Dean Velvel on Judge Posner on Plagiarism

We strongly recommend this wonderful, long post by Dean Velvel of last week, in which touches on the Harvard plagiarists by noting how little they really suffered on account of the scandals.

Dean Velvel on Dean Kagan

Recently Dean Velvel posted some very negative remarks about Dean Elena Kagan.  Here.

More Plagiarism By Charles Ogletree

The Harvard Crimson recently published an open-and-shut case of Professor Ogletree committing yet more plagiarism in the 2004 book which was apparently ghostwritten for him (at least in part) by students.  Four sentences were lifted, with only minor wording changes, from a 1996 book by University of California professor Roy Brooks.  Story here.  New York Times followup story here.

Not entirely coincidentally, shortly after the Crimson story appeared, a website sprung up fully documenting all the details, including copies of the relevant pages of each book.  It's authored by one "R.O. Denver."  Here. Given the website, we see no need to offer our independent discussion.

Disclosure:  "R.O. Denver" is a pseudonym for a law professor with whom we've corresponded in the past year, and we knew about the tip to the Crimson in advance (indeed, we suggested that Denver contact either the Boston Globe or the Crimson, given their past interest in Harvard plagiarism stories).  For professional reasons the professor must remain anonymous, but the professor has authorized us to state that he or she teaches at a law school somewhere east of the Mississippi and is generally viewed as a political "conservative" (at least by heavily liberal law faculty standards), though that orientation had no role in the professor's decision to provide the tip (according to the professor).

New Harvard Crimson Story

Yesterday's Harvard Crimson has an informative reprise of the Harvard plagiarism/ghostwriting stories.  Here.

Dean Velvel on Dean Kagan

Recently Dean Velvel posted some comments (in the context of e-mails with Harvard professor Howard Gardner) on Harvard president Lawrence Summers leaving -- and on the prospect that Dean Elena Kagan might take his place!  Here.

Confirmation That Tribe's Assistants Wrote "Large Tracts" of His Treatise

Last week Dean Velvel had a long post, of excellent quality as usual, discussing the problem of ghostwriting and addressing yet again the Tribe/Kagan affair as it relates to the "ghost in the room."  You can read it here.

Of particular interest is Velvel's report that he's starting to think we may well be correct in our assertions (in part based on constant talk at the law school) that for years Tribe has been running a ghostwriting operation in which his students or former students draft most of his books and articles:

"I spoke with a professor who told me, fortuitously, that Tribe had asked him to work on American Constitutional Law when he was a student at Harvard Law School, and he knew several people who had done so. (Working for Tribe was, he said, as one would think, a plum job that would lead to recommendations for prestigious judicial clerkships, that would lead to other prestigious jobs, etc.) The people who had worked for Tribe, said this professor, had written large tracts of Tribe’s treatise."

Also, Dean Velvel discusses in the most detail ever the reasons for thinking that Dean Elena Kagan had a conflict of interest when she decided to involve herself in the investigation of the ghostwriting and plagiarism charges against Professor Tribe in connection with his 1985 book God Save This Honorable Court.  The gist of it:

So . . . . it begins to look, does it not, as if the Dean of Harvard Law School, one of the two persons (President Summers being the other) who should have but apparently did not punish Tribe, was one of the participants in what some people think was "in effect a ghostwriting mill" that Tribe ran to prepare the treatise which is one of the main components of his fame. If all this is so, there was no way in hell, was there, that Kagan could have punished him for having had one or more persons ghostwrite (very large?) portions of his book on confirmation of Justices? (It is claimed by some that the book was in effect written for him by a student, and now Democrat politician, named Ron Klain.) I mean, if all this stuff about Tribe running a ghostwriting mill is true, then Kagan was a participant in the ghostwriting machine by which Tribe wrote his treatise (and for all I know may have gotten various jobs partly because of his recommendation(s)). How could a participant in his ghostwriting mill punish him for it?

Oh yes, one could say that Kagan was in a different position than Tribe back in the ’80s. She was a student. She was no doubt eager to win Tribe’s plaudits and approval and get recognition and recommendations from him and to get prominently published thanks from him in his book. One might almost sympathize with her if one didn’t suspect for various reasons that she likely is one of those east coast types, one of those Harvard/Yale types, like the Clintons, for whom she worked, who would run over their grandmothers to get ahead. Regardless, however, how could Kagan punish Tribe for conduct she had participated in? ’Tain’t likely, Jeb.

Recent blog post on Professor Tribe

The blog "StoneHeads," of which we confess we know nothing, has a discussion of the Tribe ghostwriting/plagiarism affair, here.

More Harvard Parody Posts

Several more parody songs have been posted on the Harvard Parody blog (we discussed the initial appearance of that blog here).  They're entertaining and, in our view, quite accurate concerning the substance.  We thank "Frumpy Clown" for his e-mail alerting us to the update, and we look forward to seeing future the Harvard parodists' future efforts.

The Tribe Abandonment: summary of news and blog items

Since we last posted a week ago, there has been much additional coverage of Professor Tribe's abandonment of his treatise, strongly confirming our initial sense of this as a major development relevant to this blog and worth substantial attention.

Although we are busy on other matters related to this blog and doubt we will devoting much more attention to Professor Tribe specifically in the next few weeks, we have prepared the below summary of these news and blog items, which we set forth in chronological order.

For completeness, we have included the early items mentioned in our initial post. We will do our best to list future news and blog items in updates to this post (at the bottom).


May 20

Leading Supreme Court journalist Lyle Denniston got the scoop on Professor Tribe's announcement, and has this post on SCOTUSblog (note also two comments by readers).

SCOTUSblog links to a low-quality PDF version of Professor Tribe's letters here.

"Fantasy Life" has a post generally supportive of Professor Tribe's announcement, relating to the incoherence of current constitutional law doctrine, entitled “Giving Up Hope”.


May 21

Lawyer and blogger extraordinaire Howard Bashman, on "How Appealing, has links to the Denniston commentary and the low-quality PDF file, here.


May 22

Law professor Orin Kerr has a very thoughtful commentary on "Volokh Conspiracy," entitled "Professor Tribe and the Constitutional Moment."

Law professor Jack Balkin has a very thoughtful commentary on his "Balkinization" blog, entitled "Tribe Says 'No Mas'." Note also three comments from readers, in particular this one: "The snarky explaination, of course, is when a man has been caught committing plagiarism, it's scarcely a suprise if he kills his latest opus before it faces critical examination. All face saving explainations aside . . ."

Roger Schlafly on "Roger's View," holding to his staunchly negative view of all things Tribe, opines here.

A recent law school grad and a professed fan of Professor Tribe, on "Expressio Unius," here, expresses difficulty understanding Tribe's explanation of why he is abandoning his treatise. Suspecting that Tribe simply decided he didn't want to do the work needed to complete the third edition of his treatise, this lawyer concludes: "I think Tribe is cheating here."

“Politics, Economics, and other stuff” has this short note.


May 23

Paul Horwitz, a law school professor, on "PrawfsBlawg," posts this lengthy dissent from Professor Tribe's anouncement, which we believe merits close attention. Although "sympathetic" to Tribe's perspective, Professor Horwitz does "not think the times make a treatise impossible," and he wonders whether Tribe believes it is impossible because he is "too close to the maelstrom he describes."

