Harvard Plagiarism Archive


"[T]he problem of writers . . . passing off the work of others as their own . . . [is] a phenomenon of some significance."
PROFESSOR LAURENCE TRIBE, e-mail to Dean Lawrence Velvel, 9/13/2004

"'I . . . delegated too much responsibility to others . . .,' [Prof. Charles Ogletree] said. 'I was negligent
in not overseeing more carefully the final product that carries my name.' * * * Ogletree told The Crimson that
he had not read the passage of Balkin’s book that appears in his own work. An assistant inserted the material
into a manuscript . . . . But Ogletree said he was closely involved in most of the drafting of the book . . . ."

STEVEN MARKS, "Ogletree Faces Discipline for Copying Text," The Harvard Crimson, 9/13/2004

"'Ronald Klain . . . then only a first-year student at Harvard law . . . spent most of his time with
Tribe working on Tribe's [1985] book God Save This Honorable Court,'" the Legal Times added in 1993.
* * * 'Many of Klain's friends and former colleagues say that he wrote large sections of the book . . . .'"

JOSEPH BOTTUM, "The Big Mahatma," The Weekly Standard, 10/4/2004

"[A]fter several plagiarism scandals broke over distinguished faculty members at Harvard's law school, including
Laurence Tribe,a group of students there set up a blog, Harvard Plagiarism Archive, to follow the University's
handling of the problem. They believe that the University, President Summers, and Dean Elena Kagan
essentially white-washed the scandal and are demanding further action.

PROF. RALPH LUKER, History News Network's "Cliopatria" blog,4/26/2005

“The Tribe and Ogletree matters have catalyzed bitter complaints from Harvard students that the university
employs a double standard. . . . The students have every right to be incensed over this gross double standard.
They in fact ought to raise hell peacefully about it: a constant barrage of letters, emails, statements . . . .”

DEAN LAWRENCE VELVEL, "Velvel on National Affairs" blog, 4/28/2005

"If you want to keep track of this story, I recommend the new Harvard Plagiarism Archive. . . . [I]t's pretty thorough."
TIMOTHY NOAH, Slate's "Chatterbox" blog,9/28/2004

"[Y]ou have done a wonderful service to all by operating the AuthorSkeptics website . . . a fine public service."
DEAN LAWRENCE VELVEL, author of "Velvel on National Affairs," e-mail to AuthorSkeptics, 4/19/2005



Thursday, May 05, 2005

E-mail from Mark Halpern on Judge Posner's views about plagiarism


We received an e-mail from Mark Halpern commenting on Judge Posner's views about plagiarism, about which we recently posted here.

Not, not that Mark Halpern, or Mark Helprin, or Marc Halperin. This Mark Halpern.

In a rather detailed essay, Mr. Halpern has previously criticized Judge Posner's views about plagiarism. He suggested we reprint his essay. We are doing that, although we disagree with some of Mr. Halpern's specific analysis (though obviously taking a dim view of plagiarism generally). In particular, we are unsure whether in his essay he accurately summarizes Judge Posner's overall analysis of plagiarism. We hope readers will comment on any points of interest.

As Mr. Halpern mentions, Judge Posner declined to respond to his essay, citing its "intemperate" character. We agree the essay was intemperate, though not outrageously so, except perhaps for the final paragraph in which Mr. Halpern reveals the secret of his effectiveness as an advocate. (We've probably done something similar ourselves, but if one really thinks one has totally nailed an issue and eviscerated one's opponent, one should try to let the analysis speak for itself and not go over the top and announce one's immortal victory, which may cause enough unease among readers that the credibility of the preceding analysis may suffer.)

At any rate, we think the essay contains enough useful nuggets it is worth reading for those who are closely following the issues discussed on this blog.

Here, then, is the e-mail from Mr. Halpern, and the copy of the essay as set forth in his e-mail (we were unable to locate a copy on the web):



From: [e-mail address omitted]
Sent: Tuesday, May 3, 2005
To: AuthorSkeptics@hotmail.com
Subject: Serious criticism of Judge Posner's position on plagiarism

Dear Skeptics,

In the essay reproduced below, first published in The Vocabula Review (http://www.vocabula.com) for June 2003, I offered what I believe is the only serious criticism of Posner's position on plagiarism, as presented in his Atlantic and Newsday essays.

Posner paid me the left-handed compliment of refusing to comment on my criticism, when offered the opportunity by the editor of TVR, saying that he would not respond to such an intemperate attack. If you know Posner, you know that nothing would stop him from replying to criticism if he had anything plausible to say.

I invite you to reprint my essay on your site, or to give your readers a link to it. I think it important to expose Posner's confused and permissive position on plagiarism; at the very least, your readers should be given the opportunity to see it criticized.

Yours sincerely,
Mark Halpern



THE VOCABULA REVIEW

June 2003, Vol. 5, No. 6

THE CRITICAL READER

“O, What a Noble Mind is here O’erthrown: Posner on Plagiarism”

"The Critical Reader" is devoted to analyzing recently published writings that are egregiously illogical, illiterate, or otherwise in need of skewering. The emphasis in these analyses will be on misuse of language, in particular tendentious diction or other corruptions of English. I will be particularly concerned to point out any political motivation behind such corruption, and the effect such corruption has even on those not sharing that motivation.

Just a few days ago I finished reading, or rather browsing in, Richard A. Posner's Public Intellectuals, and came away with respect for his analytical skills and his wide reading. But since then I've read two essays of his, one titled "On Plagiarism," the other "The Truth About Plagiarism" (apparently he was not as much concerned with the truth in the earlier piece), and have come away doubting not merely his analytical skills, but his sobriety, perhaps even his rationality. The first of these was published in The Atlantic Monthly for April 2002, the second in Newsday for May 30, 2003. The two pieces are the same in substance, and I will treat them as if they were one, except that direct quotations will be marked A (for Atlantic) or N (for Newsday) to help anyone who wants to check their accuracy.

"The Truth About Plagiarism" is subtitled, undoubtedly by a Newsday editor, "It's usually a minor offense and can have social value." I assumed before reading the piece that the subtitle was the usual dollop of hype that editors apply to every piece that passes across their desk in an effort to get readers hooked, but in this case the subtitle is a fair one. Posner is engaged in trivializing the offense of plagiarism, which he does by ignoring its accepted meaning, and he does suggest that some plagiarism is socially beneficial. But what he is mostly engaged in is muddying the waters of discourse.

Here are his arguments, in each case followed by my comments.

Posner (A): We must distinguish in the first place between a plagiarist and a copyright infringer. They are both copycats, but the latter is trying to appropriate revenues generated by property that belongs to someone else....

Comment: I know of no one who needs to have the difference between plagiarism and copyright infringement expounded, but if there is any such person, he will be really confused by this misinformation. Copyright infringement is the use of copyrighted material without the permission of the owner; it need not (and usually does not) involve the pretence that the material so misused is the work of the infringer, nor need it involve the misappropriation of revenue.

Posner (A): "Plagiarism," in the broadest sense of this ambiguous term, is simply unacknowledged copying.

Comment: There is nothing in the slightest ambiguous about plagiarism, nor does it have broader and narrower senses; it means unacknowledged copying.

Posner (A): [paraphrase by me, since the original passage is too long] Shakespeare, in the famous description of Cleopatra that he puts into the mouth of Enobarbus, is simply copying, almost verbatim, a passage from North's translation of Plutarch's life of Mark Antony. In The Waste Land, T. S. Eliot in turn "stole" that passage from Shakespeare, and in West Side Story, Leonard Bernstein copied the plot of Romeo and Juliet. [verbatim quotation resumes at this point.] If these are examples of plagiarism, then we want more plagiarism. They show that not all unacknowledged copying is "plagiarism" in the pejorative sense. Although there is no formal acknowledgement of copying in my examples, neither is there any likelihood of deception. And the copier has added value to the original -- this is not slavish copying.

Comment: Yes, if these were examples of plagiarism, we would want more of it. And if my grandmother had wheels, she would be a trolleycar. As Posner acknowledges in both papers, none of his examples consists of simple copying, and all of them except the Shakespearian adaptation of North's passage do not merely permit, but require, their audiences to understand the derivation of the material they adapt. (The Shakespearian example differs merely in that is does not require the audience to recognize it as an adaptation of earlier material.) So even in Posner's own "broadest sense," none are examples of plagiarism.

Posner's confusion here is hair-raising. In the antepenultimate sentence of the last-quoted passage, he says that these are examples of unacknowledged copying; in the next, he points out that no formal acknowledgments are necessary because everyone understands, and is expected to understand, the relation of these examples to their several originals. Then he implies that plagiarism has some nonpejorative sense -- what sense is that?

Posner (N): Plagiarism ... unlike real theft ... is not a crime. If a thief steals your car, you are out the market value of the car; but if a writer copies material from a book you wrote, you don't have to replace the book. ... The real victim of [the plagiarist's] fraud is not the person whose work he copies, but those of his competitors who scruple to enhance their own reputations by such means.

Comment: If a plagiarist publishes something of mine as his own, he may be stealing from me something far more valuable than a car. If I was the first to write "E = mc2," and you publish it as yours, you may have stolen the Nobel Prize from me. If I was the first to say "Hypocrisy is the tribute vice pays to virtue," and you publish it as yours, you may have stolen from me a reputation as a wit or philosopher. But even if the words you steal from me are far less valuable than these examples, still you are both depriving me of the credit earned by those words (they do earn credit, otherwise you would hardly trouble to steal them), and enhancing your own reputation at my expense. You are also misleading your readers, some of whom may go on to utter statements or perform acts of their own on the basis of the misunderstanding you have caused, and get into trouble because they've done so. But Posner thinks that if writer A, for example, plagiarizes from writer B, it is not B who is damaged (if anyone is), but writers C, D, and E, who have refrained from plagiarism.

"You don't have to replace the book," says Posner, using "book" as a grossly ham-handed metaphor for what has been stolen from the rightful owner. Indeed, not only need the victim not replace what has been taken from her, she will usually be unable to replace it. For one thing, it is usually only by chance, and in exceptional cases, that the victim of plagiarism learns of her victimization; and in those few cases where she does learn of it, there will usually be little she can do about it. The law -- especially in Judge Posner's court -- offers little remedy to a plaintiff in a plagiarism case, but generates lawyer's fees, and consumes time and energy, without end. One of Posner's reasons for trivializing the act of plagiarism seems to be that the law takes no great interest in it -- and to a lawyer, where there's no legal remedy, there's no crime; if there's no cure for a disease, the disease must be unimportant or imaginary.

The doctrine implied by Posner's point that since the victim of plagiarism has suffered no material loss -- she doesn't have to replace the book from which material was taken without her knowledge, let alone permission -- she has not really been harmed, is a curious one. I wonder if it applies to a woman who is raped while unconscious, and learns about it only by chance, long afterward? She too has suffered no material loss, and assuming that she was not impregnated by the rape, nor infected with a disease, nor physically injured in any way, what kind of case has she in Posner's court? (I'm aware that Posner's is an appellate court, and that he would hardly be presiding over a rape case; maybe his remoteness from substantive criminal trials is part of his problem in dealing with such matters.) If material loss is the criterion, what grounds has she for seeking a legal remedy?

