Dean Fish on President Summers

Of possible relevance to Dean Velvel's recent post calling for the ouster of Harvard president Lawrence Summers for “downgrad[ing] honesty and integrity at the nation’s leading academic institution,” casting doubt on “almost all members of the Harvard faculty,” and setting “a horrible example for all other schools that look to Harvard for leadership” is an article in the May 13, 2005, issue of the Chronicle of Higher Education which can be found here (subscription required) and also here.

The article is by esteemed scholar and former university administrator Stanley Fish (for an extensive website on his work, see here). Alert readers of this blog know this is Dean Fish's second major article on President Summers. In the February 23, 2005, issue of the Chronicle, Dean Fish published an article entitled, "Clueless in Academe," which we regard as supportive of Dean Velvel's view of President Summers, and to which we therefore linked in our annotated version of Dean Velvel's post, here (paragraph 63). Dean Fish and Dean Velvel are perhaps the two most vocal academic critics of President Summers outside of Harvard.

This article is entitled, "Chickens: The Ward Churchill and Larry Summers Story." It sets forth a detailed comparison of the recent controversies which have consumed both Professor Churchill and President Summers. Dean Fish is, if anything, even more critical of President Summers than in his earlier article: Summers is "a public-relations disaster, a walking time bomb likely to detonate at any moment, especially if his handlers let him out of their sight."

Here is an excerpt from the article with some of Dean Fish's comments about President Summers.

[T]here is really not much to say about Summers except that he's a public-relations disaster, a walking time bomb likely to detonate at any moment, especially if his handlers let him out of their sight. One can say something about what issues the Summers brouhaha does not raise. It does not raise issues of free speech or academic freedom.

* * *

To be sure, some on the left do want Summers fired because of the content of what he said, while some on the right want him retained (and celebrated) because of the content of what he said. Both sides, then, want, in different ways and for different reasons, to make Summers into a First Amendment martyr and turn this incident into a First Amendment test. But the content of what Summers said is irrelevant to the only question that should be asked: Is he discharging the duties and obligations of his office in a way that protects the reputation of the university and fosters its academic, political, and financial health? There is good reason to answer no, an answer that would flow not from the fact that Summers said this or that about women in science, but from the fact that, whatever he said, he said it in a way that brought Harvard weeks, and now months, of hostile publicity, led some alumni to announce that they would never give a penny to the institution, probably led many senior female scientists to cross Harvard off their lists, and gave late-night comedians and independent pundits like me a new target. That's not exactly what you want on the résumé of your chief executive officer.

Defenders of Summers usually take two (related) tacks. They say, first, that he is an intellectual pathbreaker, and that (I quote from a particularly smarmy and pious editorial in the Chicago Tribune) his "comments were in the best tradition of free intellectual inquiry." Not unless the best traditions of intellectual inquiry include opening up your big mouth to pronounce publicly on matters far from your area of expertise. Richard A. Posner, the conservative jurist and law professor and sometime Harvard University Press author, points out (on his blog) that, since Summers has no credentials in the history of science or the field of gender discrimination, the odds of his contributing anything valuable to the discussion of women and science were low, while, on the other hand, the odds that he would misstep in some way were high. On a cost/benefit analysis, then, speaking up as he did was a bad idea.

The second line of defense begins by acknowledging that Summers wasn't exactly on familiar ground and was talking off the top of his head (with a little help from some members of his faculty), but contrives to make his ignorance a virtue: He wasn't offering scholarship or long-considered arguments; he was keeping the pot boiling; he was adding to the liveliness of the occasion; he was being (and this is the word Summers himself has used in his many apologies) "provocative." But being provocative is not in the job description; being provocative may be a qualification for a classroom teacher, or the host of a talk-radio show, or a backbencher in Parliament, but it is hardly first on the list of the qualities you look for when interviewing candidates for the presidency of a university.

That does not mean that presidents of universities should never be provocative, just that when a president is so, it should be with a strong understanding of the consequences for the institution that he or she leads. If Summers wants to live the life of a provocateur, he should get out of senior administration and into something else. Please don't misunderstand me. I'm not counseling timidity or advising administrators to be invisible. I'm just advising them to keep in mind always what their jobs are and what hangs on those jobs. It is there -- and not because of the content of what he said -- that Summers falls down.