Professor Horwitz thinks "Tribe overstates the extent to which a treatise was unproblematic in 1978, 1988, and 2000, when he published his other iterations of the treatise."

Professor Horwitz thinks Tribe has overlooked how modern technologies allow adaptation to the transience of the enterprise of constitutional analysis.

Professor Horwitz "fear[s] that [Tribe] is experiencing a postmodern kind of anxiety of influence" about the inability of any treatise to remain magisterial during such fast-changing times.

Professor Horwitz hopes Professor Tribe can "be persuaded to make the second volume available, if only in an online form that recognize[s] the necessarily transient nature of the work."

The ever-reliable commentator on all things Tribe, the ACSBlog, has this short summary.

“The Public Trust” has this short post.

"Standards of Decency" has a minor comment, here.


May 25

On May 25 we made our initial post on Professor Tribe's announcement, here.

About two and a half hours after our post, which noted the danger of eyestrain due to the "very low-quality scanned copy" of Professor Tribe's letters posted on SCOTUSblog in PDF format, Tom Goldstein of SCOTUSblog announced here that a higher-quality PDF file was now available on the Green Bag website (although massive in size, as for some reason the PDF file was not created from the original Word file but was created by scanning the printout, so that the electronic versions of the letters posted and annotated on our blog remain the easiest way to access their content).

Note that a SCOTUSblog reader, Les Swanson, appended a comment to Mr. Goldstein's post noting that Professor Tribe's lengthy letter embraces "a kind of Hegelian idea about theorizing." Upon rereading Professor Tribe's letter, we realized Mr. Swanson is right: in his letter Professor Tribe sets forth a Hegelian dialetic, repeatedly using (in paragraphs 11, 14, 17, and 48) the three terms typically used in dialetical analysis: "thesis," "antithesis," and "synthesis." The repeated use of these terms makes fairly evident that much of the point of Professor Tribe's letter is to offer an Hegelian explanation of why it is supposedly impossible, currently, to write a constitutional law treatise. For anyone familiar with Hegel, Mr. Swanson's observation goes a long way toward explaining why Professor Tribe's lengthy letter is, at least in places, somewhat incomprehensible, perhaps even nonsensical. See, for example, here, here, here, here, here, here, here, here, and here.


May 26

Howard Bashman posts again, here, to mention the non-fuzzy PDF now posted on Green Bag, and to report: "Upon learning of Professor Tribe's decision last week, I decided to try my hand at drafting the second volume of that treatise, and I'm pleased to report that the effort is already quite close to completion." This comment generated substantial ridicule of Bashman and ancillary commentary on the "Greedy Clerks" discussion board, here, here, here, here, here, here, here, here, here, and here.

"BoleyBlogs," an excellent news feature of the library staff of the Lewis & Clark Law School, has a brief summary here.


May 27

Having a bit of fun with Professor Tribe, leading legal journalist Tony Mauro has an article in Legal Times, entitled "Laurence Tribe's Big Surprise." Somewhat differently than we depicted Justice Breyer's inquiry in our initial post (as politely but firmly pressing Professor Tribe on why he had not updated his treatise in 17 years, similar to how Harvard president Lawrence Summers pressed Cornel West, a University Professor, on his lack of recent serious scholarly work), Mauro's take is that Justice Breyer had only "asked him casually how he was coming on the second volume." This allows Mauro to draw a stark contrast between the inquiry and the response. In response to this casual inquiry, Mauro tartly notes, "Tribe decided to write Breyer back," in a "Dear Steve" letter spanning 12 single-spaced pages. In so doing, we assume Mauro intended to highlight the publicity stunt aspect of how Professor Tribe used a casual inquiry from Justice Breyer as a platform for his announcement that he was abandoning his treatise. If in fact Justice Breyer's inquiry was only a casual one, we question why Professor Tribe would feel free to use it as a launching pad for his lengthy letter, in effect using a sitting Supreme Court justice as part of a publicity stunt. We also wonder whether Justice Breyer was a willing participant in any such publicity stunt. Giving both him and Professor Tribe the benefit of the doubt, unlike Mauro we continue to read Justice Breyer's inquiry as a serious, not casual, one.

Mauro's article includes critical comments from two major scholars. First is law professor Suzanna Sherry (who coauthored a book to which we referred several times in our annotations), noting that Tribe "is 'a little late in realizing there is no grand unifying theory.'" Second is law professor Ronald Rotunda, the coauthor of a leading constitutional law treatise which is very much up to date, who disagreed with Tribe's view that it is impossible to do a treatise at this historical juncture. Professor Rotunda dryly observed that he "can sympathize" with Professor Tribe's decision to abandon his treatise, as "[i]t's a lot of work to synthesize" current developments and keep a treatise up to date. Reasonable readers may conclude that, between the lines, Professor Rotunda is calling Professor Tribe lazy.

On an entertaining new legal blog called "trusty getto," a Michigan lawyer, Cameron Getto, helps illustrate our point that Professor Tribe's creative use of a Hegelian dialectic to conclude that writing a constitutional law treatise currently is impossible helps explain why some aspects of his letter are incomprehensible, bordering on nonsense. Mr. Getto singles out this sentence by Professor Tribe (which occurs in paragraph 14, here), which uses two dialectical terms ("antithesis" and "synthesis"), as particularly incomprehensible:

At such potential turning points, and until more is known about the antithesis and about the dynamics of the battle ahead, attempting to proclaim a new synthesis would bespeak utter hubris were it not so manifestly quixotic.

Mr. Getto comments: "Were I to spend the next 90 years trying to come up with that sentence, or one similarly obtuse, I am certain I could not."

"Law Librarian Blog" has a short summary of Professor Tribe's announcement, here.

In reaction to the comment of one law professor that Tribe's decision to abandon his treatise is "like Michael Jordan leaving basketball at the top of his game," Lawgirl left this perhaps apt comment on "The Legal Reader": "It's like Paris Hilton breaking up with Nicole Richie before the fourth season of The Simple Life."

Nick Rogers has a post provocatively titled: “Tribe: Can’t Stand Heat, Leaving Kitchen.”

"NESLReference," from the New England School of Law, has a short post, together with a sarcastic comment by a reader, here.

JD2B has this short item.

“Creep and Blink” has this short, approving, post.

The blog of one Federalist Society chapter has this generally favorable comment.

On "BuzWords," one liberal law professors counts Professor Tribe's announcement as the # 1 low of the week.

On "inter alia," a law student has this very favorable comment about Professor Tribe's treatise.


May 28

On "Balkinization,"law professor Mark Tushnet has this remarkably negative post, in which he questions whether Tribe's treatise has had any real importance, stating: "my sense is that the treatise was not terribly successful in the legal academy." Professor Tushnet notes that although it has been cited in "a surprisingly large number" of Supreme Court opinions, his sense is "that the citations were not on any analytically interesting points." "One could use the treatise to gather citations to obscure cases, or to important cases on obscure issues, but I'm just not sure that it had any larger uses."