This analogy, sound up to this point, fails in one important respect: rape is a recognized crime on which there is a large body of legislation and case law, so its victims are not likely to be fobbed off with "You don't have to replace your virginity," or remarks along those lines -- but it can still provide some illumination. Posner differentiates between the crime of theft and more nebulous offenses, like plagiarism, by pointing out that the former deprives the victim of something of value -- a car, for example -- whereas the latter deprives the victim of nothing -- nothing material, at least. It is hard to see, on this basis, why rape, another offense that leaves its victim apparently deprived of nothing, should be taken so seriously. We have long since learned, however, to see the rape victim as someone who has suffered a serious wrong; we think that her dignity and autonomy are important, and that the rapist, even if he has done her no other harm than to diminish them, has committed a felony.

Just so the plagiarist damages his victim; deprives her of credit for her work and of the gains in reputation that she would have made if she were recognized as the rightful author -- in general, deprives her of the fruits of her labor. I do not mean to suggest that the injury she suffers is as great as that suffered by the rape victim, or that plagiarism should be made a felony; I suggest simply that the two are of the same pattern, as a tiger and a house cat are of the same pattern, though substantially different in magnitude. And if our pet cat claws the furniture, brings in dead birds, and thinks outside the box, we take measures to correct him -- nothing like the measures we would take if a tiger were loose in the neighborhood, but measures nevertheless.

Posner (N): Paradise Lost plagiarizes the book of Genesis in the Old Testament. ... My Fair Lady plagiarized Shaw's play Pygmalion. ... Woody Allen's movie Play It Again, Sam "quotes" a famous scene from Casablanca. ... Many of these "plagiarisms" were authorized, and perhaps none was deceptive. ... But what they show is that copying with variations is an important form of creativity, and this should make us prudent and measured in our condemnations of plagiarism.

Comment: I foresee having a problem here in getting the reader to believe that Posner really said the things in the preceding passage, and meant them seriously. I can only urge the skeptical reader to turn to Posner's essay to see if I've quoted him out of context or otherwise misrepresented him. And neither in this essay nor in any of his other published writings, most of them polemical and sharp-tongued, is there the slightest sign of humor or teasing. If Posner is pulling legs, he has certainly succeeded in pulling mine.

In this passage, Posner simply redefines plagiarism to mean such things as:

  • The construction of a work of art (Paradise Lost) based on material in the public domain (the Old Testament) by a writer (John Milton) who, so far from wanting his readers to remain ignorant of the connection between his work and the earlier material, totally depends on the reader's recognition of that relationship, and would be horrified and despondent if he thought his readers failed to see it.
  • The construction of a work of art (My Fair Lady) on the basis of another one (Shaw's Pygmalion), with payment of a fee to the earlier author or his estate, and with the fullest public acknowledgment -- indeed, with boasting -- of that relationship.
  • The construction of a scene or passage in some literary or theatrical work (the Casablanca allusion in Play It Again, Sam) that depends for its effect on the audience's awareness of its relationship to an earlier one, and has no point without it.

If these examples given by Posner of the use by one artist of material originated by another were indeed cases of plagiarism, then plagiarism would not be even the most venial of offenses, it would be one of the crowning glories of human imagination and creativity. But a material element of what we commonly call
plagiarism is missing from these examples: the claim, explicit or implicit, by the later artist to be the originator of the material he is adapting or alluding to. If we are to overlook that weakness in Posner's case, we may also want to overlook the comparable weaknesses in the cases for the propositions that 2 + 2 = 5, up is down, and night is day. But let us be fair: Posner does allow, rather handsomely, that "perhaps" no deception was intended. And he does put quotation marks around plagiarism in the passage in question, showing that he is at least dimly aware that the examples he has given are simply irrelevant. Why, despite his uneasy suspicion that they were irrelevant, he nonetheless built his whole case on them, is something that I hope Posner will explain to us one day. Until he does, I conjecture that the reason is that lawyers are trained to play whatever cards they hold, however poor, as if they were trumps.

Posner suspects that complaints about plagiarism are not always wholly altruistic and disinterested, saying (N):
But I think the zeal to punish plagiarism reflects less a concern with the real injuries that it occasionally inflicts than with a desire on the part of leaders of professional communities, such as journalists and historians, to enhance their profession's reputation.
If Posner is right, think of the shame of it! Imagine people so degraded and benighted as to want to protect their profession's reputation for integrity! And while we are facing brutal truths, we may want to consider that perhaps some oppose murder on no better grounds than that they don't want to be killed -- a thought that calls the whole criminal justice system into question; how can we be sure that any of our laws are not tainted by the ignoble motive of self-protection?

Posner's defense of plagiarism consists of assembling a list of artistic adaptations, homages, and allusions; calling them examples of plagiarism; and then claiming that these examples show that plagiarism can be pretty wonderful sometimes. Allowed this form of argumentation, I will gladly undertake to prove any proposition you name; even more exciting, I can see myself making a fortune representing clients in appellate proceedings, at least in one appellate court I know of.

Postscript: Giving My Targets a Chance to Talk Back

The editor of The Vocabula Review and I have agreed that people whose work I have attacked in a "Critical Reader" column should be sent a copy of the column, and should be invited to submit a response for possible publication in TVR. We have tried to make the new policy effective retroactively so far as possible: we have sent copies of the appropriate columns to Simon Winchester, David Foster Wallace, Louis Menand, Richard Rorty, Judith Kipper, Peter Trudgill, Stanley Fish, and Donald Kennedy, as well as to Judge Richard A. Posner, whose work is the subject of my current column.

We have had two responses so far: the first, from Professor Peter Trudgill, appears in this issue of TVR. He deserves much credit, I think, for honorably, if somewhat confusedly, attempting to meet at least some of my arguments. I will have a response to him in the next issue of TVR.

The second response is from Judge Posner, who writes of the essay you have just read, "I have no desire to respond to this intemperate piece." Being a judge, Mr. Posner naturally uses highly technical legalistic phraseology that will be obscure to the layman, so I will undertake to translate his statement into plain English: "This guy has me nailed, and left me looking silly. I guess I'll have to fall back on some variant of the old 'I refuse to dignify this vicious attack by commenting on it'; it's weak, but what else can I do -- I can't just admit I wrote something foolish, can I?"

I hope that other targets of my criticism will not similarly attempt to stand on their dignity -- always a precarious perch -- but will step into the arena with me and defend themselves, giving as good as they got. But I'm not optimistic; not many of the people I've criticized will want to cross swords with someone who fights as dirty as I do. My method, shamefully, is to identify that side of an issue on which the truth lies, and then argue for that side only. This gives me an unfair advantage over my adversaries, which they naturally resent and refuse to accept. And, compounding my offense, I refuse to do the gentlemanly thing by making errors in logic, fact, or diction that can be used against me -- altogether, a sordid spectacle, and one that makes it clear that if my challenges are declined, I have no one but myself to blame.

Mark Halpern

Mark Halpern is a freelance editor and writer living in Oakland, California. He has contributed to The Atlantic Monthly and The American Scholar. His website is Rules-of-the-Game.com.



UPDATE (5/5/05)

G.D. Holcomb, a graduate of the very prestigious Michigan Law School, has e-mailed us with a strong endorsement of Mr. Halpern's analysis. He has kindly authorized us to include both his name and his e-mail address . Here is his e-mail:

From : G.D. Holcomb [e-mail originally included in this post, but deleted 8/29/06 per Mr. Holcomb's request; write us to request his e-mail if you need to contact him]
Sent : Thursday, May 5, 2005 11:30 AM
To : AuthorSkeptics (AuthorSkeptics@hotmail.com)
Subject : Mark Halpern's Posner critique

Dear Sir:

I enjoyed reading Mark Halpern's criticism of Judge Posner's views on
plagiarism, as published on AuthorSkeptics.blogspot.com. His arguments
were devastating and absolutely correct. I'm disappointed -- but not
too surprised -- that Judge Posner won't respond. I mean, what could
he possibly say? What have we come to when a well-articulated,
pull-no-punches argument can simply be dismissed as "intemperate"?
Perhaps Judge Posner needs to get out more often.

I particularly enjoy when an intelligent but pompous person makes what
he thinks is a clever and contrarian argument, only to have his dignity
doused by a cold bucket of plain-spoken common sense.

Well done, Mr. Halpern.

G.D. Holcomb
J.D., University of Michigan Law School, '85
St. Germain, WI







Wednesday, May 04, 2005

Tribe Research Assistants Defend Tribe

Yesterday's Harvard Crimson printed a letter from seven current or recent Harvard law students, defending Tribe.  It appears to us, on a quick glance, that all or nearly all of the signers are or were Tribe research assistants, surely a material fact for readers, but one not disclosed in the letter.

The signers are Michael Fertik, Stephen Shackelford, Daniel Richenthal, Jeffrey Jamison, Tara Grove, Chris Egleson, and John Rappaport.

You can read the letter on the paper's website, here.

Monday, May 02, 2005

AuthorSkeptics spreads the word: our e-mail to the tenured faculty of 13 law schools


To spread the word about the dumbing down of standards for scholarly work by professors being carried out at Harvard (particularly the absence of punishment for professors who hire students to write books for them), and to request comments on this matter, during the past several days we have sent the e-mail reprinted below to several hundred tenured professors at some of the nation’s leading law schools, excluding Harvard Law School:

Columbia Law School
Cornell Law School
Duke Law School
Northwestern University School of Law
NYU School of Law
Stanford Law School
University of California – Berkeley, School of Law (Boalt Hall)
University of Chicago Law School
University of Michigan Law School
University of Pennsylvania Law School
University of Texas at Austin School of Law
University of Virginia School of Law
Yale Law School

We believe there are many other law professors around the nation who likely have an interest in the issues we and Dean Velvel are addressing, and who adhere to standards of scholarly conduct not currently being enforced at Harvard. We would be pleased to hear from anyone who wants to take the trouble to comment. In the coming days we will make an effort to contact selected deans and professors at other law schools, asking them to inform all professors at their law school of this blog.

A main reason for this initial limited e-mailing was that we wanted to quickly achieve a critical mass of comments for this blog, which we thought we could do by e-mailing all the tenured professors (including emeriti, but excluding professors occupying clinical and similar positions who may not have been selected based primarily on their scholarship) at those law schools which can reasonably be considered “top 10” schools in terms of their impact on legal scholarship presently or in the recent past, based on a number of factors, as set out on Professor Brian Leiter’s website and in the perhaps infamous but still influential U.S. News & World Report annual ranking of law schools. Many, perhaps most, law professors attended either one of these schools or Harvard Law School, a main subject of our blog.

There obviously are many fine schools and law professors which have had a considerable impact on legal scholarship that are not on this list and that we have not yet e-mailed. Our aim was merely to identify a core group of law schools whose significant influence on legal scholarship cannot reasonably be questioned, and e-mail the professors at those schools who have tenure and who thus are presumably in a better position than others to speak out about academic standards, even at the risk of upsetting their colleagues at their schools, or at other schools.

Here, then, is the text of the e-mail we sent:

Date <_______________>
From "AuthorSkeptics"
To <_______________>
Subject Dean Velvel, Judge Posner, and Professor Perry on Plagiarism/Ghostwriting/Fraud Issues in Legal Scholarship

Dear Professor:

We have a blog on plagiarism issues at Harvard, http://authorskeptics.blogspot.com.

