested by Dean Velvel.

23. With this as background, here are our specific reactions to the several questions in your e-mail:

a. “95% of opinions in the federal courts are ‘ghostwritten’ in some sense. Do you mean to include those?”

24. Yes. As we stated in a recent response to a statement from Dean Carrington of Duke, it is our impression that the vast majority of federal judicial opinions, especially at the appellate level, are “ghostwritten,” at least according to the definition we are using. Apparently, the clerks typically start with the judge’s initial decision and a relatively skeletal outline of points to be covered. Typically, one hears, a judge will then carefully review, revise, and edit the draft opinion, although the intensity of such work probably differs greatly from judge to judge. Whether this practice raises issues of fraud depends we think, as Judge Posner suggests, on conventions in the field.

25. Although Dean Velvel might disagree with us, we doubt it raises issues of fraud, as the practice seems very well accepted among federal judges and lawyers who read their opinions, at least where it is actually the judge who is initially deciding the case, which one hopes is always true.

26. Of course, that the practice of law clerks ghostwriting opinions for judges likely raises no issues of fraud does not mean it is the best practice, or even a good practice. If judges did more of their own work both judicial opinions, and the judicial thinking that goes into them, would likely be better. If judges did more of their own work, opinions would likely be shorter and more to the point, and read less like law review articles written by young lawyers who just finished spending a year or two editing law review articles and know little about the law besides what they read in law review articles and in reported cases.

27. So our answer is yes, federal judges do make extensive use of ghostwriters, by all accounts. However, it appears no fraud is involved, as this practice is apparently well accepted. Serious issues of fraud are posed, however, where law professors engage students to ghostwrite portions of their works for them, as this practice is not well accepted. Indeed, until recent events at Harvard, it appears that there was very little understanding that any law professors did this sort of thing.

b. “In Germany, a professor will literally take the writing of an assistant, and just change the author's name: Do you mean to include that?”

28. Yes. As a purely descriptive matter this clearly involves “ghostwriting,” and seems to be very similar to what Professors Ogletree and Professor Tribe assertedly did in having students wrote up portions of their books. Normatively, as to the practice of university scholars in Europe, from both Judge Posner’s post and your own comments (we know nothing of the subject), it seems that the practice, at least in some countries, is for scholars to use student ghostwriters to write much of the material appearing under their names, without listing the student ghostwriters as co-authors, and perhaps without even stating in a preface that the students actually wrote much of the work. It seems this practice does not raise issues of fraud, assuming that it indeed is very well accepted in Europe, i.e., so that if the scholar says nothing at all about the division of labor, the typical reader will assume much of the actual writing was done by students. At the risk of sounding parochial, rather than delve further into the point, we will let Europeans worry about Europeans.

c. “Most law writing is filled with insane and unnecessary citation: is copying and pasting citations collected by RAs ‘ghostwriting’?”

29. We think the descriptive, definitional point here is one on which reasonable people might disagree. However, for clarity, using Dean Velvel’s definition we would classify this as involving the use of “ghostwriters,” so that a scholar copying the citations collected by RAs would not be able to make the two statements suggested by Dean Velvel, and thus if questioned about the work would reasonably be expected to give an explanation as to his or her use of RAs to collect these citations.

30. As your question suggests, we think it is easy to justify such a use of RAs in legal scholarship, particularly on articles which will be published in student-edited legal journals. It gives away little to disclose that at least one member of the motley crew known as “AuthorSkeptics” has experience on a law journal and is well aware that on occasion student editors will insist on the inclusion of citations which have little relation to the text and main argument of an article whose inclusion is at least arguably unnecessary if not insane. We do not think people will draw an adverse conclusion if as to a particular work a scholar discloses that research assistants wrote us lists of citations, and even summaries of the citations, which were inserted into the work.

31. The suggestion in your question that the use of RAs to fill out peripheral citations is acceptable, and our view that this involves “ghostwriting” but does not seem objectionable (although scholars should disclose it) is reinforced by an e-mail we received from another prominent constitutional law scholar a few days after receiving your e-mail, which we plan to feature in a future post. In his e-mail this scholar stated: “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.” Specifically corroborating your point about the use of RAs to comply with sometimes “insane” student-imposed citation conventions, this scholar also stated: “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.”

32. In conclusion, we read your question, and this other scholar’s comments, as suggesting a strong basis for the view that it is acceptable for an American university law professor to have students ghostwrite at least non-textual footnotes containing citations on points relatively tangential to the main thrust of a scholarly work, that is, footnotes consisting chiefly of citations documenting points which are relatively obvious to the author and other specialists in the field, but are required the perhaps absurd, even insane, citation conventions currently prevailing.

33. However, our view is that even this sort of ghostwriting needs to be specifically disclosed by scholars. The ability to make the two statements set out by Dean Velvel should be reserved solely for scholars who actually write every word of their works. We believe there is a difference, and that ordinary readers perceive a difference, between a scholar writing every word of a work and a scholar delegating part of the writing, even as to somewhat tangential citations, to one or more other people. For the benefit of those scholars who write every word of their works, including all of the citations in the work, including those citations required only to satisfy absurd citation conventions, we believe only these scholars should have the benefit of saying they do not use “ghostwriters” to any degree and should be spared the burden of any further explanation as to the mechanics of how the scholarly work was produced.

d. “Major law reviews do extensive reworking of at least the notes of submitted articles. Is that ‘ghostwriting’?”

