We have received a thoughtful and revealing statement from Paul D. Carrington of Duke Law School, dean of the school for a decade (1978-88), addressing some of the issues which have been addressed by Judge Posner, Dean Velvel, and us, among others, and also raising new points. It is reprinted below.
Over his long career Dean Carrington has with unusual clarity and candor written about and participated in a wide range of legal areas. As background for those not fully familiar with his career, we recommend his personal website which can be found here.
Of particular relevance to this blog relating to academic standards at Harvard, Dean Carrington is a 1955 graduate of Harvard Law School, and his family connection to the school runs deep: both his father and the husband of his mother's sister (the legendary legal scholar Dean Charles T. McCormick of the University of Texas) also attended Harvard Law School. We strongly recommend the interview of Dean Carrington conducted as part of the Harvard Law School oral history project, which can be found here. In a future post we will likely mention Dean Carrington's comments about the leadership style of Dean Griswold, as we believe Dean Griswold's example may provide a benchmark for assessing the current leadership at Harvard Law School on matters of academic integrity.
As to the statement Dean Carrington e-mailed us for posting on this blog set forth below, particularly revealing, we think, is his first paragraph which suggests that, contrary to the assumption underlying Judge Posner’s recent post, the undisclosed use of ghostwriters may be a phenomenon found in American legal scholarship stretching back decades, at least among some scholars.
Rather than comment on each point made by Dean Carrington, we encourage comments from readers on any points of particular interest. We will reprint any comments from readers in future updates to this post, so they will appear below.
We thank Dean Carrington for taking time out of his busy schedule to address these matters, and we look forward to comments from readers on his statement.
Paul D. Carrington Duke University School of Law May 4, 2005
To AuthorSkeptics:
The failure of scholars to welcome co-authorships has long puzzled me, in part because it has seemed to me virtually costless to a named author to share authorship. My impression is that legal treatises are more often than not group work. Forty years or so ago, I was told by a very luminous legal scholar that chapters of his then recent book had been written by persons who have since achieved distinction on their own, but whose roles were not noticed in the publication. I was once offered and declined an invitation by a major publisher to put my name on a volume to be written in-house in exchange for a significant cash payment. They had no trouble getting other names more elegant than mine on their works. And I have been told by eminent scholars that they thought themselves entitled to full credit for having an idea and for taking full responsibility for any error slipping through their supervision.
But it is also my impression, based on conversations with former law clerks, that it is not uncommon for United States Circuit Judges or Supreme Court Justices to delegate much and on occasion all of their responsibility to a law clerk. I imagine that at least some of the authors whom Dean Velvel or others may complain about were once law clerks whose work appears in the Federal or even the U.S. Reports. And it is also my impression that partners in major law firms have slight constraint about presenting to their clients work that has been done by others.
Maybe we do need to find a way to establish a standard for dealing with the problem in all these contexts. It is not a problem known only to the academy. And meanwhile, Dean Velvel's demand for dismissal of those who may have transgressed an illusionary line seems to me quite out of order.
I must add an expression of my reactions to the anonymity of the “AuthorSkeptics.” I have on occasion used a pen name for the purpose of disclosing that my remarks were not entirely serious. I realize that the device was in common usage in the 18th century. But Alexander Hamilton lived in a much more troubled time; he could have been arrested for his utterances. That is surely not the case for this blog. In this circumstance, I find anonymity to be an exhibition of moral cowardice. This is a trait that is singularly unbecoming to lawyers. As between one who presents the work of others as his own and another who takes no responsibility for his utterances, I see no basis for choice.
Paul D. Carrington
paulcarrington.com, or
Box 90362, Durham, North Carolina 27708-0362
Tel.: 919-613-7040; Fax: 919:613-7231
e-mail: pdc@law.duke.edu
Here are our three comments on Dean Carrington’s statement.
1. Ghostwriting of federal judicial opinions. As we will be elaborating on in a separate post responding to an e-mail from another law professor, we concur with Dean Carrington’s comments on the ghostwriting of federal judicial opinions. It seems very well accepted that most federal appellate opinions are largely ghostwritten for judges and justices by their law clerks, and this apparently has been a common practice for some time. Recently this practice has been in the news due to analysis by at least one biographer of Justice Harry A. Blackmun.
We did some digging and it turns out Dean Carrington is right about a suggestion he makes in paragraph two of his statement (at least we think this is a fair summary of what he may be getting at): that one or more of the authors who people are complaining about taking credit for the writing of others may have written federal judicial opinions as law clerks for which the judges they worked took credit (so the issue of credit may not be one-sided). For example, Professor Laurence H. Tribe has publicly discussed his role in helping write important U.S. Supreme Court decisions while clerking for Justice Potter Stewart. See:
1986: Laurence H. Tribe, Justice Stewart: A Tale of Two Portraits, 95 Yale L.J. 1328, 1329-30 (1986);
1991: http://volokh.com/archives/archive_2005_03_20-2005_03_26.shtml#1111530233
2003: http://www.legalaffairs.org/howappealing/TribeGreenBagReprint1.pdf (page 295).