It is not the first time. From the early days of his tenure as president, Summers has been making the wrong kind of headlines; wrong not because of his views, but because of the lack of tact with which he has announced and deployed them. One of those he bumped up against in a flap, whose reverberations have not yet subsided, was Cornel West, then at Harvard, now at Princeton University. The events of the past months gave West the delicious opportunity to speak more in sorrow than in anger. "I was praying for the brother, hoping he would change," West said, but then added, "It's clear he hasn't changed." Still and all, West acknowledged, there's a bright side to look on, for it's "good to see the faculty wake up." I guess, West concluded, "the chickens have come home to roost."

Man, those chickens are working overtime these days.

More from "AuthorSkeptics" on our anonymity

Last week, a day after mentioning in our post commenting on Dean Carrington's statement that "we have little more to say on the subject" of our anonymity (see end of post here, under number 3), we sent an e-mail to Dean Velvel with some further comments on the subject.

Our e-mail was prompted in part by an e-mail from a prominent law professor and blogger, and former Supreme Court clerk, who has corresponded with us on occasion since last September. Commenting on Dean Carrington's comments and our response, this professor expressed what we judged to be genuine confusion on the topic: "Without knowing you you are, it's hard to understand why you care; and without understanding why you care, it's hard to make much sense of your perspective."

Because we regard this professor as probably much more able than any of us and viewed this e-mail as quite sincere, it occurred to us that perhaps we had been insufficiently clear in sketching last September something of what motivated our decision to be anonymous. We similarly detected in Dean Velvel's comments on our post that possibly even he, despite following our blog fairly closely, lacked a full appreciation of what we were getting at in our post last September about our anonymity, consisting of our e-mail exchange with Professor Bruce Jackson.

We therefore sent Dean Velvel the below e-mail further addressing our anonymity, which we are now posting for whatever interest it may have for others, although we hold to our view that it is the content of our blog that matters, not who we are or why we are blogging. Those who remain concerned about our anonymity are always free to discount, even ignore, the content of our blog on that account if they deem it appropriate.

"AuthorSkeptics"



Date: Fri, 6 May 2005 6:21 PM
From : "AuthorSkeptics"
To : Velvel@MSLaw.edu
Subject: AuthorSkeptics -- anonymity

Dean Velvel:

On rereading your latest blog post, and after receiving an e-mail from a law professor we respect who expressed puzzlement as to what could have prompted our decision to blog anonymously, it occurs to us that even you may not have picked up on something we thought was fairly apparent from our post last September regarding our anonymity.

You talk about reasons we might want to be anonymous as far as making criticisms of Professor Tribe, who of course is the main Harvard figure now in the news (along with the Harvard administrators who handled the matter involving him). However, our decision to be anonymous predated by weeks any involvement of Professor Tribe as a subject of debate over plagiarism at Harvard. Our e-mails on plagiarism at Harvard (before we set up the blog) first went out in early September 2004. See here.

Although in our e-mails and later in our blog we discussed two prior plagiarism matters which in our view suggested a lack of concern by the Harvard administration about plagiarism by Harvard scholars, the overwhelming concern of our e-mail and our blog was the Ogletree matter and what we saw as the whitewashing of it through Washington-style spin techniques which we believe have no place in an academic setting where truth and candor should be the watchwords.

We thought we’d keep tabs on and publicize the Ogletree matter for a few weeks, hopefully have some impact, but then naturally interest in the subject would die away, and there wouldn’t be much more for us to do on the issue. Only the emergence of the matter involving Professor Tribe, and the handling of that matter by the Harvard administration (to delay for months, and then say little about it except for ambiguous mention of “inadvertence”), led to the mushrooming of interest in the Harvard plagiarism stories, both on our part and on the part of others. Your November e-mail exchange with Professor Ogletree, and his response to your e-mails, was quite important in keeping these issues alive, in our view, as of course was your lengthy post on Summers, Kagan, and Tribe.