34. No, at least not in general. As stated above, we believe a scholar can truthfully make the two statements set out by Dean Velvel even if he or she receives extensive editing assistance. The key is that the scholar write every word of the initial manuscript, and retain complete control over every word of the manuscript during the editing process. Perhaps we lack adequate information about the editing process at law reviews, but our impression is that the student editors at law reviews generally do just that -- they edit the manuscript, by making numerous suggestions on the content and presentation of the analysis, on style, on grammar, on spelling, on corrections in citations, etc.

35. If by “reworking” of submitted articles, even just the notes, you mean “rewriting,” we think that would constitute the involvement of “ghostwriting” using our definition. We question why this would legitimately occur at a law review. We question why a law review would accept for publication an article which its editors believed had to be rewritten in order to be acceptable for publication (for example, we think it would be wrong for students to accept an article with such deficiencies to help an assistant professor at the law school in obtaining tenure, if a like article submitted by someone not teaching at the law school would be rejected).

36. If rewriting is necessary, we question why the student editors would do the rewriting rather than insist that the scholar who submitted it do the rewriting. However, if for some reason an article is accepted and then students rewrite portions of it, we believe that should be disclosed up front and, if not, by the scholar and law review if questioned later.

37. We think a better solution, however, and one that would promote better scholarship overall, would be for law reviews not to accept for publication any article which its editors believe would need to be rewritten in any substantial part to be acceptable for publication. We believe law reviews should accept for publications only those articles which they believe will be suitable for publication after a thorough review process which is limited to “editing” of the article, traditionally understood.

Sincerely,

AuthorSkeptics


Tue, 17 May 2005
From ["Professor A"]
To "AuthorSkeptics"
Subject Response to your April 30 e-mail

Thanks for your careful work. In general, I agree with your analysis, but I have two brief responses. Because I am overburdened by my own work, I don't have the opportunity to follow up on this conversation completely. I'd therefore prefer you refer to me generically if you do refer to me.

Re judges: I think it is too uncritical to accept the practice of judges as you do. No doubt insiders understand it. But the vast majority of the public doesn't. More importantly, your way of treating it doesn't give any incentive by anyone to behave differently (i.e., better). Posner is lumped with the average clerk-writing judge. I'm not sure what the remedy is, but the laxness with which you deal with judges seems to me inconsistent with the rigor you apply to the academy.

Re notes: It might be useful to make a distinction about research borrowing the idea of "merger" from IP law: If there's only one real way to express something, and if it's acceptable to have RAs do research, then a professor who merely copies the single way to express it isn't "ghostwriting." E.g., if the question the RA answers is: What are the leading cases from the courts of appeals on question X," and she responds: "those cases are: A v. B, 234 F.3d 1211 (8th Cir. 1992), . . ." then there shouldn't be any problem with simply copying that cite from one document into another. The idea that the author has to "write" as in type something seems both too restrictive and not restrictive enough -- too restrictive, because it produces unnecessary work, and not restrictive enough, because the real work of the academic should be to verify the citations, which isn't tracked at all by the rule.

This suggests to me that there's something insufficiently subtle in Dean Velvel's rule. It seems to me there should be nothing wrong with incorporating the proper work of a research assistant into one's writing. What is that proper work? Research. It is clearly our norm not to require the professors to pull books from the shelves, and read through 100 cases to discover the 2 that are relevant. That work is properly delegated. It in turn produces a certain result: assertions of fact that must be included in writing. How they get incorporated seems less important if they're permitted to be incorporated at all. Thus, when I read an article, I assess its writing as the author’s; I don't at all think or care who "wrote" the string cites in the notes, though if they turn out to be false, I certainly would hold the author responsible for them.

This in turn suggests are more systematic effort that you should undertake if you're to be accurate in your efforts to separate descriptive from normative: Why don't you do a survey of legal academics to determine what they think the practice is? Something systematic seems necessary if you are to be true to your method of making ought follow from is. And even if you do that, I would suggest you deal with this in a less judgmental, more constructive way, than the issue seems to have been framed. It is at least clear that there's uncertainty about the underlying "norm" and "practice." Rather than adjudicating past behavior in light of that past uncertainty, why don't you develop a list of principles to which professors can pledge. That would seem a constructive and clarifying procedure, much more constructive then forcing people to out themselves on the basis of an uncertain, and insufficiently established, line of "appropriate behavior." That procedure would still permit the criticism of the extremes -- I take it everyone agrees re the behavior alleged about ‘Tree and Tribe. But it would focus attention on setting a standard, rather than defending different lines.

Finally, let me say that your anonymity notwithstanding (and it is weird, at least, isn't it, that you're anonymous yet forcing transparency), I've admired greatly that you are doing this, and the manner in which you are doing this. You are doing our profession a great service. Thanks.



Date Tue, 17 May 2005
From "AuthorSkeptics"
To [“Professor A”]
Subject Your e-mail

Dear Professor [“A”]:

Thank you for your very lengthy and prompt e-mail.

We tend to agree with some of your comments on judges (which we'll very likely follow up on in future posts) and many of your comments on non-textual footnotes, and on the need for a forward-looking survey of academics which might produce a workable definition of accepted "authorship" practices which is widely viewed as acceptable, and which also leaves something for research assistants to do: research.

A professor who wrote us a few days after you first wrote has said some similar things, and has indicated he's willing to be identified by name, and we expect to post that in the next few days.

If it is okay with you, we would like to post our complete e-mail exchange, omitting of course your name and e-mail address . . . .

So you can see roughly what it would look like, here is the private blog we use for drafting posts (we change the url periodically, so it would be hard though not impossible to snoop, though we only post fairly final drafts for final comments, anyway): [omitted]. What we've posted is about what the final post would read, except we'd reduce many of the urls to hyperlinks embedded in words, and would add some hyperlinks at various points to orient readers.

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Sincerely,

Skipper