In an extensive commentary, Dean Lawrence Velvel of the Massachusetts School of Law has recently called for the dismissal of Harvard's current leadership because of what he describes as serious, unpunished intellectual dishonesty at Harvard including, it seems, the undisclosed use of student ghostwriters by at least two members of the Harvard law faculty. We have reprinted Dean Velvel’s commentary, with various links to pertinent material available on the Internet, on our blog here:
http://authorskeptics.blogspot.com/2005/04/tribe-transgression-dean-velvels-april.html.

For Dean Velvel’s latest statement, issued April 28, see here:
http://authorskeptics.blogspot.com/2005/04/question-of-honesty-dean-velvels-most.html.

Judge Richard Posner has recently set forth on his blog an explanation of why the undisclosed use by law professors of student ghostwriters poses “an issue of fraud.” We discuss that post on our blog here:
http://authorskeptics.blogspot.com/2005/04/judge-posner-explains-why-undisclosed.html.

As set forth on our blog, Professor Michael Perry has called the “disgusting double standard” on plagiarism at Harvard “unconscionable” and, noting that a non-celebrity law professor who once plagiarized from him was forced to resign his endowed chair, asks whether celebrity professors like those in the news at Harvard are the new “untouchables.” See here:
http://authorskeptics.blogspot.com/2005/04/professor-michael-perry-on-disgusting.html.

We would welcome a statement of your own views on any of the points made by Dean Velvel, Judge Posner, and/or Professor Perry you might wish to address, either in general or as applied to the concrete cases currently in the news at Harvard, or both.

<_______________> law professors have long helped set the standard for legal scholarship in the United States. A statement of your views, and your permission to reprint any such statement on our blog, either with or without your name attached, would be a public service.

We have a strict policy on our blog of not identifying those who e-mail us without their explicit prior consent. You can check with those whose e-mails we have featured on our blog to date (Dean Velvel, Professor Jackson, and Professor Perry) to confirm our trustworthiness in this respect, and the care we take not to identify anyone who writes us, without advance permission.

For a summary of some of our past coverage of the issues currently being debated at Harvard, see:
http://authorskeptics.blogspot.com/2005/04/harvards-official-statement-regarding_16.html.

For a complaint by us about the extent of the stonewalling at Harvard, see:
http://authorskeptics.blogspot.com/2005/04/tribe-transgression-what-and-why-is.html.

If you would prefer to comment not via our blog, but via Dean Velvel's blog, which many prominent academics have done on a variety of issues discussed by Dean Velvel, his e-mail address is Velvel@MSLaw.edu. His blog can be found at http://velvelonnationalaffairs.blogspot.com. To post comments on your own blog or webpage, or on the <_______________> website, would be another option. Perhaps <_______________> might set up a webpage for faculty comments or official statements on these matters relating to the scholarly standards for faculty-published work.

We very much hope you and your colleagues will comment on these matters in some forum.

Sincerely,

“AuthorSkeptics”

AuthorSkeptics@hotmail.com

Sunday, May 01, 2005

The Question of Complicity: our recent e-mail exchange with Dean Velvel


On April 28, Dean Velvel e-mailed us to alert us to his latest post on the Larry Tribe affair, which we then annotated and posted on our own blog, here. We had no knowledge of this post before it was made; that is, even though it mentioned us, we did not suggest it or contribute to its wording.

After posting our annotated version of Dean Velvel's statement, we e-mailed him to alert him to our action. We also mentioned why we used the word "complicit" to describe those in legal academia who, if they do not speak out in some fashion about the issues raised by Dean Velvel, might fairly be accused of assisting Harvard, through their inaction, in sweeping these issues under the rug.

This comment prompted Dean Velvel to e-mail us with some thoughts about the "complicity" issue, and us to e-mail him back on the issue. Dean Velvel has suggested we post all the e-mails, which we are doing below. We will include any future e-mails on this point in an update.

Of course, we welcome e-mails from readers on this point and any other points of interest. As previously explained, our standard practice is to strip all names and identifying information from the e-mails before reprinting them; we will only use your name if you specifically authorize us to do so. Also, we welcome anonymous tips and comments. We are in the process of setting up a companion blog which will make the process of submitting anonymous tips and comments quite simple.

Here, then, are the e-mails. As usual, we have added links to help orient readers; these links were not in the original e-mails.


From: "AuthorSkeptics"
To: "Dean Lawrence R. Velvel"
Sent: Thursday, April 28, 2005 4:28 PM
Subject: Re: A question of honesty

Dean Velvel:

Thank you for alerting us to this. We've posted an annotated version of this on our blog, with a short note endorsing your statements. Note our use of the word "complicit." It may strike some, even you, as too strong, but we wanted to very gently warn people at the top law schools (we're almost half way through e-mailing an alert to all the tenured professors at any school which might be considered "top 10") that if no one at a particular school says anything about this, we might down the line suggest the faculty of that school is "complicit" in the dumbing down of scholarly standards in effect at Harvard. At least we might consider turning up the heat down the line if there's absolutely no commentary at lots of schools, which is why we decided to use the word now.

I'm glad you mentioned the liberal/conservative point. Most law professors are liberals, and Tribe and Ogletree are prominent liberals, and are probably well liked (or perhaps even better for them, well feared) by many other law professors, so it's understandable how ideological/personal reasons might motivate people to remain silent. But we don't see that as a legitimate excuse for remaining silent, merely an explanation.

Sincerely,

Skipper



Date Fri, 29 Apr 2005 10:35 AM
From "Dean Lawrence R. Velvel"
To "AuthorSkeptics"
Subject Re: A question of honesty

April 29, 2005

Dear AuthorSkeptics:

Your latest email causes me to briefly discuss the question of complicity regarding what I think a very important matter in our society and in any democratic society. (Perhaps it is also an important matter to some extent in non-free societies, although there the possibility of dire retribution, even death, enters the equation.) In democratic countries we are free to take stands, to vote, etc. Yet most people do not take stands on most issues, for a wide variety of reasons that are too plain to need elaboration. The result is that evil, bad, call-it-what-you-will triumphs regularly, from politics, to business, to academics, to personal affairs. It seems to me that not taking a stand when faced with something bad is a form of complicity, although I have only ruminated about this, and have not considered it systematically.

One person who has considered it systematically is Barbara Kellerman of the Kennedy School. She has written about the matter in a new book from the Harvard Business School Press called Bad Leadership: What It Is, How It Happens, Why It Matters. I think it fair to say she is properly antagonistic to the complicity displayed by followers and bystanders who allow bad things to happen. You might wish to read her book and/or to get in touch with her. (She is, I note, going to be interviewed about her book for one hour on a television program I host called Books of Our Time, which appears on Comcast's Channel CN8 at 11:00 a.m. on Sundays about twenty times per year. The interview will be taped on May 4th, shown in New England on June 26th, and shown in the mid Atlantic states on an as yet undetermined date. The extensive outline that will be written in order to prepare for the interview will be posted on a website called VelvelsBookOutlines.com shortly after May 4th. The outline will in effect give people a relatively quick precis of Ms. Kellerman's important ideas.)

In the present instance, the question of complicity involves acquiescence in the lowering of academic standards and in further erosion of honesty in American society -- an erosion already responsible for much of what has gone wrong in the last 45 years. Strictly in the academic realm, moreover, the erosion -- and complicity -- go beyond the Harvard Law School and beyond Harvard University. And conceivably one might find it especially problematic to learn of the erosion -- here due to ghostwriting and plagiarism -- in the sciences and in medicine. (Richard Lewontin has written strongly of the problem in the sciences, if memory serves.) [Note: see, e.g., here and here.]

One is aware that, as lawyers and/or as law students, we tend to focus on law schools. But one also suspects that, should you choose to seek it, you might find a lot of support in Cambridge from faculty in departments other than the law school, particularly, perhaps, from professors who already have shown the courage to speak out publicly against various actions of Lawrence Summers. One might equally suspect that, again should you choose to seek it, you might also find support in non-law school departments of other universities. There probably are, after all, a lot of people out there, liberals and conservatives alike I would guess, who are disgusted by the erosion in standards of academic honesty and in standards of honesty generally.

There may also, of course, be people who to one degree or another would justify or defend what has occurred at Harvard with regard to the ghostwriting and/or lack of punishment. If so, they too should weigh in rather than remain silently on the sidelines.

If you do not object, I shall post your email to me and this reply email, and you of course should feel free to do the same. Please let me know, however, if you object to my posting your email.

Sincerely yours,

Lawrence R. Velvel



Date Fri, 29 Apr 2005 6:57 PM
From "AuthorSkeptics"
To "Dean Lawrence R. Velvel"
Subject Re: A question of honesty

Dear Dean Velvel:

As I've said previously, you have our advance permission to post everything and anything we send you -- at least unless in a particular e-mail we indicate otherwise, and state that something is for "your eyes only," and give a valid reason as to why confidentiality is needed, which we anticipate we will rarely, if ever, need to do. As advocates of transparency, we believe the default rule about our communications must be that those who receive e-mails from us should be free to send them to anyone they want, or post them, as they wish, provided of course that the content is reproduced or summarized accurately.

Regarding this particular e-mail you've asked about, we've been planning eventually to post about our e-mailing of professors at the "top 10" schools, and to suggest schools who make no effort to comment on these issues are complicit in the dumbing down of academic standards, and all we were doing was giving you some advance word of our efforts. We have no problem with others being privy to our explanation of what we're doing, now, to the extent it is not obvious from what we have posted already, and from our flurry of e-mails to (so far) 6 schools.

The points you make in your e-mail are very good ones, and I find it difficult to improve on your analysis. I hope you post it. We will probably do the same at some point.

The one thing I would add is that, although there are many reasons a law professor might not comment on a particular issue of some relevance to the legal academy, in this situation I think the "complicity" charge will be very difficult to avoid for those professors who say absolutely nothing at all, that is, neither individually nor through some joint statement or the statement of a faculty member appointed to address the issue on behalf of a school's entire faculty. (I agree with you that 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).

To my mind, silence on this high-profile issue of whether it involves serious academic misconduct, even fraud, for a law professor to make undisclosed use of ghostwriters to write major portions of a work can only reflect:

(1) a decision by the law professor that the issue isn't important enough to comment on, that is, rather than take the time to review the issue and make a statement, particularly a statement on whether such conduct by law professors is acceptable at the law professor's school, the law professor decided to spend the time on other professional or personal pursuits which he or she regarded as more important than defending basic principles of academic integrity; or

(2) a decision by the law professor that any statement on the issue might put the law professor, or his or her ideological or personal allies, at risk, for example, because the allies, or even the law professor himself or herself, use ghostwriters.

At the risk of unduly aggrandizing the likely impact of our efforts, and your efforts, if after everyone has a full opportunity to read through the relevant materials about what has happened at Harvard, we see an extended period of silence at one or more law schools, I don't think people will draw the conclusion that no one at the particular law school cares about matters of academic fraud involving the undisclosed use of student ghostwriters by law professors.

I think people will draw the conclusion that at that law school, as seems to be the case at Harvard, the law professors routinely use students to ghostwrite parts of their publications, and no one sees much if anything wrong with that, but that just like at Harvard, rather than face up to the issues this raises and either uphold traditional practice and ban it or reverse traditional practice and endorse it, that law school is complicit with Harvard in trying to sweep such issues under the rug.