If you keep in mind the context of our decision to be anonymous, and carefully look back at what we said last September in response to Professor Bruce Jackson in hinting at logical reasons why people in our position might choose anonymity, we think you and others will see what we were getting at, although only indirectly, without being unnecessarily explicit. If readers take care to actually read the stories we linked to, we think they will get the gist of it, although we will continue to refrain from spelling out more explicitly the precise concerns we had in this context about blogging under our own names. We think Professor Jackson read the links and understood what we were getting at, and on that basis concluded what we were doing was ethically acceptable. We hardly see why it would necessary, or how it would be socially responsible, to be more explicit about what we were referencing. Perhaps we were a bit too cryptic about the concerns we sketched, but we think it’s best to err on the side of saying less rather than more.

Ultimately we think what matters is the substance of what we are saying, and not who we are, but we hope this reminder that our anonymity dates back to early last September when the Ogletree matter was first unfolding may be instructive in helping orient some readers including, quite possibly, you.

We will likely post this e-mail at some point, as early as Monday. Since it concerns your post, we will give you an opportunity to respond via an e-mail to be placed on our blog if you wish, if you find this e-mail worthy of comment but do not want to address it on your blog.

Sincerely,

“AuthorSkeptics”

[Note: as of May 13, we have received no comments on this e-mail from Dean Velvel, although we do not see it necessitates any comment from him.]

Statement by Professor Abraham Regarding Tribe's Plagiarism of His Work

Dean Velvel has posted a brief statement by Professor Abraham which you can read here.

Of particular interest is Professor Abraham's comment on Harvard's finding that Professor Tribe committed no intentional wrongdoing:   "categorization of Prof. Tribe’s actions as 'inadvertent' or 'unintentional' causes one to wonder how multiple instances of using someone else’s work can be appropriately classified as 'inadvertent' or 'unintentional.'"

Weekly Standard on Professor Tribe: "Guilty as Charged"

The Weekly Standard, in its issue dated May 9, 2005, has a brief update on the plagiarism story about Professor Tribe it broke last September (for our initial reports on that, see here and here), entitled: "Ill-behaved senators and Laurence Tribe."

It is available online here. Because the item is so short, we will simply reprint it here for the convenience of our readers:

Laurence Tribe Postscript

We neglected to note last week that Harvard president Larry Summers and law school dean Elena Kagan finally released the official findings of their investigation into the plagiarism charges against their distinguished colleague Laurence Tribe, first aired in these pages by Joseph Bottum. Guilty as charged. For more, much more, on the nuances of their report, visit the "Harvard Plagiarism Archive" at authorskeptics.blogspot.com.

By "guilty as charged," we assume The Weekly Standard is referencing the detailed analysis by Mr. Bottum of passage after passage of Professor Tribe's book obviously copied by someone straight out of Professor Abraham's book, with some minor rewording apparently reflecting an effort to obscure the plagiarism involved. To the best of our knowledge, neither Professor Tribe nor anyone else has defended as proper the copying of even one of the passages involved, or has tried to explain the similarities between the books as the result of anything but a process of copying straight from Professor Abraham's book. So in this respect, "guilty as charged" seems an apt observation.

As Dean Velvel has suggested, and as we have asserted even more directly than he, we do not think Harvard has concluded Professor Tribe is "guilty as charged" of personally doing this copying from Professor Abraham's book.We think Harvard's finding that Professor Tribe was guilty only of "inadvertence" is tenable only on the view that Professor Tribe's defense was, "my ghostwriter did it."

The problem with this basis for finding Professor Tribe did not intentionally do anything wrong is that it dumbs down academic standards of integrity and honesty. As Dean Velvel has persuasively argued, Harvard's finding that no deliberate wrongdoing was involved therefore must mean (assuming much of the book was written for Professor Tribe by a ghostwriter, something he has not denied since the the Weekly Standard story, and which he could easily deny if it were not true) that Harvard's top officials see no deliberate wrongdoing in a professor making undisclosed use of students to write her or her books or articles. As Dean Velvel suggests, this, in turn, suggests that the Harvard officials who made this finding themselves have used ghostwriters in their own work.

Recently the Weekly Standard also had a brief mention of the Harvard Law School student parody of Professor Tribe which we blogged about here. We have some additional information about the parody and other topics which we will try to blog about later in May.

