Our e-mail exchange with "Professor A"

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

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

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

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

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

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

AuthorSkeptics



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

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



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

Professor ["A"]:

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

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

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

Sincerely,

"Skipper"



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

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

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

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

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

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

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



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

Professor ["A"]:

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

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

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

Sincerely,

Skipper




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

Professor ["A"]:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

31. The suggestion in your question that the use of RAs to fill out peripheral citations is acceptable, and our view that this involves “ghostwriting” but does not seem objectionable (although scholars should disclose it) is reinforced by an e-mail we received from another prominent constitutional law scholar a few days after receiving your e-mail, which we plan to feature in a future post. In his e-mail this scholar stated: “My practice is that anything that appears under my name alone has been written by me entirely, with the following exception: I sometimes ask a student assistant to provide me the proper cite to a case, or to turn my cites into blue book form. I do not view a somewhat more expansive use of assistance -- ‘please find some cases which say X and write up a footnote on them’ -- as improper ghostwriting, although that is not my practice, not for ethical reasons but because of the nature of my work, and my habits of writing.” Specifically corroborating your point about the use of RAs to comply with sometimes “insane” student-imposed citation conventions, this scholar also stated: “It may be proper to make greater use than I do of student assistance in creating the sometimes absurd citation apparatus which current convention demands.”

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

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

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

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

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

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

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

Sincerely,

AuthorSkeptics


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

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

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

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

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

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

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



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

Dear Professor [“A”]:

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

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

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

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

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

* * *

Sincerely,

Skipper

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