Our impression is that other law professors, particularly constitutional law professors who clerked on the U.S. Supreme Court, similarly on occasion discuss their past work in writing opinions, although perhaps not as publicly. Given his recent “Volokh Conspiracy” post on this point, Professor Orin Kerr may well be aware of other similar public statements, and we encourage him to e-mail us about the results of his inquiry, or else make a blog post on the results.
We would welcome comments on the possible relevance of the ghostwriting work many law professors apparently did as law clerks, which Dean Carrington has helpfully noted in this context. Perhaps the practice of law clerks ghostwriting opinions for judges and justices helps explain (if not fully excuse) the use of ghostwriters by some legal academics. After finishing a clerkship spent largely ghostwriting material for a judge, and then joining a law faculty, perhaps at least some legal scholars do not view it as odd, or particularly wrong, to hire students to do the sort of ghostwriting for them which they had recently done for a judge.
We are less confident of the following analysis, but we offer it for what it might be worth, without meaning to undermine our bottom line that the undisclosed use of student ghostwriters by law professors is a serious academic offense. Arguably, providing students with ghostwriting opportunities can be valuable training for students, particularly in helping prepare them to serve as ghostwriters for judges. (We're being serious here, even though it may sound funny.) Indeed, for a professor to hire students to ghostwrite significant amounts of his or her works may give the professor a valuable perspective into which students to recommend for top clerkships. After all, the professor knows that what judges and justices are really looking for is not necessarily the smartest and most learned students, but the students who are fairly smart, fairly learned, and at the same time, capable of ghostwriting judicial opinions on difficult subjects rapidly and with a minimum amount of supervision, which is an ability possessed by only a fraction of smart and well-educated law students. What better way for a professor to identify the best students to recommend for top clerkships than by hiring various students to ghostwrite various parts of his or her publications, and evaluating their work?
We would be interested in hearing from readers about whether law professors' past work experience ghostwriting judicial opinions might be a plausible partial explanation for the use of ghostwriters by legal academics, about whether as a normative matter the use of ghostwriters by judges should be seen as legitimating the use of ghostwriters by law professors, and about other matters which might relate to Dean Carrington's statement or our comments in this post.
2. Dean Velvel’s demand for the dismissal of President Summers and Dean Kagan. Dean Carrington suggests it is “quite out of order” for Dean Lawrence Velvel to demand the “dismissal of those who may have transgressed an illusionary line,” which we take to mean the line Dean Velvel perceives between accepted standards for authoring a work oneself, and the prohibition on using ghostwriters to write part of a work without in some way disclosing the reliance on ghostwriters.
As we will be covering in another post addressing an e-mail from another law professor, we do not see a sharp and distinct dividing line between the precise practices which constitute the permissible “authoring” of a work and the precise practices which constitute the impermissible undisclosed use of “ghostwriters." At least at the margin, we see room for debate about what is and what is not permissible. However, while we respect Dean Carrington’s opinion to the contrary, particularly because he has a great deal of experience in the field which we lack, like Dean Velvel we think the line is real, however indistinct, rather than being entirely illusionary.
The main point we want to make here, however, is to clarify what we see as Dean Velvel’s position. Dean Velvel has never called for the dismissal of those who he believes may have transgressed regarding the use of ghostwriters: Professor Ogletree and Professor Tribe. He has only called for the dismissal of the Harvard administrators who, he believes, have worked to sweep the ghostwriting charges under the rug by not even acknowledging the evidence of the undisclosed use of ghostwriters, much less imposing punishment for it (assuming it exists).
Our impression is that if Harvard administrators take some action to recognize that a scholarly norm has been violated regarding the undisclosed use of student ghostwriters, Dean Velvel would be satisfied with a penalty far short of dismissal of the transgressors, particularly because Dean Velvel has not disputed, to our knowledge, that setting aside the current matters that have landed them in the news, Professor Ogletree and Professor Tribe have a solid record of accomplishment over many years which has earned them a great deal of respect both at Harvard and nationwide. If some readers have a different view of Dean Velvel’s position, or if Dean Velvel would like to address this point, we welcome any and all comments.
3. Our anonymity. Dean Carrington’s comments about our anonymity address a relevant issue, and are eloquently put. We are open to comments, pro and con, on this matter to the extent people are interested. For our earlier discussion of this point in an e-mail exchange with Professor Bruce Jackson, including links to articles documenting that even some tenured professors at Harvard insist on remaining anonymous in making criticisms of the Harvard administration, see here. Our prior defense of our decision to remain anonymous may be unconvincing to many or even most readers, but we have little more to say on the subject, although we respect Dean Carrington’s negative view of our choice and we appreciate his candid criticism. It may be that many readers view us as cowards but, at least at Harvard, it appears we are in good company.
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