Sincerely,

"Skipper"

AuthorSkeptics@hotmail.com

"Helping ensure Harvard plagiarists face the music, since September 2004."

Thursday, April 28, 2005

"A Question of Honesty": Dean Velvel's Most Recent Statement


Dean Velvel's most recent statement on what is happening at Harvard was released this afternoon and is posted on his blog, here.

In his statement, Dean Velvel urges those who care about honesty in academia to comment on the decision at Harvard that there will be no punishment for professors who hire students to ghostwrite a publication, even though a student doing the same thing would be severely punished.

Dean Velvel properly emphasizes that one's view of this issue should not depend on whether one is a "liberal" or "conservative" politically. All who care about academics should care about this issue, and should care enough to speak out about it, rather than being complicit with those at Harvard who, for whatever reason, would wish to see the issue swept under the rug.

As a service to our readers, we reprint Dean Velvel's statement in full here, with various links we have added (without consultating with Dean Velvel) which might be of aid to our readers.

April 28, 2005

Velvel on National Affairs and AuthorSkeptics take a close look at:

A Question of Honesty

Colleagues:

Whether one is liberal or conservative in politics, all of us who care deeply about honesty in academic and literary achievement should focus on the plagiarism and ghostwriting which have occurred at Harvard. That plagiarism and ghostwriting have now gone completely unpunished in the Larry Tribe affair.

For better or worse, Harvard often sets the standard. Now its President, Lawrence Summers, has acted in a way that impairs academic integrity: he has in effect declared that there will be no punishment for ghostwriting -- for getting ahead by having others write parts of a book but putting your own name on it as the sole author.

Ghostwriting has become a major problem, including in science (and, we note, in medicine). Judge Richard Posner has said it may sometimes be a fraud, and the phenomenon is analyzed extensively in a recent posting by Dean Lawrence R. Velvel on VelvelonNationalAffairs.blogspot.com. Because of the serious nature of ghostwriting, and the failure of President Summers to punish it even though it lacks integrity, Dean Velvel has called for the dismissal of Summers after the latter’s long series of contretemps.

The comments of Judge Posner and Dean Velvel not only appear on their own blogs, but have also been posted on the website of AuthorSkeptics.blogspot.com.

Dean Velvel and AuthorSkeptics hope that people, whether liberal or conservative, will take the trouble to learn about and comment on this serious issue of basic honesty. To facilitate comments relating to Dean Velvel’s numerous points, AuthorSkeptics have numbered each of his paragraphs on the AuthorSkeptics website. Persons who are willing to comment publicly on ghostwriting can forward their views to Dean Velvel or to AuthorSkeptics for posting. Or people can, of course, comment on their own sites. If people comment on their own sites, we hope they will tell Dean Velvel and AuthorSkeptics that they have done so.

Robert Kent

Administrative Assistant to Dean Velvel

posted by Lawrence R. Velvel at 2:18 PM [4/28/05]



Wednesday, April 27, 2005

Professor Michael Perry on the “disgusting double standard" on plagiarism at Harvard


Last September, immediately after the Tribe plagiarism story broke, a constitutional law scholar e-mailed us about what he termed the “disgusting double standard” that seemed to be in effect at Harvard.

This e-mail correspondent, our very first on the Tribe matter, was Professor Michael J. Perry, the Robert W. Woodruff Professor of Law at Emory University, who before relocating to Emory was a law professor at Northwestern University (between 1982 and 1997), where he was the Howard J. Trienens Professor of Law.

We e-mailed Professor Perry, and he promptly and generously authorized us to set forth on our blog the statement from him which we now reprint below.

We waited seven months before posting Professor Perry’s statement because, as we explained then (perhaps being overly cautious as matters turned out), we believed it was “premature for . . . anyone[] to pass judgment on Professor Tribe until he has an opportunity to write to defend himself against the charges in the Weekly Standard article, . . . . Professor Tribe has a considerable scholarly reputation, and we feel he should be given the benefit of any doubt until he has had an opportunity to address the specifics of the charges.” We also thought Professor Perry might appreciate the opportunity to reflect further once Professor Tribe made an additional statement and Harvard took some action.

Here, with Professor Perry’s renewed permission, is Professor Perry’s statement from last September which, while unchanged, seems even more apt today than when it was issued, especially in light of the concerns Dean Velvel has recently expressed about Harvard’s handling of the Tribe matter, which triggered renewed complaints by Harvard students about the double standard at Harvard:
With respect to plagiarism, it is undeniably unconscionable for an institution to treat student offenders more severely than professor offenders. Some years ago, some of my work in constitutional theory was plagiarized by another law professor, in consequence of which he resigned his endowed chair and took up a teaching position at a different institution. But he was not a celebrity professor. Are celebrity professors the new "untouchables"?

Prof. Michael J. Perry
We were intrigued to learn that, despite the obstacles to stripping a law professor of his or her academic position as a result of scholarly misconduct which were recently noted by Professor Gary S. Becker, here, that was the consequence of the plagiarism of Professor Perry’s work. Do readers know of any other similar examples? Do readers agree with Professor Perry's suggestion that celebrity professors may be the new "untouchables"?

We are interested in receiving comments on Professor Perry's statement, and on the other matters recently covered in this blog. If you comment, please explicitly tell us whether, if we reprint your comment, you are willing to be identified by name.


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


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

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

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

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

In his post, Judge Posner argues that the term “plagiarism” is not properly used to describe every instance of unauthorized copying from another person. Rather, the term is properly “reserved for cases of fraud.” In exploring the fraud question, Judge Posner discusses the apparently recent phenomenon of
the “managed book,” or more broadly the use of research assistants or other aides in the creation of a book. The term refers to a book in which the nominal author is actually an editor — an assembler and maybe a reviser — of work done by persons whom he has hired. He is much like a movie director. He presides over the composition of the work rather than being the composer. . . . It seems likely that many multivolume treatises by (that is, nominally by) law professors are “managed books” in which most of the actual writing is done by student research assistants — though I am guessing; I have no actual evidence.
This issue of undisclosed student ghostwriting has been a major one for us since last September concerning both the Ogletree matter and the Tribe matter, based on reports that substantial portions of the books in question were written for them by law students (something Ogletree and Tribe have basically conceded through their statements to the press combined with their failure to make simple statements suggested by Dean Velvel which, if true, would clear them of the ghostwriting charge, see here and here). So Judge Posner’s analysis is, in our view, strongly supportive of the emphasis we have placed on the ghostwriting issue from the very start, in an early post on the Ogletree matter.

According the Judge Posner (who avoids addressing the specifics of the Ogletree and Tribe matters, or of any other concrete case), the undisclosed use of student ghostwriters presents an issue of fraud:
Let me say, as someone who has written a number of books, that the idea of writing a “managed book” is not to my personal taste. I think that the person who writes a first draft largely controls the final product, even if it is carefully edited by the “author” of the managed book. But the issue of plagiarism has nothing to do with the taste of particular writers. It is an issue of fraud. So the question regarding the managed book is whether failure to disclose that most of the actual writing was done by persons other than the nominal author misleads readers to their detriment. That depends mainly on the conventions, and hence expectations, of a particular field.
At least as to American legal treatises, according to Judge Posner, the reader would not expect that much of the book was actually written by law students (we believe this is true even more clearly for single-subject books such as the Ogletree and Tribe books which currently are in the spotlight at Harvard). Judge Posner explains:
That is not the norm in the United States. I believe without knowing that the delegation of the writing of extensive portions of such works is recent, and much of the profession, including the treatise author’s colleagues, may be unaware of the trend — if there is a trend, of which I am not certain. It would be prudent, therefore, for such treatise writers to acknowledge the coautho[r]ship or first-draft responsibility of their students, in order to avoid a charge of plagiarism.
Confirmation that the norm in the United States is that a reader of a book authored by a law professor would not expect that much of the actual writing on the book was done by persons other than the nominal "author" can be found in an insightful post from law professor Glenn Reynolds of "Instapundit" fame, which he made last September shortly after the Tribe plagiarism story broke, on an issue which at that point we observed merited comment by Professor Tribe, here. Here is what Professor Reynolds said about the phenomenon of "managed books" of the sort which by then it had become widely accepted Professor Ogletree had "produced," and which it now appears Professor Tribe "produced" as well:
Getting together a bunch of research assistants and outsourcing a book to them, with the product of their work appearing under one's own name, isn't exactly immoral -- but it isn't scholarship, either. I've never used research assistants that way, and it seems obvious that doing so isn't a very good idea. Whether it results in plagiarism, or simply a shoddy product, you're not getting the work product of the person whose name is on the cover. With celebrity autobiographies and the like, that's okay, since everyone knows it, and most celebrities couldn't turn out a book on their own. I don't think that either of those considerations holds true where academics are concerned. . . . .
We would be interested to hear the opinions of other law professors on the applicable norm in the United States regarding whether readers of a book authored by a law professor expect that much of the actual writing was done by persons other than the nominal "author," such as students of the law professor. Does anyone disagree with the view of Judge Posner and Professor Reynolds?

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

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

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

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

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

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

Students who submit work that is not their own without clear attribution of all sources, even if inadvertently, will be subject to disciplinary action.
We look forward to reactions from readers, particularly from law professors, on the points made by Judge Posner and Professor Reynolds, and in this post. Unless indicated otherwise in an e-mail, we will assume we are free to reprint anything sent us, although we are not free to identify the sender.


UPDATE (5/6/05)

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



Sunday, April 24, 2005

The Tribe Transgression: Dean Velvel's April 22 Post on Tribe, Summers, and Kagan


Yesterday Dean Velvel posted an important, quite lengthy, analysis of the plagiarism charges against Professor Tribe and of how Professor Tribe and the Harvard administration have addressed them to date.

His post can be found at this link: http://velvelonnationalaffairs.blogspot.com/2005/04/re-larry-tribe-larry-summers-and-elena.html.

As a service to readers, we reprint Dean Velvel's post below, adding various links to potentially relevant material which may be useful to those who have not been closely following the various Harvard plagiarism stories. Also, we have added paragraph numbers (in brackets, and in bold), to facilitate future discussion of specific points Dean Velvel makes, by making it easy for people to refer to specific paragraphs.

Note that the links are being added without any input from Dean Vevel. That is, in no sense do the links somehow elaborate on the meaning of Dean Velvel's text. They simply reflect materials which, for whatever reason, we chose to link to in an effort to better inform our readers regarding what is being discussed.

We look forward to readers' reactions to Dean Velvel's post, sent either to Dean Velvel (at Velvel@mslaw.edu) for posting on his blog, or to us (at Author_Skeptics@allmail.net) for posting on this blog, as readers may prefer. As explained here, regarding e-mails sent us, unless you specify otherwise, we will assume we may reprint anything you say, but without using your name. We will not identify you by name unless you specifically authorize us to do so. Also, as explained here, we welcome submissions, in particular tips on possible additional points we might cover, made by anonymous e-mail.

Here, then, is our annotated version of Dean Velvel's post:


Friday, April 22, 2005

Re: Larry Tribe, Larry Summers, And Elena Kagan

April 22, 2005

Re: Larry Tribe, Larry Summers, And Elena Kagan:
Because Of The Larry Tribe Affair, It Is Time For Larry Summers To Go.
And He Should Take Elena Kagan With Him.