In a comment on Professor Tushet's post, pseudonymous law professor "L.P. Anderson" agrees with Professor Tushet that Tribe's "treatise has had little real impact within the legal academy," and ventures that "[p]robably a good percentage of academic cites" to the treatise are a result of "Tribe's irritating tendency to unfairly attack other scholars for work he supposedly did first," when they don't cite his treatise. Anderson also sets forth a historical anecdote to buttress a statement made by Professor Tushnet in 1980 that Tribe wrote the treatise principally out of ambition for public office, so that his abandoning it now makes sense, as his opportunity for public office is now gone. Anderson's comment is reprinted on the "Disgruntled Law Prof" blog, here.


May 29

Professor Tribe’s hometown paper, The Boston Globe, had a bit of fun with Professor Tribe's announcement. It ran an essay by Joshua Glenn, entitled “No Time for Treatises,” describing why Professor Tribe is now “a little less busy.” Lest anyone miss that the essay was not being run to lionize Professor Tribe for his announcement of what he would not be doing, the Globe mentioned Professor Tribe had made this announcement in "a self-described 'entertaining journal of law'" which features "Supreme Court bobbleheads." And in a twist that even we view as rather nasty, to get across that it meant to ridicule Professor Tribe, the Globe ran the essay accompanied by this photo of him:



We certainly hope (for everyone’s sake) that this is the worst photo ever taken of Professor Tribe. Of course, Mr. Glenn's official Globe photo is nearly as bad:



Perhaps Mr. Glenn decided Professor Tribe should share his pain. We're sure glad Mr. Glenn lacks access to photos of us.

On "The Right Coast," law professor Michael Rappaport adds his name to the group of professors who do not view Professor Tribe's treatise as particularly significant. "Juris Pundit," in this comment, seconds Professor Rappaport's criticism of the romanticizing of Tribe's announcement.

In a comment about Professor Tribe, "Fumare" has this short post amusingly entitled, "Tribe flies when you're having fun." More harsly, in a comment to the post, Professor Tribe is described as just "a quitter."


June 1

“BarclayBlog,” of Syracuse University College of Law, has this brief post.

Cambridge Surprise: Professor Tribe abandons his treatise

In a "Dear Steve" letter dated April 29 and publicly released May 20, one of the main current subjects of this blog, Professor Laurence H. Tribe of Harvard Law School, has announced what he acknowledges is his "perhaps surprising" decision to abandon all work on the remainder of the third edition of his constitutional law treatise. Near the end of a companion "Open Letter" to readers elaborating on his decision to abandon the project, Professor Tribe states he will "let the treatise I have written rest without publishing any further volumes or versions."

The "Steve" of this "Dear Steve" letter is Justice Stephen G. Breyer of the U.S. Supreme Court. As Professor Tribe relates in his letter, Justice Breyer had asked him "about the projected second volume of the third edition of American Constitutional Law." Evidently even a jurist as polite as Justice Breyer who apparently is on friendly terms with Professor Tribe could not help pressing Professor Tribe on why he had not done a full update of his treatise in the past 17 years (the last full update was the second edition published in 1988). Indeed, as far back as 1999 (see here, footnote 73), Stanford law professor Pamela S. Karlan, a fellow liberal legal scholar, observed: "Tribe's treatise is now seriously out of date and awaiting a new edition."

Such high-level scrutiny of the scholarly output of a University Professor at Harvard is relatively rare, and brings to mind the famous incident in which Harvard president Lawrence Summers questioned Professor Cornel West about his lack of recent major scholarly work. See here, here, and here.

We commend Justice Breyer for pressing Professor Tribe on this matter, and for his success in eliciting a detailed explanation from Professor Tribe. We believe Professor Tribe's answer to Justice Breyer's query gives a green light for future efforts by us and others to pose questions to Professor Tribe on other matters relating to his scholarship, particularly aspects of the ghostwriting and plagiarism charges which have been explored on this blog, the pertinent facts of which Professor Tribe has not yet disclosed.

Such matters involving possible violations of standards of academic scholarship are more important for Professor Tribe to address than questions about why 17 years have passed since he last fully updated his treatise, and whether it will ever be finished. That is, matters involving alleged affirmative misconduct are more important for Professor Tribe to address than matters involving a mere failure to keep his book up to date. It seems reasonable, therefore, to expect that when politely asked about them in the future, Professor Tribe will be forthcoming about the facts relating to these charges of alleged affirmative misconduct, which so far he has not addressed.

We first learned of this development on Howard Bashman’s “How Appealing” blog, here. For important posts on SCOTUSblog, which is hosted by lawyers who on occasion work with Professor Tribe, see here and here. For other commentary, see here, here, and here.

As we have mentioned in various e-mails to our regular correspondents, we believe this development in general, and specific aspects of Professor Tribe’s lengthy explanation of his decision to abandon work on his treatise, are relevant to a number of issues covered by this blog. Time permitting, in the next several weeks we will try to discuss various points which have occurred to us and which have been suggested by some of our regular correspondents who have read Professor Tribe’s letters and have commented on them to us.

However, our principal current agenda on this blog remains one of working to explicate a definition of what uses of research assistants is consistent with traditional “authorship,” as distinguished from what uses involve reliance on “ghostwriters” which, if undisclosed to readers, raises issues of fraud.

In the meanwhile, below we have reproduced below the text of Professor Tribe’s "Dear Steve" letter and his much more detailed "Open Letter," numbering all the paragraphs consecutively so that we and readers may easily refer to specific paragraphs as needed. Our reproduction of the letters may be especially appreciated by readers who are prone to eyestrain, as the PDF version of the letters posted on SCOTUSblog is a very low-quality scanned copy. Indeed, the PDF version was of such low quality we found it impossible to covert to electronic text for reproduction on this blog. Fortunately, Professor Tribe e-mailed the original Word file to various law professors, and one of our law-professor correspondents was kind enough to forward it to us.

As is our habit, in the coming days we will do our best to add hyperlinks at various places to help orient readers as to what is being discussed. As with the authors of the other statements we have annotated, because Professor Tribe will have no involvement in selecting or approving these hyperlinks, they cannot be construed as any elaboration upon what he "meant," subjectively, in writing what he wrote. They merely reflect our perhaps idiosyncratic view of what links might be helpful, or at least interesting or even fun, to include.

Given the limitations of the blog format and for ease of reading, instead of printing the five footnotes in the long letter as endnotes after the text of the long letter, we have interspersed the material with the text itself, identifying the brackets the language which formerly appeared at the bottom of each page as footnotes.

Here, then, are the two letters. First is the two-page single-spaced letter to Justice Breyer. Second is the 13-page single-spaced "Open Letter" to interested readers. We have indicated the original page numbering of each letter using these marks, in bold: {_}.