Dean Velvel on Dean Carrington

Dean Velvel has posted comments regarding Dean Carrington’s statement, on his blog here.

We appreciate Dean Velvel’s support of our effort, but wish to make clear we had no prior notice of the content of his post, although we did encourage comments from him. The relevant portions of our e-mails to him, to which he was responding, are reprinted below

Because so much of Dean Velvel’s post addresses us, and Dean Carrington’s comments about us, we will leave it to readers to evaluate the posts and send us comments for posting if they wish.

We feel it important to add, however, that although we are in agreement with a number of Dean Velvel’s comments about Dean Carrington’s statement, we have genuine respect for Dean Carrington as a legal scholar and leading figure in the legal academy, we were honored he was willing to take the time to comment on our blog, and we do not take personally his criticisms of our anonymity and we understand and respect his negative view of it.

Even readers who find themselves agreeing with Dean Velvel’s criticisms, we believe, should credit Dean Carrington for being willing to comment publicly on the matters addressed by our blog. Dean Carrington was only the third law professor to contact us with a comment. (We posted Dean Carrington’s statement first because he is likely viewed as the most established of the three very prominent law professors who wrote us; we will do our best to post comments from the other two professors in the coming days, and we hope more professors will write us).

A proper concern for free and open dialogue requires that one have respect for those with opposing views who make the effort to debate important issues rather than take the easier step of avoiding debate entirely. So we believe Dean Carrington deserves great credit for stepping forward to address these issues and to offer comments which we believe make a substantial contribution to the debate, even though we do not agree with him on some points.

Here are our two e-mails to Dean Velvel. We did not hear back from him prior to his post.


Date: Thu, 5 May 2005 1:09 PM
From : "AuthorSkeptics" (author_skeptics@allmail.net)
To : Velvel@MSLaw.edu
Subject: Harvard plagiarism -- our upcoming blog post on Dean Carrington

Dear Dean Velvel:

Excellent post on torture and "why blogther" (good pun). Ultimately far more important, of course, than what we're trying to do in our small corner of the world concerning plagiarism. . . .

About 4 p.m. we expect to post a statement from Dean Carrington, and commentary from us, which concerns in part your comments. . . . Of course, we would welcome any comments on the substance of this post, either for reprinting on our blog or not, as you wish.



Date: Thu, 5 May 2005 4:49 PM
From : "AuthorSkeptics" (author_skeptics@allmail.net)
To : Velvel@MSLaw.edu
Subject: Post on Dean Carrington

We have now posted on Dean Carrington: http://authorskeptics.blogspot.com.

AS

Statement from Dean Carrington of Duke

We have received a thoughtful and revealing statement from Paul D. Carrington of Duke Law School, dean of the school for a decade (1978-88), addressing some of the issues which have been addressed by Judge Posner, Dean Velvel, and us, among others, and also raising new points. It is reprinted below.

Over his long career Dean Carrington has with unusual clarity and candor written about and participated in a wide range of legal areas. As background for those not fully familiar with his career, we recommend his personal website which can be found here.

Of particular relevance to this blog relating to academic standards at Harvard, Dean Carrington is a 1955 graduate of Harvard Law School, and his family connection to the school runs deep: both his father and the husband of his mother's sister (the legendary legal scholar Dean Charles T. McCormick of the University of Texas) also attended Harvard Law School. We strongly recommend the interview of Dean Carrington conducted as part of the Harvard Law School oral history project, which can be found here. In a future post we will likely mention Dean Carrington's comments about the leadership style of Dean Griswold, as we believe Dean Griswold's example may provide a benchmark for assessing the current leadership at Harvard Law School on matters of academic integrity.

As to the statement Dean Carrington e-mailed us for posting on this blog set forth below, particularly revealing, we think, is his first paragraph which suggests that, contrary to the assumption underlying Judge Posner’s recent post, the undisclosed use of ghostwriters may be a phenomenon found in American legal scholarship stretching back decades, at least among some scholars.

Rather than comment on each point made by Dean Carrington, we encourage comments from readers on any points of particular interest. We will reprint any comments from readers in future updates to this post, so they will appear below.