From: Dean Lawrence R. Velvel, VelvelOnNationalAffairs.blogspot.com

Dear Colleagues:

[1.] Harvard University is now probably the only school in the country with a University Professor who is an admitted plagiarist. Being a University Professor at Harvard -- where, I have variously read, there only are either 17 or 19 of them out of a faculty of approximately fifteen hundred -- is supposed to be a great honor. One would think a University Professor should not only be highly accomplished intellectually, but a person of impeccable intellectual integrity. One would think wrongly, apparently.


[2.] Larry Summers appointed Larry Tribe a University Professor. Then the bad stuff hit the fan, as it was learned that in the mid 1980s Tribe wrote a book in which he both plagiarized from and extensively copycatted a book by a University of Virginia professor. But Larry Summers now has imposed no punishment on Larry Tribe. (There seems to be a conspiracy of Larrys from which I am excluded.) Oh, in an announcement dated Wednesday, April 13th and issued on April 14th, Summers did say that what Tribe did was "a significant lapse in proper academic practice." But of punishment there was none, not even the loss of Tribe’s title and position of University Professor.


[3.] As far as this writer can see, the failure of punishment by Summers should be the last straw with that guy. After what seems to have been a never ending series of contretemps and foul-ups, Summers’ failure to visit even the slightest punishment on Tribe, Summers’ gross failure to uphold intellectual integrity, is further proof -- if further proof were needed -- that he is not fit to lead Harvard or any university. He should be fired. And when he leaves he should take Elena Kagan, the Dean of the Law School, with him. They are a combined embarrassment.

* * * * *


[4.] Readers of this and other blogs will have a good idea, and readers of the media will have some but less of an idea, of what occurred prior to Summers’ announcement dated April 13th. Last fall Tribe made a public statement defending the indefensible actions of his colleague Charles Ogletree, who committed plagiarism -- and who, it now seems to have become widely accepted after analysis here of [how] his supposed apology suggested the possibility of ghostwriting, had parts of a book written for him by assistants. Tribe was taken to task here for his statement defending Ogletree, and was offered an opportunity to respond to this criticism and to a very critical additional comment, posted here, from a famous writer of the left, Michael Parenti. Respond Tribe did, saying, among other things, that "As to the larger problem you describe -- the problem of writers, political office-seekers, judges and other high government officials passing off the work of others as their own -- I think you’re focusing on a phenomenon of some significance." In his next sentence Tribe then went on to criticize this writer for issuing criticisms without knowing the full story:
I do wish, though, that its exploration [i.e., exploration of the "phenomenon of some significance"] could be separated in the interest of human kindness and simple decency as well as that of accuracy, from public excoriation of individuals and episodes about which your knowledge is necessarily limited.

[5.] This author then sent a responding email to Tribe requesting permission to post his email plus the response, and taking issue with the criticism he had made. The email to Tribe said:
Thank you for your email. I would like to post it, along with this response, but will not do so if you object. Please let me know if you do object.

With regard to the last sentence of your letter, let me say this. I often think of major philosophical and societal problems in the context of concrete cases. Indeed, philosophical and societal ideas are useful only in the context of such cases. In the abstract, divorced from life, they are of little or no consequence. The Ogletree matter is a concrete case illustrating widespread problems, so it seems proper to discuss the overall problems and the concrete case together. This is only the more true because the problems involved have received so little attention and are the subject of so little general concern.

Beyond this, if kindness and decency require that one not discuss a matter on the basis of what has become known with some degree of certainty in the public sphere, then how is criticism to be leveled by any person whose "knowledge is necessarily limited" to what has appeared in that sphere? And wouldn’t we have to depend for criticisms on those who are closest to the situation, who have the most reason not to discuss it lest they or their institution be harmed, and who are least likely to publicly discuss or criticize? To be honest, while I certainly do appreciate and applaud your human concern for Professor Ogletree, it is nonetheless difficult to believe that you, one of the great champions of civil liberties in our generation, would make the point you made were this a case involving first amendment rights. As said, please let me know if you object to the posting of your email and this response.

[6.]
No more was thereafter said by either Tribe or myself regarding the criticism he had made. This, one believes, is fortunate for and reflects good sense by Tribe, since his point would seem to be utter bushwa designed on the spur of the moment to try to put down a critic of his liberal colleague. (One cannot imagine him, for example, taking the same position about those who criticize (long secret) policies of the Bush Administration, even though the critics’ "knowledge is necessarily limited" regarding the policies.)


[7.]
Tribe’s other comment -- about the "larger problem" of people "passing off the work of others as their own" being a "phenomenon of some significance" -- did not depart so quietly, however. Apparently a law professor who knew what Tribe had done (I haven’t the foggiest who the professor was) got incensed by a comment he or she considered hypocritical, and blew the whistle on Tribe’s plagiarism and copycatting to Joseph Bottum, a conservative author who then wrote for The Weekly Standard (and now writes for First Things). The professor, according to a subsequent article Bottum wrote in The Weekly Standard, "suggested we take a look at Tribe’s own [1985] God Save This Honorable Court if we wanted to explore the ‘problem of writers . . . passing off the work of others as their own.’" (Ellipsis in Weekly Standard article.) Bottum looked at the book and then wrote a 4,717 word article detailing instance after instance in which Tribe’s book plagiarized, or without attribution copycatted, from a 1974 book entitled Justices and Presidents: A Political History of Appointments to the Supreme Court, by University of Virginia Professor Henry J. Abraham.


[8.]
In addition to giving examples -- and it is one writer’s understanding that he has many more of them -- Bottum said the following as a more general matter: "The historical sections of the book typically consist [emphasis added] of a long passage from Abraham crunched down by rephrasing and the elimination of detail -- as one might expect when Abraham’s 298 pages of material are made to provide the facts around which Tribe builds his own thesis in [only] 143 pages of text."


[9.]
When it comes to the examples themselves, not all of the ones given by Bottum seem greatly convincing; some might be thought a stretch. But others are simply devastating: there can be no mistaking that they are outright plagiarism or very close copycatting. There is one "identical nineteen-word passage in both books: ‘Taft publicly pronounced Pitney to be a ‘weak member’ of the Court to whom he could ‘not assign cases.’" There are two sentences that are very close. Abraham said, "But almost at once the Chairman of the Senate’s Judiciary Committee, George W. Norris, made it plain to the President that he and his fellow committeemen, largely Democrats and Progressive Republicans, would insist on a judicial liberal in the Holmes mold." Tribe said, "The chairman of the Judiciary Committee, Senator George Norris, immediately made it clear to President Hoover that he and his fellow committee members, mostly Democrats and Progressive Republicans, would insist upon a liberal jurist in the Holmes mold." Bottum sets forth a borrowed inversion "'Abraham has it that Caleb Cushing was unquestionably highly qualified and possessed of a superb mind.'" Tribe inverts the clauses to say that "Cushing was possessed of a fine mind and undoubtedly highly qualified." Tom Clark takes a virtual identical hit. Tribe said, "One periodical characterized [Tom] Clark as a ‘second-rate political hack who has known what backs to slap and when." Abraham says that Harold Ickes said in the New Republic that "'Truman was under no obligation whatsoever to this ‘second-rate political hack who has known what backs to slap and when.'" There is even a sentence in which, Bottum says, Tribe repeated a small mistake made by Abraham in a quotation he took from Justice Cardozo.


[10.]
According to Bottum (whose claim is easily checked and has not been denied), in his famous work entitled The Nature of the Judicial Process, Justice Cardozo, speaking of Chief Justice John Marshall, said "‘He gave the constitution the impress of his own mind.’" (Emphasis added.) Abraham, however, mistakenly quoted Cardozo as saying, "‘Marshall gave to the constitution of the United States the impress of his own mind.’" (Emphasis added showing differences in the two quotes.) Tribe, says Bottum, simply copied Abraham’s mistaken use of the name "Marshall" instead of use of the pronoun "he."


[11.] One other aspect of Bottum’s article was of great importance, though it seems to have been little commented upon after the article came out. Ron Klain is a Washington lawyer who was Chief of Staff for Vice President Gore. Back in the mid ’80s, when he was a first year law student at Harvard, he had been a student assistant for Tribe. Bottum quoted a Washington law newspaper, called Legal Times, as saying in 1993 that "‘Klain spent most of his time with Tribe working on God Save This Honorable Court.’" Bottum subsequently adds, again quoting, apparently still from Legal Times, "‘Many of Klain’s friends and former colleagues say that he wrote large sections of the book, a claim that Tribe disputes.’"


[12.] Somehow or other these statements, as said, attracted little attention, not even from this blogger, even though, by the time Bottum wrote them, it seemed pretty clear that a major transgression by Ogletree was that student assistants had written parts of Ogletree’s book for him. If one were to speculate on why, in such circumstances, little attention was paid to Bottum’s statement about Klain possibly ghostwriting large sections of Tribe’s book, the speculation might well be this: Immediately after Bottum’s article appeared online, Tribe, in what certainly seemed to be a very proper and manly action, "issued a statement . . . acknowledging that passages in his 1985 "God Save This Honorable Court" were borrowed from a book written in 1974 by Henry J. Abraham . . . . In his statement, Tribe said, ‘I personally take full responsibility’ for not crediting the material borrowed from Abraham . . . . ‘My well-meaning effort to write a book accessible to [laymen] through the omission of any footnotes or endnotes . . . came at an unacceptable cost: my failure to attribute some of the material The Weekly Standard identified.’" (The foregoing, including excerpts from Tribe’s statement, and also including the internal ellipsis, is from the Los Angeles Times of September 29th. Tribe’s statement apparently was initially sent to The Harvard Crimson, and much of the same material appears in the September 27th Crimson as in the LA Times. I do not know if Tribe himself also sent the statement to the LA Times.)


[13.] Tribe, the LA Times added, also "said he ‘immediately’ wrote a letter of apology to Abraham."


[14.] So Tribe immediately said mea culpa, criticized his own conduct, and apologized to Abraham, all of which is conduct that, one suspects, caused people to think, "well, he’s admitted his guilt, which is a proper thing to have done. Moreover, though he admitted borrowing, he has denied the accusation of ghostwriting. So, in the circumstances, let’s not browbeat him to death, so to speak, about the ghostwriting possibility." This is, at minimum, why this writer believes he overlooked the unhappy possibility of ghostwriting -- an oversight to which I plead guilty and now consider pretty much unforgivable. Yet, inevitably, one also has to wonder whether Tribe’s immediate apology was not only proper and manly, but also cleverly warded off deeper inquiry.


[15.] After Tribe’s apology, not very much seems to have gone on that came to public notice, as far as I can tell. Oh, this blogger did say in a post of December 15th that Summers and Kagan had said nothing about the Tribe matter, had not even announced the formation of a committee to investigate, which is what is usually done in academia to kill a problem. It was further said here that, as old Washington hands who know that the attention span of the press is as long as a fingernail is deep, Summers and Kagan were perhaps just lying low, knowing that if they said nothing the problem would probably go away. But for things to be said on this blog is not to be confused with those things coming to public attention, and very little if any public attention was paid to the Tribe matter.