(TWO-PAGE LETTER TO JUSTICE BREYER)

Laurence H. Tribe
Carl. M. Loeb University Professor
Harvard University
Hauser Hall 420
Cambridge, Massachusetts 02138
tribe@law.harvard.edu
Tel: 617-495-4621
Fax: 617-495-3383

April 29, 2005

The Honorable Stephen G. Breyer
Associate Justice
Supreme Court of the United States
U.S. Supreme Court Building
One First Stree, NE
Washington, D.C. 20543

Dear Steve:

1. I appreciate your asking about the projected second volume of the third edition of American Constitutional Law. After considerable thought, I recently concluded (and informed my book’s publisher, The Foundation Press) that I should suspend work on the balance of that volume and indeed on any new edition of my treatise — not because my views about constitutional issues have fundamentally changed (they haven't), or because today's constitutional controversies lack enduring interest (they don't), or because I'm out of sympathy with some of where the Supreme Court appears to be headed (that's been true since I first began this project in the mid-1970s).

2. Rather, I’ve suspended work on a revision because, in area after area, we find ourselves at a fork in the road — a point at which it’s fair to say things could go in any of several directions — and because conflict over basic constitutional premises is today at a fever pitch. Ascertaining the text’s meaning; the proper role and likely impact of treaty, international and foreign law; the relationships among constitutional law, constitutional culture, and constitutional politics; what to make of things about which the Constitution is silent — all these, and more, are passionately contested, with little common ground from which to build agreement.

3. Treatises that don't try to do much beyond describing the relevant judicial decisions can cope with times like these. And treatises that are actually appellate briefs in disguise, pushing the author's preferred answers to constitutional questions, are as appropriate when so much is up in the air as at any other time. But if one is aiming at a work that organizes the corpus of decisional law — that identifies, and reflects critically on, the major themes and directions of movement — then this isn’t the moment.

{2}

4. Happily, many of the same factors that make ours a peculiarly bad time to be going out on a limb to propound a Grand Unified Theory — or anything close — contribute to a ferment and excitement that make this a particularly good time, challenging and even thrilling, to be writing about, teaching, briefing and arguing constitutional law — all of which I remain enthusiastic about doing.

5. So the work of generating a new edition might more properly fall to my granddaughter than to me. Her taste at the moment runs more to music and dance than to law, however — she's just a year old — so, unless she picks up the legal cudgels fairly soon, she just might find her grandfather re-entering the fray to produce a new edition.

6. If and when that happens, you'll be among the first to know. In the meantime, thanks again for asking. I've set out in greater detail the thinking behind my answer in an "open letter" that the publisher of Green Bag has expressed an interest in including in that journal's Spring 2005 issue.

Sincerely,

/s/ Larry

Laurence H. Tribe



(THIRTEEN-PAGE "OPEN LETTER")

Laurence H. Tribe
Carl. M. Loeb University Professor
Harvard University
Hauser Hall 420
Cambridge, Massachusetts 02138
tribe@law.harvard.edu
Tel: 617-495-4621
Fax: 617-495-3383

April 29, 2005

An Open Letter to Interested Readers of American Constitutional Law:

7. After considerable thought, I have concluded that I should not publish, and therefore will not complete, the projected second volume of the third edition of my treatise, American Constitutional Law, which was to contain the bulk of my analysis of individual rights and liberties (along with much of chapters 7 and 8 of the first volume, published in 2000). There are several reasons for my decision — some fairly pragmatic, others going to the very idea of the enterprise. I sketched these reasons in a letter to Justice Breyer recently, and I would like to use this as an apt occasion for setting out those reasons in greater detail in order to explain my (perhaps surprising) decision to the many kind and generous people who have eagerly inquired about the volume in recent years (including representatives of courts of quite a few countries, who are increasingly interested in our Constitution and in our Supreme Court’s construction of it).

8. Let me first put to the side some factors that were not relevant to my decision. It’s not my health, which is fine. And it’s not that I’ve finally discovered the secret of how to stop being a workaholic or that I’ve lost interest in the questions the unpublished chapters would have discussed or the drive to pursue them doggedly. To the contrary — as I will explain, those questions continue to engage and challenge me as much as ever. Nor is it that the basic structure of the treatise has been rendered obsolete: Indeed, if putting volume 2 in the bookstores were simply a matter of publishing the basic text of the second edition, redlined with deletions and insertions keyed to changes in the Court’s decisional law in the “individual rights” chapters (9 through 18) that comprise that volume, I would have published it several times over quite some time ago, using drafts I’ve prepared on an ongoing basis in connection with my teaching at the law school and my other lectures and writings. Actually, very little of what is probably the most useful (and, I hope, the most lasting) material in the treatise — the connective tissue linking disparate points and topics and the exokeleton on which the whole is draped — needs much updating: If it’s wrong or beside the point now, it was most likely wrong or beside the point in 1978, and in 1988, too.

9. It is instead that I have come to the sobering realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history — to its conflicts, innovations, and complexities. There is a time to write a constitutional law treatise (or, in my case, to complete a treatise many of whose chapters I have begun many times over and some of whose chapters I have “completed” more than once) — but this is {2} not such a time. The reason is that we find ourselves at a juncture where profound fault lines have become evident at the very foundations of the enterprise, going to issues as fundamental as whose truths are to count and, sadly, whose truths must be denied. And the reality is that I do not have, nor do I believe I have seen, a vision capacious and convincing enough to propound as an organizing principle for the next phase in the law of our Constitution.

10. This is not to say, of course, that constitutional analysis in general, or the tracing of constitutional doctrine through decisional law in particular, has been rendered futile. Far from it. Even today, those interested in how and where the picture may have changed since 1988 on any given topic in constitutional law can consult a multitude of sources, including some available online and updated in real time, while those interested in the kinds of foundational and theoretical analyses that I included in a much-expanded chapter 1 of the third edition of American Constitutional Law are most likely to look in any of the many interesting new articles and books that come out annually touching these matters before thinking of consulting a treatise. And some entirely serviceable hornbook-like treatments of the corpus of constitutional law, ranging in length from compact single-volume versions to more elaborate multi-volume series complete with pocket parts, now exist — unlike the situation in 1978, when there was a surprising paucity of serious writing about constitutional doctrine. But such a compendium of usable information was never my idea of what I wanted to create, or of what I thought was most needed even when there was less such writing by far than there is these days. The situation may well be different for antitrust or corporate law or any other field less tightly linked with the rapidly changing political universe, but for constitutional law the treatise form — at least if one means by that the sort of book I published in 1978 and in a couple of succeeding versions—fits some eras better than others.

11. Such a treatise — however much it might attempt to innovate or to incorporate some particular conception of right and wrong results — proceeds by bringing together a large body of judicial work and by calling attention to the organizing themes that thereby become apparent. There may not be just one or two themes — there may be “seven models,” for example. But it is the attempt at a synthesis of some enduring value that is the point. And I have come to have profound doubts whether any new synthesis having such enduring value is possible at present.

* * * *

12. My decision is not based on any eternal verity about the treatise form as applied to constitutional law. The point is a contextual one, a function of the time and the problems posed for resolution — and of the particular goal that I set for myself in the writing of such a treatise. Obviously, I did not have such doubts in years past. I have no regrets about the treatise I originally published, or about the second edition, or even about the first volume of the third. A treatise may be helpful — worth the effort — in periods during which a considerable body of judicial work has accumulated that needs to be pictured as a whole in order to be properly appreciated, extended, or reconsidered. The mid-1970s, when I started the research and writing for the first edition of American Constitutional Law, seemed to me such a period. The Warren Court had done so much {3} constitutional work, sometimes breaking away from its predecessors and sometimes dramatically extending earlier ideas. And the work of that Court had, to the surprise of many, been carried forward without significant discontinuities in — and, in some important areas such as sex discrimination and reproductive freedom, with important extensions by — the work of the Burger Court, in no small part, I’m sure, because of the unifying vision of the magnetic Justice Brennan. If that corpus of decisional law and doctrine were to be meaningfully carried forward — or coherently contained or cut back — it needed to be seen entire, and seen set within the larger body of cases and their thinking accumulating in the efforts of the Supreme Court across its considerable history.