We thank Dean Carrington for taking time out of his busy schedule to address these matters, and we look forward to comments from readers on his statement.

Paul D. Carrington
Duke University School of Law
May 4, 2005

To AuthorSkeptics:

The failure of scholars to welcome co-authorships has long puzzled me, in part because it has seemed to me virtually costless to a named author to share authorship. My impression is that legal treatises are more often than not group work. Forty years or so ago, I was told by a very luminous legal scholar that chapters of his then recent book had been written by persons who have since achieved distinction on their own, but whose roles were not noticed in the publication. I was once offered and declined an invitation by a major publisher to put my name on a volume to be written in-house in exchange for a significant cash payment. They had no trouble getting other names more elegant than mine on their works. And I have been told by eminent scholars that they thought themselves entitled to full credit for having an idea and for taking full responsibility for any error slipping through their supervision.

But it is also my impression, based on conversations with former law clerks, that it is not uncommon for United States Circuit Judges or Supreme Court Justices to delegate much and on occasion all of their responsibility to a law clerk. I imagine that at least some of the authors whom Dean Velvel or others may complain about were once law clerks whose work appears in the Federal or even the U.S. Reports. And it is also my impression that partners in major law firms have slight constraint about presenting to their clients work that has been done by others.

Maybe we do need to find a way to establish a standard for dealing with the problem in all these contexts. It is not a problem known only to the academy. And meanwhile, Dean Velvel's demand for dismissal of those who may have transgressed an illusionary line seems to me quite out of order.

I must add an expression of my reactions to the anonymity of the “AuthorSkeptics.” I have on occasion used a pen name for the purpose of disclosing that my remarks were not entirely serious. I realize that the device was in common usage in the 18th century. But Alexander Hamilton lived in a much more troubled time; he could have been arrested for his utterances. That is surely not the case for this blog. In this circumstance, I find anonymity to be an exhibition of moral cowardice. This is a trait that is singularly unbecoming to lawyers. As between one who presents the work of others as his own and another who takes no responsibility for his utterances, I see no basis for choice.

Paul D. Carrington

paulcarrington.com, or
Box 90362, Durham, North Carolina 27708-0362
Tel.: 919-613-7040; Fax: 919:613-7231
e-mail: pdc@law.duke.edu

Here are our three comments on Dean Carrington’s statement.


1. Ghostwriting of federal judicial opinions. As we will be elaborating on in a separate post responding to an e-mail from another law professor, we concur with Dean Carrington’s comments on the ghostwriting of federal judicial opinions. It seems very well accepted that most federal appellate opinions are largely ghostwritten for judges and justices by their law clerks, and this apparently has been a common practice for some time. Recently this practice has been in the news due to analysis by at least one biographer of Justice Harry A. Blackmun.

We did some digging and it turns out Dean Carrington is right about a suggestion he makes in paragraph two of his statement (at least we think this is a fair summary of what he may be getting at): that one or more of the authors who people are complaining about taking credit for the writing of others may have written federal judicial opinions as law clerks for which the judges they worked took credit (so the issue of credit may not be one-sided). For example, Professor Laurence H. Tribe has publicly discussed his role in helping write important U.S. Supreme Court decisions while clerking for Justice Potter Stewart. See:

1986: Laurence H. Tribe, Justice Stewart: A Tale of Two Portraits, 95 Yale L.J. 1328, 1329-30 (1986);
1991: http://volokh.com/archives/archive_2005_03_20-2005_03_26.shtml#1111530233
2003: http://www.legalaffairs.org/howappealing/TribeGreenBagReprint1.pdf (page 295).

Our impression is that other law professors, particularly constitutional law professors who clerked on the U.S. Supreme Court, similarly on occasion discuss their past work in writing opinions, although perhaps not as publicly. Given his recent “Volokh Conspiracy” post on this point, Professor Orin Kerr may well be aware of other similar public statements, and we encourage him to e-mail us about the results of his inquiry, or else make a blog post on the results.