[16.] It now turns out that, as disclosed in the joint Summers/Kagan statement (the S/KS) of April 13th, at some point -- one doesn’t know when -- Summers and Kagan appointed a three person committee to investigate the Tribe matter. The committee members were the highly prominent Derek Bok, the former Dean of the Law School who thereafter was President of the University for many years, Jeremy Knowles, the former Dean of the Faculty of Arts and Sciences, and a University Professor and Harvard University Librarian, Sidney Verba. (A librarian named Verba -- it’s too much.) According to the S/KS, the three committee members "inquire[d] into the circumstances by reviewing the materials and speaking with the individuals principally involved. They in turn reported their factual findings to us." Whether the report was written or oral is not said. If written, it was not released.


[17.] The S/KS begins by saying that an article "contended" that Tribe’s book "contained a number of passages or phrases not appropriately "attributed" to Abraham. Upon learning of this claim and reviewing the books, the S/KS continues, Tribe "promptly issued a public statement acknowledging his failure to properly attribute some of the material identified in the magazine article, and taking full responsibility for that failure. He also sent a letter of apology to Professor Abraham."


[18.] Subsequently, the S/KS says -- the S/KS admits might be better phraseology -- that "it is apparent that [Tribe’s work] contained various brief passages and phrases that echo or overlap with material in the Abraham book, and that he failed to provide appropriate attribution for them." The S/KS then proceeds to make excuses for this. "We have taken note," say Summers and Kagan, "that the relevant conduct took place two decades ago." They have taken note, they say, that "Tribe’s book (written without footnotes and for a general audience) mentioned the Abraham book in a concluding bibliographic note." They have taken note that "the unattributed material related more to matters of phrasing than to fundamental ideas" (a most dubious assertion, one could think). They "are also firmly convinced," they continue, "that the error was the product of inadvertence rather than intentionality." "Nevertheless," they further continue after applying all the foregoing coats of whitewash, the conduct was a "significant lapse in proper academic practice" and, "however inadvertent," was "a matter of serious concern in our academic community." It was, one sarcastically notes, of such "serious concern in our academic community" that, without any punishment being imposed, Summers and Kagan "now consider the matter closed" and, as per "usual University practice," will make "no further comment on the matter."


[19.] What can one say of this travesty? Only, I suppose, that it is a travesty. Its language is misleading, its logic miserable, and its spirit corrupt. And all of this obviously was done in the true Washington, D.C. spirit of a whitewashing spin worthy of a Clinton or a Johnson or a Nixon or a Bush.


[20.] Let us parse the S/KS:


[21.] Bottum’s magazine article merely "contended" that Tribe failed to properly attribute phrases and passages? Bottum merely "contended" this? For God’s sake, not only did Bottum make accusations, but Tribe admitted his misconduct almost immediately. We do not have some mere contention, but an accusation guiltily conceded to be fact.


[22.] There were only "brief passages and phrases that echo or overlap" material in the Abraham book? A word for word plagiarism is merely an "echo or overlap"? Ditto the remarkably similar quotes about George Norris? Ditto the investigation about Cushing? Ditto the oh so close statements about the backslapping Clark and about the impress of Marshall’s mind (where even a mistake is repeated)? Right, and we were all born yesterday.


[23.] The conduct occurred two decades ago? So what? What does this mean other than that Tribe managed to keep the lid on the scandal, managed to keep it tamped down, managed to hide it, for twenty years? (Do we forgive criminals because their crimes were committed 20 years ago, but they managed to hide them for two decades?) Maybe the fact that the initial misconduct occurred 20 years ago, and was hidden for 20 years, only makes the situation worse, not better.


[24.] Tribe mentioned Abraham’s book in a bibliography at the back of his own work? From this one was to deduce that he quoted Abraham exactly or semi-exactly and copycatted him regularly?


[25.] The plagiarism and copycatting relate "more" to phraseology than to fundamental ideas. Well use of the comparative word "more" necessarily means some of it related to fundamental ideas. And one man’s mere phraseology may be another’s fundamental idea. (One man’s Mede is another man’s Persian, as George S. Kaufman once said.) And since when did it become academically permissible to plagiarize or copycat phraseology? Since when did that become a defense to plagiarism? That it is now a defense is news to me.


[26.] Tribe acknowledged his failure to attribute and sent a letter of apology? Why didn’t he do it 20 years earlier? Why didn’t he do it 12 years ago when a question arose in Legal Times? Why did he wait until the excrement was hitting the fan because of the extensive article by Bottum, the Ogletree matter, and such other unhappy matters as those involving Harvard-connected people like Kearns-Goodwin and Dershowitz, not to mention the Stephen Ambrose situation. In short, why did Tribe wait until it was obviously very dangerous to wait any longer?


[27.] And then there is the question of why were Summers and Kagan so "firmly convinced that the error was the product of inadvertence rather than intentionality"? Perhaps because Tribe said so. But there is another possibility too, one to which we shall return later, a possibility identical to the one in the Ogletree matter. Perhaps Tribe did not advertently or intentionally make the error because the error was not made by him. Perhaps it was made by one or more ghostwriting assistants, and Tribe could not even know that what he or she or they were writing was identical to or a copycat of what Abraham wrote.


[28.] Regardless of this last possibility, however, it is clear that the putative "logic" of the S/KS is only putative. The S/KS is, in reality, a whitewash, a whitewash that avoids punishing a celebrity star professor who, despite his stardom, did something quite wrong and got away with it for two decades. It is further proof of what we all know. If you are a big enough deal and can hide your misconduct for long enough, nothing will ever happen to you. Nothing will happen no matter how heinous, or even criminal, your conduct. Johnson, Bush, McNamara, Nixon, Kissinger, Clinton, Bush II -- nothing has or ever will happen to those guys because they are huge big deals and their bad acts recede ever more into the past. Ditto Larry Tribe. (But, needless to add, if the cops finally find some poor schmuck who embezzled money or robbed a store 15 years ago, off he will go to the slammer.)

* * * * *


[29.] Summers and Kagan were not the only ones to put their names to a statement dated April 13th and issued April 14th. Tribe did so, too. (There was obvious coordination. In fact, in an email to a Crimson reporter forwarding the S/KS to him, the Harvard public relations man handling the matter, Mike Armini, said that Tribe too is releasing a statement that Armini would have soon and Armini could email Tribe’s statement, too, to the reporter.)


[30.] Tribe’s statement was more or less a rehash. He said the problem had occurred "two decades earlier," that he had sent Abraham a letter saying that he had "singled out his book in a bibliographic note as the ‘leading history of Supreme Court appointments,"’ but this "general acknowledgment was no substitute for more precise attribution," and that he had "issued a public statement apologizing to Prof. Abraham, acknowledging my lapse and accepting full responsibility for it." Nothing new here.


[31.] But then he said that, because he did not think he should comment while Summers and Kagan "reviewed the results of the inquiry," he had "said nothing further about this 20-year-old error, even as I have seen some mischaracterize it as intentional theft of another’s ideas and have watched as my character and integrity have been impugned." He then said, correctly, that though they had said he was guilty of a significant lapse in good practice, Summers and Kagan had found his error to relate more to form than substance and to be inadvertent rather than intentional. He reiterated his "apology for that error and my assumption of responsibility for it," expressed gratitude "that the University’s inquiry found no basis for accusations of dishonesty or intellectual theft," and said that "like the University, I now consider the matter closed and will not comment further about it."


[32.] Now, there’s not much wrong with what Tribe said. It is true that one wonders how he can have any right to complain that "some characterize it as intentional theft of another’s ideas and [he has] watched as my character and integrity have been impugned." After all, he did put his name to a work that plagiarized and copycatted, and this is dishonest and contrary to the academic ethos. So he is guilty of academic theft by virtue of either intent or sloppiness, each of which fails to consist with integrity, and each of which creates dishonesty, whether advertent or negligent. Each of which does these things, that is, unless he could not know of the plagiarism and copycatting because someone else wrote the material for him -- which raises a different, and some feel far worse, set of problems.


[33.] As for his statement that he will not comment further, this is a smart thing to do, since the less he says, the more likely the problem is to go away, especially given the media’s nearly non-existent attention span. Indeed, except for one small article in The Boston Globe that did little but parrot the statements dated April 13th (and, of course, an article in the Harvard College newspaper, The Crimson), the media thus far seems not to have carried news of what Summers and Kagan did. Little wonder given the ineptitude of our mass media and their oft shown lack of concern for honesty. Tribe understandably would like to keep it this way, i.e., would like there to continue to be no comment in the media, and not talking is the best way to accomplish that. As well, being able to say "I have said I will not comment further" may be a good way to at least try to avoid a certain other question which, as we shall see, could prove very embarrassing.

* * * * *


[34.] Let us turn now to the ghost in the room, to the question of ghostwriting. The question is, did one or more student assistants -- perhaps Klain, perhaps others -- write parts of Tribe’s book, so that it was really student assistants, not Tribe, who did the plagiarizing and copycatting? And, if this did occur, so what?


[35.] At present, an ordinary member of the public cannot know whether the book was to some extent ghostwritten for Tribe. It is possible, of course, that Bok, Knowles and Verba learned the answer to this question, and that they told Summers and Kagan. Indeed, it has been suggested to me, somewhat bitterly, that the reason Summers and Kagan can be certain the plagiarism and copycatting were inadvertent on Tribe’s part is that they know one or more assistants, not Tribe, wrote the offending parts of the book. But none of those five Harvardians are talking as far as I know. Klain, and perhaps other Tribe assistants of the period also will know the answer to the question of ghostwriting, but either nobody has asked them or they too are not talking.


[36.] There are, however, some general ideas and some facts that could lead one to speculate that there might have been ghostwriting here. Ghostwriting, horribly enough, has become all too prevalent in academia as a general matter. The situation is not as bad yet in academia as in business, politics and government, where ghostwriting is the order of the day -- there is a bitter saying that in government you never write what you sign and never sign what you write. But it nevertheless has become reasonably common in academia. The Ogletree and Tribe matters were catalysts leading to numerous articles and Internet postings giving examples of it and/or complaining about it. It appears that student assistants and graduate students are made to do this for their bosses with some unfortunate regularity.


[37.] Then, too, at the Harvard Law School itself, it is pretty clear and is now widely accepted that ghostwriting was involved in the Ogletree matter. As well, the famous Harvard Law Professor Alan Dershowitz made a pregnant comment in an email to me in response to a criticism this blogger had made of his position vis a vis the Tribe matter. This writer criticized Dershowitz’s view that different standards apply in the legal profession, including legal academia, than elsewhere because of a "cultural difference." This supposed cultural difference was said to arise from the fact that judges use the language of briefs and of clerks’ memoranda when drafting opinions, and lawyers use the work of assistants. In responding to this writer’s criticism, Dershowitz said that his point "was in no way intended to provide any kind of a justification for plagiarism," but was made "in the related but different context" of "the problem of lawyers and law professors assigning drafting responsibility to research assistants -- a phenomenon that may well lead to accidental plagiarism." (emphasis added.) What we have here, then, is one of the major celebrity professors at Harvard (and a fellow whom this writer, at least, considers intellectually "top drawer") saying in effect that law professors do have assistants write their stuff and that this causes accidental plagiarism.