13. Of course, the principal approaches of the Warren and Burger eras had their detractors, particularly as that Court reached the most controversial result of the past half-century, Roe v. Wade. But responding to those critics was part of what a treatise for that time needed to attempt. And, significantly, even the critics were in an important sense reading from the same page as the majority — although from the present vantage point, that may be hard to remember clearly. I wrote the bulk of my first edition in the several years immediately following the decision in Roe v. Wade, before its galvanizing effect on the religious right had been felt in national politics, and before the depth of disagreement over its premises had been plumbed. John Hart Ely had famously charged as early as 1973 that the Court’s abortion ruling wasn’t “constitutional law and made no effort to be,” or words more or less to that effect, but that brush-off seemed to me at the time (and seems to me still) to read too narrowly the word “liberty” and to read out of our tradition the substantive inflection that comes from italicizing the word “law” in the phrase “due process of law,” as well as to ignore the equality and bodily-integrity dimensions of the Roe decision (dimensions that did not come to the fore until considerably later). Indeed, although Justice Rehnquist had differed with the majority over the circumstances in which the Constitution prevented government from compelling a woman to remain pregnant (only in cases where her life was in danger from continued pregnancy, he suggested), he did not disagree with the seven-Justice majority that the Constitution imposes some substantive constraints on government in such matters. Thus the deeper fissures that decisions like Roe would later open had not yet become so prominent as to demand central treatment — or, more to the point, so prominent as to preclude unified treatment.

14. When such fissures loom large enough, what once looked like a synthesis becomes at best a new thesis. Imagine, for instance, endeavoring to write a treatise on constitutional law during the period immediately following Franklin D. Roosevelt’s election to the presidency in 1932, right at the cusp of what seemed quite certain to be momentous change. At such potential turning points, and until more is known about the antithesis and about the dynamics of the battle ahead, attempting to proclaim a new synthesis would bespeak utter hubris were it not so manifestly quixotic.

* * * *

15. This is not to suggest that the changes ahead will be as momentous as those of 1937. I trust that the current President will not have the opportunity to make more than at most a handful of appointments to the Court. I trust as well that, whatever the fate of {4} those appointments in the Senate, nothing nearly so dramatic waits in the wings as the change that the composition of the Court underwent in the half-dozen years following FDR’s first election to the presidency. Yet, just as in 1932, we find ourselves now at an especially complicated juncture in our constitutional story.

16. The imminent prospect of major changes in the Court’s membership following the current record-long period without departures from the group of nine is only one of the factors making this a problematic time for another edition of my treatise. Indeed, other things being equal, the anticipated infusion of fresh minds might be thought to present an ideal opportunity for an overarching restatement of doctrine. But other things are not equal. For the limits of the treatise form have become apparent in the distinctive features of the Supreme Court’s work over the past decade or so.

17. A period of reassessment in several doctrinal contexts, it appears, is largely over — but plainly we see no new constitutional law emergent and ready for synthesis. There is talk of the return of a “constitution in exile,” but no real reason to imagine that it could plausibly be adopted either whole or piecemeal in any coherent way. To be sure, there is a lot of new thinking apparent in the individual rights work of the Supreme Court — and not only there: questions of state prerogatives and immunities and the prerequisites for congressional action have triggered much new matter as well. But in all of this the Justices write as though self-consciously in the midst of unresolved, ongoing struggle, sometimes choosing to present their views in exaggerated, polemical forms, and sometimes too conspicuously trying to restrict the reach of their ideas as though in this way to give them space to survive. It is not a criticism of Chief Justice Rehnquist (who has worked so hard to recreate the administrative golden age of Chief Justice Hughes) to note the similarities linking the Supreme Court now with the Court headed by Chief Justices Stone and Vinson. There were genuinely great Justices sitting in that era, we all know — Black, Frankfurter, Jackson, Murphy, Stone himself. Many of the ideas that the Warren Court put to work originated in the great debates of the Stone period. But no one, I think, would have concluded in (say) 1946 or 1948 or 1950 that the time was ripe for anything like a treatise, an attempt at overall synthesis. Any such comprehensive effort written then would likely have obscured the fundamental fact that conflict and irresolution organized the elaboration of constitutional law.

18. Nor is it only a question of still-live conflict within the Court. The new century, it increasingly seems, marks what look like the beginnings of a period of profound transformation. There is an emerging realization that the very working materials of American constitutional law may be in the process of changing.

19. There is, for example, a sharp continuing debate addressing how the work of Congress fits within the corpus of constitutional law. Can congressional efforts within some range add to or otherwise revise conceptions of constitutional protections of individual rights? This is a hard problem at many levels (one that has, of course, been present in some form since the enactment of the great promises of the enforcement provisions of the Thirteenth, Fourteenth and Fifteenth Amendments). The pertinent point is that, if congressional constitutional thought deserves to be taken more seriously, then it may be necessary that statutes, like judicial opinions, be collected and subjected to {5} scrutiny from the critical perspectives of the constitutional ideas they embody. But of course, statutes are not as easy to synthesize as Supreme Court opinions; moreover, one would have to contend with and depict serious methodological issues — real conflicts — raised in working with statutes — something made especially clear in the contrasting thinking articulated by Justices Breyer and Scalia.

20. Also of great significance is the way in which constitutional protections of individual human rights are acquiring an international or transnational dimension. As a result, we are beginning to find ourselves in another sharp methodological debate — not only about the acknowledged influence of foreign law on the Court’s own understanding of our Constitution (the strong and widespread first reactions to the Court’s ruling about the execution of juveniles this Term being a case in point), but also about whether and when treaties and other forms of international law can themselves impose quasi-constitutional norms and limitations on government actors here in the United States (questions that have for the most part lain dormant since Missouri v. Holland but that are now beginning to take center stage again in fascinating cases such as Sosa and Medellin).

21. Justice Breyer's recent Tanner Lectures at Harvard, evoking Benjamin Constant’s “ancient liberty” not as a matter of intellectual history but as an element of current working thought, illustrate one new movement — the increasing recognition that American constitutional law draws invigoration from (much as it also reinvigorates) currents in thinking not only in nineteenth century Europe, but in Renaissance and Reformation Europe, in the seventeenth and eighteenth century transformations of political theory, and even in the constitutional innovations of Rome and Athens. Nor is it only Europe, we know: contemporary developments in Islamic constitutional thought, the windows already opening or soon to be opened to us by the work of the supreme courts of Israel, India and South Africa, and our imminent appreciation of Chinese counterparts — all of this may well work a great change in the starting points and sensitivities of American constitutional scholars.