We would welcome comments on the possible relevance of the ghostwriting work many law professors apparently did as law clerks, which Dean Carrington has helpfully noted in this context. Perhaps the practice of law clerks ghostwriting opinions for judges and justices helps explain (if not fully excuse) the use of ghostwriters by some legal academics. After finishing a clerkship spent largely ghostwriting material for a judge, and then joining a law faculty, perhaps at least some legal scholars do not view it as odd, or particularly wrong, to hire students to do the sort of ghostwriting for them which they had recently done for a judge.

We are less confident of the following analysis, but we offer it for what it might be worth, without meaning to undermine our bottom line that the undisclosed use of student ghostwriters by law professors is a serious academic offense. Arguably, providing students with ghostwriting opportunities can be valuable training for students, particularly in helping prepare them to serve as ghostwriters for judges. (We're being serious here, even though it may sound funny.) Indeed, for a professor to hire students to ghostwrite significant amounts of his or her works may give the professor a valuable perspective into which students to recommend for top clerkships. After all, the professor knows that what judges and justices are really looking for is not necessarily the smartest and most learned students, but the students who are fairly smart, fairly learned, and at the same time, capable of ghostwriting judicial opinions on difficult subjects rapidly and with a minimum amount of supervision, which is an ability possessed by only a fraction of smart and well-educated law students. What better way for a professor to identify the best students to recommend for top clerkships than by hiring various students to ghostwrite various parts of his or her publications, and evaluating their work?

We would be interested in hearing from readers about whether law professors' past work experience ghostwriting judicial opinions might be a plausible partial explanation for the use of ghostwriters by legal academics, about whether as a normative matter the use of ghostwriters by judges should be seen as legitimating the use of ghostwriters by law professors, and about other matters which might relate to Dean Carrington's statement or our comments in this post.


2. Dean Velvel’s demand for the dismissal of President Summers and Dean Kagan. Dean Carrington suggests it is “quite out of order” for Dean Lawrence Velvel to demand the “dismissal of those who may have transgressed an illusionary line,” which we take to mean the line Dean Velvel perceives between accepted standards for authoring a work oneself, and the prohibition on using ghostwriters to write part of a work without in some way disclosing the reliance on ghostwriters.

As we will be covering in another post addressing an e-mail from another law professor, we do not see a sharp and distinct dividing line between the precise practices which constitute the permissible “authoring” of a work and the precise practices which constitute the impermissible undisclosed use of “ghostwriters." At least at the margin, we see room for debate about what is and what is not permissible. However, while we respect Dean Carrington’s opinion to the contrary, particularly because he has a great deal of experience in the field which we lack, like Dean Velvel we think the line is real, however indistinct, rather than being entirely illusionary.

The main point we want to make here, however, is to clarify what we see as Dean Velvel’s position. Dean Velvel has never called for the dismissal of those who he believes may have transgressed regarding the use of ghostwriters: Professor Ogletree and Professor Tribe. He has only called for the dismissal of the Harvard administrators who, he believes, have worked to sweep the ghostwriting charges under the rug by not even acknowledging the evidence of the undisclosed use of ghostwriters, much less imposing punishment for it (assuming it exists).

Our impression is that if Harvard administrators take some action to recognize that a scholarly norm has been violated regarding the undisclosed use of student ghostwriters, Dean Velvel would be satisfied with a penalty far short of dismissal of the transgressors, particularly because Dean Velvel has not disputed, to our knowledge, that setting aside the current matters that have landed them in the news, Professor Ogletree and Professor Tribe have a solid record of accomplishment over many years which has earned them a great deal of respect both at Harvard and nationwide. If some readers have a different view of Dean Velvel’s position, or if Dean Velvel would like to address this point, we welcome any and all comments.


3. Our anonymity. Dean Carrington’s comments about our anonymity address a relevant issue, and are eloquently put. We are open to comments, pro and con, on this matter to the extent people are interested. For our earlier discussion of this point in an e-mail exchange with Professor Bruce Jackson, including links to articles documenting that even some tenured professors at Harvard insist on remaining anonymous in making criticisms of the Harvard administration, see here. Our prior defense of our decision to remain anonymous may be unconvincing to many or even most readers, but we have little more to say on the subject, although we respect Dean Carrington’s negative view of our choice and we appreciate his candid criticism. It may be that many readers view us as cowards but, at least at Harvard, it appears we are in good company.

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

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.

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

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."

"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]

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.