[38.] Then there is Tribe’s own, conceivably significant phraseology in apologizing for the failure to attribute material to Abraham. "I personally take full responsibility," he said. (Emphasis added.) He personally takes full responsibility? If he wrote the stuff himself, who else should take responsibility? The only way that use of the phrase I personally take full responsibility makes any logical sense is if someone else was involved and made the mistake, but Tribe is taking the responsibility unto himself, much as, say, a captain in the Royal Navy of Nelson’s day was held personally responsible for everything that happened on his ship even though he had no part in or knowledge of it (is it the same in today’s navies?), or much as Nixon used to Nixonesquely say he accepts responsibility for the terrible things done in his name though he had nothing to do with them.


[39.] Of course, it has to be said that people don’t always use the word "personally" in this logical way. Instead they use it merely as a sort of emotional way of emphasizing something. For instance, a person will say "I personally think" this or that. Well of course the individual personally thinks it -- who else would be inside his brain thinking it? The use of the word personally here is not a matter of logic, but a device for emphasis. Maybe that is how Tribe used it.


[40.] Similar points can be made about language used in Tribe’s statement dated April 13th. He said that when news of his "lapse" broke, he issued a statement "accepting full responsibility for it." He later said he was reiterating "my assumption of responsibility for it." Now why would Tribe "accep[t] full responsibility" unless someone else were in fact at least partly responsible, and why would he reiterate his assumption of responsibility unless someone else were responsible? His choice of words makes it seem like someone else was involved, and that someone else would be student assistant(s) who wrote the offending material. On the other hand, maybe, like use of the word "personally," words were not chosen for their strict logical content, but rather were just ways of giving emotional emphasis to the statement that he is responsible for what happened.


[41.] There is one last evidential point, although it is more of a subjective impression than anything else. When one reads Bottum’s many examples of copycatting, some or even lots of them seem pretty unsophisticated, as if they were not done with the kind of skill that one would expect Tribe to show. They seem to be more like what one would expect of a student than of a Tribe. You know, there are those who feel, as do I, that the situation in which Tribe has found himself is, proverbially, between the rock and the hard place. Either he did the bad stuff himself and truly is "personally" to blame for it, or someone else did it for him, which creates its own reasons for blame. It is ironic that one of these poles -- the "he did it by himself" pole -- gives rise to the impression that, if he did do it himself, he doesn’t even seem to have done parts of it in a very sophisticated way.


[42.] In the current situation, then, members of the public cannot know whether parts of Tribe’s book were ghostwritten or not. Tribe could do much to rid himself of the suspicion if he were to make two interrelated statements, interrelated statements very similar to the two that Ogletree declined to make. The two statements are:
1. Except for normal word changes made by others in the editing process, I personally wrote every word of the first and all subsequent drafts of my book.

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

[43.] If Tribe were to make these two statements, most of us likely would accept them as true. That would be the end of the matter unless former assistants denied the statements’ accuracy -- which one doubts would occur because one still has faith that Tribe would not make the statements if they were not true (and would not risk his statements being denied by someone who ghostwrote the book if it were ghostwritten). But to display my own bias about what seems to have been going on in academia generally, and at the Harvard Law School in particular, this writer is somewhat dubious that Tribe can make the suggested statements. However, one hopes very much to be wrong about this. One hopes very much that Tribe can and will make the statements.


[44.] Of course, Tribe has said he will not comment further on the matter. So he can always say that he will make no statement because of this. (Now you can see why it was previously said that his declination to comment further could prove a wonderful escape.) But refusing to make the two statements because of the prior announcement of no future comments would be just a dodge -- like Ogletree’s reaction to the possibility of making similar statements. If Tribe can make the statements truthfully, he should make them to put the whole matter at rest.


[45.] Let me say, however, that it will not be this writer who asks Tribe to make the statements. He has said he won’t comment further, and this blogger will not chase after him, so to speak, to ask him to make them. One imagines he is likely to learn of the suggested statements in other ways, and, if so, he can decide whether to make them (assuming he can make them truthfully). And if he were not to hear of them in other ways, well, so be it.

* * * * *


[46.] Now let us turn to the question of "so what?" So what if parts of Tribe’s book were ghostwritten for him? This is a subject that has been dealt with in other posts, but some relevant points will be repeated because of what one person, at least, thinks to be their importance. Having others ghostwrite portions of a book, without explicitly crediting them with some form of coauthorship, but instead putting your own name and your’s alone on the book as author, is a form of plain dishonesty and a form of intellectual theft. It is dishonest because it attempts (usually successfully, one gathers) to mislead people into thinking a work is yours and yours alone. It is intellectual theft, because you have stolen, misappropriated, call-it-what-you-will the other person’s work, inevitably doing so to benefit yourself. It is also psychologically unfair to the other person because she is being denied the credit for her work -- while you are instead stealing that credit for yourself.


[47.] Now this blogger knows, and it has been extensively discussed and criticized here, that this type of intellectual theft is rampant, is to a large extent the current way of the world. Judges put their own names to work written by their clerks, government officials put their names to work written by underlings, politicians and businessmen put their names to documents written by and claim authorship of speeches written by flacks, subordinates and speech writers. And now it seems, judging by outpourings of complaints and criticisms catalyzed by the Ogletree and Tribe matters, this dishonesty, this moral crookedness, has invaded the academic world as well, big time.


[48.] But dishonesty is dishonesty, even if everyone is doing it. It should stop, or be stopped, wherever possible. This is the more true because, as has extensively been discussed here previously, dishonesty in all its forms, from outright lies to spin to withholding information so people will not know the truth, is the fundamental problem leading to the other problems we face, including, by the way, the problem of lack of competent action. Absent a sea change in culture -- which, even if possible, cannot occur quickly -- it is unlikely that most of the current dishonesty can be stopped, including the dishonesty of using ghostwriters. Judges aren’t going to stop using clerks’ work, politicians ditto regarding the work of their subordinates and flacks, and so forth. But it can be stopped, or dramatically reduced, in academia, where the coin of the realm is (at least supposedly) not money, but intelligence, creativity, logic, depth, and analysis, and where a person’s name on her work has long been taken as a sign, in regard to this coin of the realm, that the work is indeed her work, her creativity, her analysis.


[49.] It can be stopped in academia by a simple expedient: by punishing -- and not lightly either -- those who engage in this theft, in this misappropriation, of coin of the realm, and who inevitably do so, of course, for their own personal benefit in enhanced coin of the realm. In business, where the coin of the realm is money and property, you steal from someone when you take his money or property, inevitably doing so to increase your own coin of the realm. In academia, where the coin of the realm is intelligence, creativity, expression, etc., you steal from someone by using his words or ideas without attribution, inevitably doing so to increase your own coin of the realm. In business the theft is stopped by being, and only when it is, punished. It can and should also be stopped in academia by being punished. And I feel confident in this connection in telling you this: Anyone who engaged in such theft of academic coin of the realm at our law school, and who was caught, could expect to find himself out on his you know what in short order. But, then, we’re not Harvard.


[50.] In view of the critical nature of honesty and integrity in writings by academics, it obviously is necessary that this crucial necessity be upheld by punishing someone for doing what Larry Tribe has done, be it "mere" plagiarism and copycatting or, worse in some people’s minds, having parts of a book ghostwritten for him. This is at least as important at Harvard as elsewhere. Indeed, for several reasons, maybe it is even more important at Harvard. One cannot avoid the fact that much of the rest of the academic world looks to Harvard for leadership, and has done so for decades. As Harvard goes, so goes, ultimately, much of the rest of academia, one might say. And Harvard currently is setting a horrible example. (Recently, I note, in preparing a one hour television interview program for Dr. Jerome Kassirer’s On The Take, which decries the commercialization and current money grubbing which has arisen in medicine because of the humongous marketing and pseudo bribery engaged in by big pharmaceutical companies, I read the opinion that it was a multimillion dollar deal between Harvard and Monsanto in 1974 which made it alright for other medical centers to take money, great gobs of it, from big pharmaceutical companies, with results that are sometimes quite bad. This is one very consequential example of how Harvard often sets the standard, which then is followed by others.)


[51.] That Harvard is setting a very bad example, with all too much of the bad stuff centered in its law school, is all too evident. Recently, law professor Charles Ogletree admitted that in a recent book he plagiarized over 800 words from another book. Worse yet, it is now pretty widely accepted that parts of his book were ghostwritten by student assistants, including the plagiarized portion, a sin that seems almost certain to have occurred but which Ogletree refuses to fess up to, although he also refuses to make the statements that would put the suspicion to rest -- a refusal that further fuels it. Doris Kearns Goodwin, a historian who is a former member of one of Harvard’s governing bodies, has been caught plagiarizing. There have been allegations, although he denies it I believe, that Alan Dershowitz extensively copycatted in a book he wrote defending Israel. A research scientist left Harvard after he was caught having plagiarized on a grant application. And now Tribe has admitted misconduct, misconduct which may go beyond plagiarism and copycatting to ghostwriting. Need one say that this is an utterly horrible record for, and an awful set of examples to have been set by, the nation’s premier university, the university to which many other schools look for academia’s standards?


[52.] Terrible results are the only ones that can flow from this kind of horrible record when several of the guilty, particularly big name celebrities, have gone wholly unpunished or escaped with, at most, a slap on the wrist. (I note that Ogletree claims to have suffered some punishment but will not disclose it (as, presumably, neither will Harvard), and one deeply suspects that Ogletree’s supposed punishment, which the dramatis personae insist on keeping secret, is either nonexistent or minimal. Could it, indeed, be much more than the wrist slap given Tribe, since the admitted sins, and the possibility of the additional sin of ghostwriting, are so similar, even identical?


[53.] The terrible consequences likely to flow are easy to predict. Other people, at Harvard and elsewhere, are likely to increasingly plagiarize, copycat, and even have stuff ghostwritten for them -- a phenomenon that already seems to be a horrid plague in graduate education from what I read in the press and from what has been emailed to me by persons whose names I know but who do not wish to be identified publicly. Why wouldn’t ghostwriting increase? After all, people will say that it is done at Harvard by very eminent people -- people whose eminence, it must bluntly be said, often stems not just from their work, but also, and perhaps even equally, from years of successfully chasing after the media in order to become celebrities. Since it is done by eminences at Harvard with no more than a meaningless slap on the wrist if they get caught, one might think "Why shouldn’t I do it too? If caught, I will say that it is wrong to do more than slap me on the wrist, since that is all that happens at the country’s premier university. I can only benefit in the overall, since plagiarism, copycatting and ghostwriting, especially when combined with chasing after the press, will make me too a big, or at least a bigger, name, with a (much) larger salary, speaking engagements, appearances at conferences, offers from other schools, lots of assistants, and so forth. On balance, it is well worth it, for on the one side lies fame and fortune, and on the other lies only a slap on the wrist. And, especially if I can hide my misdeeds for years (as seems usually to occur), and in the meanwhile have become a big deal, I am virtually assured of suffering nothing other than a minor slap on the wrist if and when I am finally caught."