22. Even if the work of international or transnational entities, or indeed the work of the national courts of other countries, becomes part of American constitutional law only as material with which judges and academics are familiar (and not material to which they regularly refer in constitutional argument narrowly defined), one must still address the criteria for deciding what work elsewhere in the world should be considered at all and for what purposes. It is too early to say whether, a decade or so from now, this will seem so well settled as to be old hat or whether what I might regard as modest attempts to learn how others do things and how they manage to avoid certain pitfalls in pursuing goals akin to ours will long since have generated a backlash so large as to set back the effort for a generation.

23. The recent interest in comparative law is but one spark in an ongoing explosion of inter-disciplinary scholarly effort. Consider, for example, our increasing recognition of the lessons to be learned from behavioral economics (Cass Sunstein, in particular, has taught us much about this) and the sometimes startling results of computer modeling in game theory, the ideas of “small worlds” and informal networks, the new sociology that Judge Posner would have us read, cognitive theory (as in Jerry Kang’s startling recent {6} essay), political philosophy post-Rawls (Martha Nussbaum’s newer works provide rich examples) — all of this, along with now well-established perspectives and techniques (critical theories of both the right and left, perhaps especially those emphasizing the sociology and semiotics of race, gender, and sexual orientation, in the important work of such scholars as Catharine MacKinnon, Janet Halley, Kenji Yoshino, and Reva Siegel and some versions of law and economics), promises to enrich both the form and the substance of academic writing about constitutional law.

24. Finally, and perhaps most importantly, the state of our own “constitutional culture” calls for systematic attention. I refer here not only to the ever-accumulating, rich corpus of academic commentary, with distinguished participants too numerous to name. I refer as well to popular conceptions of constitutional law, conceptions that drive everyday politics in many ways — within the arguments of families in crisis, within the mundane world of bureaucratic disputes, in the lives of communities, as swords and shields within the recurrent politics of outrage and protest. Popular conceptions of constitutional law therefore shape government — even if the careful work of courts (for example) does so as well. (Robert Post’s studies of constitutional domains and the facets of constitutional culture, and Fred Schauer’s work on constitutional salience, seem to me especially likely to generate important new insights on the subject.)

25. Consider, for example, the obvious clashes of world view in the tragic Schiavo case that has recently dominated our headlines and broadcasts: We’ve seen an extraordinary politics of feeling, of sympathy and hope and faith and frustration and anger — expressed not only in the declarations and demonstrations of Terri Schiavo’s parents and their many supporters, but also through remarkable congressional theater: the dramatic rush to legislation, the all-night session, the President’s sudden return to the White House to sign the bill just passed, and once again the encompassing rhetoric of searing emotion, at times nearly overwhelming both the practical and tactical language of legislative deliberation and the deeply settled rule-of-law, separation-of-powers, and federalism principles that had to be pushed aside in order to set the stage for what, had the federal courts accepted the invitation, would have been viewed by some (including me) as a tragic (and unconstitutional) show trial, but by others (including some prominent liberal Democrats) as a last chance to have escaped the tragic outcome that was decreed by doing business as usual.

26. No doubt some of those behind the legislative maneuver that sought to federalize the case for “any parent of Theresa Marie Schiavo,” as I believe the statute put it, were engaged in shamelessly opportunistic appeasement of their “base.” It’s easy enough — and in many respects entirely appropriate — to chide the supporters of states’ rights for how prepared they were so casually to undo the results of years of state court adjudication when the result felt to them so wrong; easy enough — and in many respects entirely proper — to scold the apostles of judicial restraint for their eagerness to authorize and even mandate exactly the sort of federal “judicial activism” that they ordinarily denounce, even in cases involving apparent risks of executing innocent individuals; easy enough — and in some respects deserved — to toss back at them their solemn invocations of the “sanctity of marriage” in other settings when they are so quick to dismiss the protestations of love and duty on the part of a husband and guardian.

{7}

27. But even still, many of those who supported extraordinary federal intervention were deeply sincere. They will not soon forget how the legal system, and its judges in particular, failed to respond in any palpable way to their understanding of the world. To this segment of the Nation, the prevailing culture of deliberative process no doubt appeared as a callous and deeply anti-religious intellectualism, evident not only in the cool analyses of the neurologists who examined Ms. Schiavo and who testified so matter of factly concerning the processes through which much of her cerebral cortex had been destroyed, but even more evident in the just as cool work of both the Florida and federal judiciaries, repeatedly and accurately bringing to bear vocabularies within which all of the emotion that Congress and Terri Schiavo’s parents and the clergy had called up quite simply disappeared — or worse, was deemed immaterial. Those for whom Schiavo’s plight, or the plight of others caught up in similarly charged clashes of values, yield life — marking events will carry those events with them as part of the lens through which they understand constitutional appeals and categories, and part of the repertoire of rhetorical moves through which their feelings will be made known in future controversies.

28. To learn important lessons from something like the Schiavo experience, one needs to make an effort to understand not only the usual formulas of federalism, separation of powers, and the rule of law as indirect guarantors of rights through the decentralization and regularization of power — formulas that Judge Birch of the Eleventh Circuit, an Establishment Republican appointed by the first President Bush, went out of his way to criticize Congress and the second President Bush for flagrantly violating with the special Schiavo law they rushed to enact. One needs, too, an effort to internalize, and not merely to describe from the outside and at a distance, the perspective of those who thought it barbaric to withhold the simple sustenance that Schiavo’s biological family desperately wanted to extend — a perspective that was inseparable from the idea of parental love and concern and one that, for most of those who held it, was fundamentally the product of religious faith that grounded a profound commitment to equal hope for all persons, however extreme their circumstances, and of a profound commitment as well to the duty to act in service to faith, even when such action required a departure from customary modes of lawmaking.

29. The terms within which we might somehow bring together these startlingly different and incommensurate points of view cry out for new modes of thinking and writing within constitutional law — if constitutional law is to remain a fully pertinent resource in considering cases of this sort. [I am reminded here of Robert Cover’s insights into the “jurispathic” character of law in Nomos and Narrative. To the degree one thinks Cover’s the best way of approaching some of our current dilemmas, the limits of the unitary treatise form become all the clearer.]

30. Judged from this perspective, the very strengths of the treatise as a form are also its limitations. There are times, to borrow an image from our electoral politics, when a Treatise in Red would capture the constitutional zeitgeist, and times when a Treatise in Blue seems called for. At a time when our most creative and inspiring politicians are telling us, in hope, that we are not the Red States and the Blue States but the United States of America, the best that a treatise-writer might do is produce a Treatise in Purple. {8} And that sort of work would paper over, before we fully grasp, the profound divisions that define our current circumstance.

* * * *

31. Some may think that I am overstating these fissures, these profound shifts and tensions in perspective and commitment. Indeed, there are times when I wonder myself whether the project I embarked upon a quarter century ago might continue implacably, as if intervening developments have been but natural and unexceptional points on a continuum. As I write this letter, I’m looking out at a mild sunrise over the Atlantic Ocean, across a lovely beach where the waves aren’t yet strong enough even to form breakers. It’s easy from where I sit to think of the great, enveloping sea of constitutional law in terms of ocean waves and currents, some visible on the surface, others perceptible — at first — only near the ocean floor. And indeed, much of what has been going on at the surface of the law in the period between my second edition and the present strikes me as a continuation, most of it welcome from my perspective, in trends evident for quite a long time now.