[54.] None of this, by the way, is any different from what has gone on for years in business and the professions, and in many ways is still going on there though a few of the major moral and ethical crooks involved in our recent big business scandals are now facing jail because some people have finally got fed up with the crookedness. When the only thing that happens to big business violators of antitrust, environmental, tax and other laws is that companies pay fines that are only drop in the bucket to them, these fines are nothing but a cost of doing business, a small cost paid for making huge profits. It is only gargantuan financial penalties, and the prospect of jail for individuals, that brings people up short before they do very bad things. I should add that this is true of our government leaders too; there it is the certainty that there will be no legal penalty of any type that causes the Johnsons and Kissingers and Rusks and McNamaras and Bush IIs and Cheneys and Rumsfelds to engage willy nilly in killing people by the gross regardless of decency, morality and good sense. Academia is no different, because academics are little better, even if they like to think of themselves as the salt of the earth. Like the businessmen and the political leaders, they will do what gains them fame and professional fortune if the only punishments possibly lying in store are mere slaps on the wrist.


[55.] There are at least two other very bad results stemming from the lack of punishment at Harvard. One is that students at Harvard are and certainly should be incensed. The Tribe and Ogletree matters have catalyzed bitter complaints from Harvard students that the university employs a double standard. As the critics say, students are punished for and can be quickly thrown out on their you know whats if they plagiarize or fail to cite or have others write their papers for them. (I have seen no denials of this from the Harvard administration.) But professors, especially big name ones, can do these things and readily get away with them, can do these things and suffer nothing more than a mild wrist slap. The students have every right to be incensed over this gross double standard. They in fact ought to raise hell peacefully about it: a constant barrage of letters, emails, statements -- even peaceful picketing directed against administration culprits -- would not be out of line. (If I am accused of fomenting peaceful unrest at Harvard, my answer is that not only is it unlikely in the extreme that Harvard students would act because of this blogger’s views, but also that it is better to have critical emails, letters, talks and peaceful picketing than to have dishonesty and what in effect is unpunished professional cheating.)


[56.] There also is the effect on the Harvard faculty, especially the law faculty. Since it is now known that Harvard professors have plagiarized, copycatted, and pretty certainly have had stuff ghostwritten for them, the bona fides and reputations of nearly everyone at Harvard is called into question, especially people in the law school. After all, how can we know that any particular professor at Harvard hasn’t done these things, especially given the vast number of student assistants at Harvard, and especially in the law school? And given the wrist slap nature of penalties, especially when celebrified big deals are involved, how do we know it won’t be done again and again in the future, again especially because of the numbers of student assistants at Harvard and especially in the law school. It is hard to believe, one certainly does not want to believe, that plagiarism, copycatting and ghostwriting have become common at Harvard, in the law school or in any other school. But the number of cases already uncovered in Cambridge, and the weak nature of the response to them, has to make one wonder -- it has to make one wonder, in particular, whether there was only a wrist slap because ghostwriting by students assistants -- with associated dangers of copycatting and (as Dershowitz said) of plagiarism -- is well accepted at Harvard. The minor, if any, penalties imposed upon the culpable have inevitably put a cloud over everyone at Harvard, including the innocent, because it is impossible to know who is innocent and who is guilty. Frankly speaking, all the innocent faculty members at Harvard should be as incensed as the student body at the weak-kneed response of the Harvard administration to the Tribe and Ogletree transgressions. For the innocent too are under a cloud now.


[57.] One other point about this cloud. Does it extend to Derek Bok? Bok, as said, is the former Dean of the Law School and was long the President of the University. As well, somewhat ironically, as we shall see, his wife, Sissela, wrote a highly regarded book about lying and honesty a few decades ago. Bok was asked to be one of those conducting an investigation into both the Ogletree affair and the Tribe affair. In the Ogletree case, Bok said, after investigating, that there was no intentional wrongdoing. Here is what he told The Boston Globe about the matter, as described in this writer’s blog dated September 10, 2004:
Bok, however, told The Globe that "There was no deliberate wrongdoing at all." Rather, "It was a case of publishers insisting on a tight deadline" in order to get the book out in time for the anniversary of Brown. Facing a deadline, Bok said, Ogletree "marshaled his assistants and parceled out the work and in the process some quotation marks got lost."

[58.] In the Tribe matter, according to the S/KS, Bok and his two colleagues were asked "to inquire into the circumstances by reviewing the materials and speaking with the individuals principally involved. They in turn reported their factual findings to us." Presumably on the basis of these "factual findings," Summers and Kagan said they are "firmly convinced that the error was the product of inadvertence rather than intentionality." In his own statement Tribe said, "I am gratified that the University’s inquiry found no basis for accusations of dishonesty or of intellectual theft. (Emphasis added.) Presumably the "University’s inquiry" includes the investigation by Bok and two others.


[59.] All of which raises a question about Bok. He explicitly said, after investigating the Ogletree matter, that there was "no deliberate wrongdoing at all." Yet it seems nearly a certainty that parts of Ogletree’s book were ghostwritten. After he investigated the Tribe matter, Summers and Kagan said, on the basis of his group’s publicly-undisclosed report, that the mistake was a matter of inadvertence, and Tribe appears to have implicitly confirmed that the (non-disclosed) report finds him not to have been dishonest or guilty of "intellectual theft." Yet, as said before, it is now widely accepted that parts of Ogletree’s book were ghostwritten, there is suspicion and even accusations, which have to be taken seriously, that parts of Tribe’s book were ghostwritten, and it is obvious that if the investigations conducted by Bok and his colleagues were competent (as one presumes and at least hopes), then Bok must know whether there were ghostwriters. So if there was ghostwriting, as seems certain in one case and probable in the other, but in both cases Bok nonetheless found no deliberate wrongdoing, wouldn’t that necessarily mean that Bok, and presumably also his investigating colleagues (who include another former Harvard Law Dean, Robert Clark, in the Ogletree matter), accept ghostwriting as perfectly proper? As not being wrongdoing or dishonest? It seems to this writer that the answer to these questions can only be affirmative. And if the answer is affirmative, doesn’t that lead to the additional question of who has written Bok's books? Did he write them entirely by himself? Or did he have assistants ghostwrite parts of them?


[60.] The short of it is that the results of the two investigations have very obviously put Bok himself under something of a cloud as conceivably being a ghostwritee, if I may put it that way. And the same can also be said, unfortunately, and for the same reasons, about the other investigators, Verba, Knowles and Clark.

* * * * *


[61.] Now let us turn at long last to Larry Summers and then Elena Kagan. This blogger feels, as made clear early on, that neither of them is fit to run their institutions. This feeling has been slowly germinating for awhile, and the non-punishment in the Tribe matter (particularly on top of what appears to also be non-punishment in the Ogletree matter) is the last straw.


[62.] My own view about Summers began to crystallize when it became obvious, in the last month or two of 2004, that there would be little if any punishment meted out for the Ogletree and Tribe transgressions, and that Summers was not even going to announce whether a disciplinary committee was looking into these matters. In other words, my own views about Summers began to crystallize when it became obvious that Ogletree and Tribe were going to get away with dishonesty because they were big shot, celebrified law professors. Not being at Harvard, this writer was only dimly, if at all, aware at the time of the claims of extensive bullying by Summers, of control-freakism by him, of manipulation and dishonesty, of secretiveness, of the Alston imbroglio, etc., (this writer was unaware, that is, of claims that in effect hold that Summers has brought a Washington-type spin and control machine to Cambridge). Nor was this writer more than passingly aware of the claims made about Summers’ alleged antipathy to female professors. One did know, of course, of the Cornell West matter.


[63.] So it was the Ogletree and Tribe matters that initially got this writer to thinking about Summers. Then, when Summers later made his comments about women in science and mathematics, this writer, after many others had denounced Summers’ fallacies about women’s supposed lack of ability, wrote a lengthy blog dealing with other aspects of his infamous talk and with other aspects of his life and character. That blog criticized the multiple fallacies in his talk’s introduction, where he said we shouldn’t be judgmental about the paucity of women in science and mathematics since there are few Jews in farming, few whites in the NBA, and few Catholics in investment banking. The blog also discussed that Summers appears oblivious to the truly remarkable cultural advantages he had in the field of economics, just as he appeared oblivious to the cultural disadvantages imposed on women in science and mathematics. And, as had Stanley Fish, this writer said that, far from being the genius he is generally portrayed as being, in several respects Summers instead appears to be very unintelligent (to use a mild word). Almost no one else has been willing to say this publicly, even if there possibly are those who think it.


[64.] So my view of Summers began going south near the end of 2004 and hit near-bottom with the female professor nonsense. Now, after the result in the Tribe case, it has hit bottom. This guy should, in this writer’s view, either leave or be fired, and one wonders how a faculty and a student body to which he is an embarrassment, with one faculty body already having voted no confidence in him, can do anything other than explicitly call for his departure now that he has let institutional integrity go by the board (in favor of celebrified big deals. Of course, he is a celebrified big deal too.)


[65.] Let us briefly "review the bidding," so to speak, on the Tribe and Ogletree matters alone, never mind the other problems caused by Summers. By not punishing these professors, Summers has downgraded honesty and integrity at the nation’s leading academic institution. He has caused respect for honesty and integrity to take another hit in a country where they already are held too cheaply. He has caused our leading university to set a horrible example for all other schools that look to Harvard for leadership and for professors at all those schools. He has promoted a double standard for students and faculty. He has caused doubt to be cast on almost all members of the Harvard faculty. He has put forth justifications that are largely hokum.


[66.] Is this what Harvard wants in a leader? Is this even what is wanted in a leader by the Harvard Corporation, which governs the University and seems to love Summers? I can tell you that it would not be wanted at our little law school or by our Board of Trustees. But, as said earlier, we’re not Harvard.


* * * * *


[67.] Finally, there is Elena Kagan, who has been Dean of the Harvard Law School since 200[3]. This relatively new Dean unfortunately got caught by a bad situation -- by the Ogletree and Tribe matters, and by the Jack Goldsmith matter. But unhappily caught or not, she apparently has gone along with non-punishment of Tribe, and she joined Summers in his whitewashing statement about Tribe. She has also gone alone with what appears almost surely to be the defacto (and undisclosed) non-punishment of Ogletree. She has gone along with the hiring and retention of Jack Goldsmith, who apparently played a role and, after publication of The Torture Papers, more than ever seems to have played a role, in the American government’s abominable renditions to other countries for purposes of torture, and who refuses to talk about this matter. As discussed here in a blog of December 15th, she was said by The Boston Globe to have defended Goldsmith’s presence at Harvard by telling it, and as far as I know she has never denied that she defended his presence in Cambridge by telling it, that he "‘puts issues on the table that everyone focuses on and debates’" (yeah -- like renditions), that he is "‘a very agenda-setting scholar, and that’s exactly the kind of exciting scholarship that we want to have here’" (he certainly seems to have helped put renditions on the agenda), and that she is "‘as proud of his appointment as I could be.’" So Dean Kagan has gone along with Summers’ bad-results-producing actions regarding plagiarism, copycatting and ghostwriting, and, to boot, is very proud of hiring a teacher who seems to have played a fairly important role in the American government’s abominable and grossly illegal renditions. (Goldsmith’s role is described here pretty fully in the blog of December 15th.) All of this seems no more praiseworthy than Summers’ actions, and perhaps, in some respects, worse, because torture is involved. So, in my view, Kagan too should go, just like Summers.*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

posted by Lawrence R. Velvel at 12:12 PM [4/22/05]