32. For instance, both the Court and the academy now pay much closer and more precise attention to constitutional text and especially to constitutional structure, something I’ve emphasized in my writing for well over a decade. To be sure, I’ve taken issue with how selectively such attention is at times focused on the reduction of congressional power and the enhancement of idealized images of “state sovereignty” that seem to me to disserve rather than to serve the underlying purposes of federalism (a point Justices Stevens and Breyer have of course made forcefully, joined at times by Justices Souter and Ginsburg). And even more importantly, I have expressed frustration over the failure of the “states’ rights” wing of the Court to recognize the wisdom and necessity of using parallel structural and textual methods of constitutional construction to “connect the dots” in individual rights jurisprudence as well. Yet, despite that selectivity, somehow the Court has managed to render, if at times by disquietingly close votes, decisions reaffirming the core principles that I see as part of a complex that draws its design simultaneously from liberty (both of the ancients and of the moderns, in Justice Breyer’s terms) and from equality. In that group of decisions, focusing just on the past decade, I’d certainly number Romer v. Evans, Saenz v. Roe, Lawrence v. Texas, and even the cautious position that emerges once one pays attention to who joined whom and with what footnote reservations, in the physician-assisted-suicide cases of Washington v. Glucksberg and Vacco v. Quill.

[33. I suppose one could add Stenberg v. Carhart, the so-called “partial birth abortion” case, but I hesitate to include it (or other outgrowths of Planned Parenthood of Pennsylvania v. Casey) in this list of hopeful signs — partly because of the anger (justified, in my view) expressed in dissent from Hill v. Colorado by one of the Justices (Kennedy) who had joined the compromise position in Casey and who expressed a sense of betrayal in Hill at an opinion that treated a ban on uninvited approaches to persons near a health facility in order to engage in “oral protest” and “counseling” as content-neutral and that accordingly upheld, without the discipline of establishing that the measure could survive strict scrutiny (which I think it may well have survived, cf. Burson v. Freeman), a severe restriction on one of the few remaining ways that those who identify with what’s increasingly calling itself the “culture of life” could express their views to those who were about to commit what they see as a grave wrong.

{9}

[34. Even if it doesn’t belong on this list, however, Stenberg is symptomatic of the increasing prominence in constitutional controversy of competing symbols and images, a phenomenon with which I began grappling when I first analyzed the difference between the expressive, intrinsic role of legal rules and their purely instrumental, utilitarian role, in a 1971 essay on “trial by mathematics” and a 1972 essay on “policy analysis: science or ideology?” — a discussion I continued in several articles and a book in the mid-1970’s dealing with the limits of instrumental rationality and of the “policy-analytic,” technocratic perspective on public choice. That perspective is limited not only in its inattention to the ways in which technologies and legal arrangements may express and not simply implement existing values, but also in its inability to address the prospect that the technological and legal choices we make may alter those values and transform the very metric by which we assess the “costs” or “benefits” of what we have done. Although I was writing as early as 1969 about how psychopharmacology, human cloning, redesign of the human genetic material, and changes in the interface between people and the computer networks that extend their capacities and link them to one another, could well pose questions going to the very heart of what it means to be individual human beings “endowed by their Creator,” in the language of our Declaration of Independence, with “certain inalienable rights,” I put forward only the sketchiest of ideas for how legal institutions and constitutional principles could possibly cope with such prospects.]

[35. Part of my sense that this is not a propitious time for a new treatise grows directly out of the difficulty of framing constitutional methodologies that take satisfactory account of technological changes this profound now that it is plain that they are indeed upon us and are not merely subjects for speculative scholarship. For reasons similar to those voiced in 1996 by four Justices as grounds for caution in selecting analogies from traditional free speech discourse when dealing with government regulation of cable systems (Denver Area Educational Telecommunications Consortium v. FCC (Justice Breyer’s plurality opinion, joined by Justices Stevens, O’Connor, and Souter, and Justice Souter’s separate concurring opinion)), I’ve lost confidence in the course I recommended in my 1991 essay, The Constitution in Cyberspace, where I urged that preserving core constitutional norms in the face of radical technological change calls for the translation of those norms into principles sufficiently general and abstract to render them immune to distortion as technology spins out new options. Some of Larry Lessig’s later work on “fidelity” in constitutional translation is to similar effect. Suffice it to say at this point: Easier said than done.]

36. But it is sobering to recall how thin the majorities have been in some of these cases, even when they have not on the surface been 5-4. I’m afraid that these sharp splits on the Court reflect a much more fundamental and seemingly irreconcilable division within legal and popular culture that is not amenable to the treatment that a treatise might hope to give such cases. This division becomes most manifest when one attempts to elucidate some of the most important puzzles currently bedeviling constitutional law: whether there is a right to refuse medical treatment even for the purpose of hastening one’s own death; how to honor the right to dictate, while sentient, what is to be done with one’s body after medical science says nobody is “there” any longer but when loved ones insist there is a “there” there after all; or how to discern the line after which, if and when “viability” comes to seem unacceptably arbitrary and question-begging, the political community may be permitted to prevent or discourage all but some small subset of abortions. On these and many other questions — some of which we can’t possibly imagine at this moment — I think the deep and thus far intractable divisions between wholly different ways of assessing truth and experiencing reality, divisions both cultural and religious in character, some epistemic and others strictly normative, have become too plain — and too pronounced—to paper over by routine appeals to the standard operating procedures of the legislative-judicial division of authority, the routine premises of the federal-state allocation of power, and the usual methods of extracting meaning from notoriously ambiguous texts.

{10}

* * * *

37. The way in which the deeper questions presented themselves in the Schiavo case was unusually dramatic but is hardly unique. And in principle, we should be able to fashion models of legal inquiry that take into account the conflicts of symbol and feeling as well as the more familiar elements of constitutional discourse that arise in cases such as Schiavo’s — but we haven’t learned how to do it well yet.

38. Watching that episode unfold, I couldn’t help recalling a case I was briefing in the Supreme Court of Japan just as the first edition of my treatise was going to press—a case whose outcome turned on how to characterize the choice of criteria for establishing the authenticity of the purported signature of the Nichiren Daishonen, the Buddha of the Nichiren Shoshu faith, on a 13th century wooden mandala. One side urged looking to the science of handwriting analysis to compare the marks on the mandala with signatures of undoubted authenticity on dozens of other 13th century scrolls; the other side, to the spiritual peace that one either did or didn’t experience upon chanting “Nam yo ho rengye kyo” in the presence of the mandala when properly enshrined in a suitable temple at the foot of Mt. Fuji. The question I had to brief: Was the choice of criteria itself inherently religious, thus rendering nonjusticiable a suit for refund of sums contributed by the faithful to the temple’s construction?

39. For at least some such puzzles, I see in our own Constitution’s language and architecture a strongly suggested solution that prioritizes the secular over the religious in the public realm: One sees it in Article VI, which commands all officers of every branch of the national and state governments to swear or affirm their fealty to the Constitution itself and to the republic it constitutes while simultaneously forbidding the administration of any “religious test” for any federal office or public trust. Even there, however, one faces the question of what beyond the canonical profession of fidelity to the Constitution remains “secular” and what becomes “religious”: If including “under God” makes the pledge of allegiance improperly religious, how about including “the flag” for which “one nation indivisible” ostensibly stands, “with liberty and justice for all”? And just how can we tell? Or, to take another conundrum from Establishment Clause cases: How should one decide where to stand on the division within the Court between the emphasis on “strict separation” and the emphasis on “neutrality,” assuming one could satisfactorily define either? Questions like these have for me the feel of something much deeper, much more potentially convulsive, than the standard differences in doctrine and perspective within the Court.

40. There was a time when I thought I could elide such issues by taking an eclectic, pluralistic approach to constitutional meaning. There were no provably right answers, however one might understand Ronald Dworkin’s Herculean attempts, but there were clearly wrong ones, and among the plurality of right answers each branch could take its pick — providing that, in the end, with a range of flexibility sufficient to permit challenge to its views, the judiciary would carry the day. In my first two editions and in the first volume of the third, I tried to square the circle of determinate indeterminacy that way, drawing sustenance from the suggestion in Katzenbach v. Morgan that, subject to a floor the Court would set, Congress could use its authority under section five of the Fourteenth {11} Amendment to implement broader visions of constitutional interests in liberty and equality than the Court was prepared to impose on the nation judicially. And, in my own Tanner Lectures at Oxford several years ago, I was harshly critical of the increasingly frequent suggestions by the Court that it essentially owns the meaning of the Constitution.

41. Much as I find such proclamations of judicial hegemony distressing, I’m certainly not ready to accede to the far more radical ideas at the other extreme — that we might as well fall back on congressional supremacy, or on “popular constitutionalism” outside the political departments, or even on pure majoritarianism unfettered by constitutional constraints, in matters going to the validity of national (and perhaps also state) statutes. I would be surprised if the recent revival of interest in these long-discarded, one-dimensional forms were to be with us for very long. “The people, yes!” makes a stirring poem, but governance under law requires a measure of prose as well. Nevertheless, I think that I’ve been more dismissive than I should have been — especially in an era in which the divisions over the most basic premises run as deep as they seem to be running today — of efforts, however incomplete, to display the history of our constitutionalism with considerably more of an inflection on popular opinion, and on the many ways in which “the people” may voice and make felt their understanding of the Constitution’s requirements, than my own largely judicial focus has made almost instinctive.

[42. Here I must nod in the directions of Bruce Ackerman and Akhil Amar, as well as Larry Kramer. In fact, having now read a most impressive (even if still quite critical) review by Larry Alexander and Lawrence Solum of Kramer’s latest work, I think I owe him an apology for my overly reductionist dismissal, in a recent review, of his imaginative historical reconstruction. I still worry, however, that Kramer’s battle cry in favor of some unspecified version of “the people’s” authority to overturn the Court’s constitutional views will register far higher on the Richter scale of politics and culture than any of the nuances that precede it, and so I continue to fear, despite Kramer’s admirable motives, that unintended mischief may flow from what he may be thought by some to be advocating.]

43. In the end, I am left up in the air on the role that something properly regarded as “popular constitutionalism” should play.

44. Nor do I have what I think are compelling answers even to the narrower but still plainly urgent questions of judicial method, and the choices among competing modes of interpretation — choices too sharply lit now for a treatise-writer simply to punt, or to retreat to the usual dreary mix of “a bit of this and a bit of that.” I’ve often marveled at how some Justices — including a number I’ve admired over the years, like my old boss, Potter Stewart, and the successor to his seat, Sandra Day O’Connor — maintain an admirably judicious sense of what they are doing in deciding particular cases while consciously avoiding the adoption of an articulated set of general navigational principles, and how such Justices indeed serve with greater distinction and genuine openness to argument precisely because they resist formulating comprehensive frames of reference. It’s much easier and feels more natural for me to identify with such Justices as Steve Breyer and Nino Scalia, who — each obviously in his own distinctive way — are self-conscious in reflecting on, and publicly articulating, how they see their task in constitutional interpretation.

45. Like Breyer and unlike Scalia, however, I see no escape from adopting some perspective (not necessarily “consequentialist” in the usual sense) external to the {12} Constitution itself from which to decide questions not indisputably resolved one way or the other by the text and structure, not least among them the question of how rigidly to tie that text to a supposed “original meaning” fixed at the time of its promulgation.

46. But if not dictated by the text, where does one's set of criteria for better or worse readings, or ways of reading, constitutional text come from? And who ratified the meta-constitution that such external criteria would comprise? Those are of course eternal questions that I trust nobody expects any Justice, much less a mere treatise-writer, to answer in some definitive way. But the questions are too near the surface now, and the consequences of answering them differently are too large, for them to be submerged or bracketed in a useful constitutional overview that purports to be more than a hornbook-like compendium of judicial results reached and reasons given. [If Justice Scalia believes that his “original meaning” approach is literally dictated by binding text, as opposed to merely being commended by such desiderata as reducing the role played by a judge’s personal preferences—a consequence that I think is frustrated more than it is facilitated by the opacity of his method—then I think he’s making a basic linguistic and logical error of the kind intrinsic to any self-referential set of instructions (see Douglas Hofstadter’s wonderful study of the issue in logic, mathematics, literature and art, in his book, “Gödel, Escher, Bach”) — although Breyer trying to persuade Scalia of that proposition might be akin to Aristotle trying to convince Plato to abandon the forms.]

47. The difference between my situation and that of the Justices is that, with the public authority that they have the enormous responsibility and privilege to wield, they must either answer those questions as best they can or beg them, admit it or not. Lacking the privilege and responsibility of any such authority, I have the compensating luxury of deciding that those large questions are simply “above my pay grade,” which is one way of viewing my decision to write and teach in contexts where it is acceptable to raise such questions without offering answers, and my decision to let the treatise I have written rest without publishing any further volumes or versions. What I don’t have is the luxury of purporting to finish a genuinely new third edition while avoiding the fundamental questions that are now so pressingly posed.

48. For all these reasons, I’ve reluctantly concluded that no treatise, in my sense of that term, can be true to this moment. This doesn’t mean that I see no work I would want to do. Litigation (sometimes) is precisely the right way to push constitutional thinking in new ways in response to problems already real. Public opinion matters — and thus I mean to continue writing and speaking about constitutional questions in venues that reach at least some parts of the public at large. Congressional testimony plainly remains important (whatever the role of Congress in defining individual rights might be). And distinctly academic writing — exploring particular Supreme Court decisions, investigating larger constitutional themes and problems, or experimenting with new forms of presentation and synthesis — remains something to which I am irresistibly drawn. The Constitution is, after all, still a relatively recent innovation, and there is no end in sight to our solemn obligation to honor its decree to “secure the Blessings of Liberty to ourselves and our Posterity.”

{13}

49. But no new treatise now, I think: that is more likely to be work for my granddaughter. [Cf. Charles L. Black, Jr., “And Our Posterity,” 102 Yale L.J. 1527 (1993).]

/s/ Laurence Tribe

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