Proof That Laurence Tribe Used Ghostwriters on the Second Edition of His Treatise

The June 28 National Review article by Robert VerBruggen (article here), which we've mentioned several times on this blog (principally here and here), basically put the nail in the coffin on Professor Laurence Tribe's efforts to deny what we and Dean Velvel have long contended based on sources who have contacted us with personal knowledge of Tribe's practices, who unfortunately we have not been at liberty to name:  that  Tribe has for years run a ghostwriting mill in which his books and articles (including his career-making constitutional law treatise) have been drafted for him by his current and former students, with Tribe serving mostly as a compiler of material written by others, not as an actual "author" of the works bearing his name.

The evidence marshaled by Mr. VerBruggen (and R.O. Denver) that Tribe used student ghostwriters even on his treatise dealt with the first and third editions of Tribe's treatise.

To summarize, as to the first edition, published in 1978.  It contained many passages copied straight out of the 1976 Law Review, something Tribe obviously would not have done, but which the students working on the Law Review might understandably have done).

As to the third edition, published in 2000.  One section on the Seventh Amendment contained hundreds of words copied straight out of a 1995 Supreme Court pro-plaintiff amicus brief which had been filed by eleven lawyers and law professors (not including Tribe), without any credit being given that brief.  The brief was funded by contingent-fee plaintiffs' lawyers with a huge stake in the then-pending $5 billion Exxon Valdez jury award for plaintiffs, an award which would be much easier to uphold in full if the expansive interpretation of the Seventh Amendment argument in the amicus brief was accepted.  Without any disclosure that the constitutional analysis in the brief had been developed in an advocacy context, and paid for by plaintiffs' lawyers, the material was copied into the third edition of Tribe's treatise by one of the plaintiffs' lawyers who had worked on the brief, who Tribe admitted he had let help "draft" his treatise.  This lawyer's pro-plaintiff bias was so extreme that in 2002 the U.S. Court of Appeals for the Fifth Circuit imposed $71,000 in sanctions against him for filing a plaintiffs' appellate brief which contained "a substantial number of outright falsehoods" in what was "indisputably an act of deliberate misrepresentation."  Nothing about how large chunks of an advocacy brief ended up in Tribe's treatise due to the work of an ethically challenged Tribe ghostwriter was known to readers until Mr. VerBruggen confronted Tribe about the hundreds of words copied from the Amar brief, and Tribe was forced to confront the latest malfunction in his ghostwriting mill. To the contrary:  both in the preface to his treatise and in the Seventh Amendment section itself, Tribe heralded his Seventh Amendment analysis as offering fresh, new scholarly insights.

In response to our recent coverage of the National Review article, we are delighted to report that a Harvard Law graduate who was on the Law Review in 1984, but who did not work for Tribe, has contacted us to confirm in the strongest terms that Tribe also used law students to ghostwrite the second edition of his  treatise, which was in the works in 1984 and was ultimately published in 1988.  Our source indicates that he knew several editors who were Tribe ghostwriters, both on his treatise and on other projects, and that it was common knowledge that these "research assistants" were actually writing up various sections of Tribe's publications, subject to Tribe's line editing and final approval. During this era, apparently, people typically did not have personal computers, so that Tribe's ghostwriters were frequently seen using the Law Review's "word-processing machines" (apparently specialized computers), often until late into the night, to draft up material for Tribe.

Our source is unwilling to go public on this matter, for fear that his career would thereby suffer (a common problem for us in pursuing the Harvard Law School plagiarism stories), but he provided us with evidence of the operation of Tribe's ghostwriting mill that in our view is even better:  a document memorializing that Tribe's ghostwriters had so much autonomy in drafting his publications that it would not be too much of a stretch to suggest that they were the actual authors of his publications (with Tribe generally functioning as an editor or compiler, not an actual author). 

The document is the May 4, 1984, issue of the "Harvard Law Revue," which we are told was a parody version of the Review put out each year poking fun at professors and editors. One of the articles, beginning on page 8, is a parody of an article Tribe actually published in the Review during the prior year, authored by one "Laurence H. Trite."  In the initial footnote, "Professor Trite" confesses that he has "a staff of four graduate assistants" in charge of keeping his thoughts on constitutional law straight.  In footnote 5, two of the editors who our source recalls being Tribe ghostwriters -- David Sklansky and Joan Greco -- are identified as the co-authors of the second edition of Tribe's treatise (with Tribe not listed as a co-author).  The cover, and all four pages of the "Trite" article, are embedded as thumbnails below.  Click on the thumbnails for a larger view.

In a parody context, a humorous exaggeration only works when the audience -- here, fellow Law Review editors -- immediately recognize that there is a large kernel of truth to what is being exaggerated for effect.  Thus this footnote works to confirm that we know from multiple sources who have disclosed Tribe's practices to various journalists, to Dean Velvel, and to us over the years:  that David Sklansky and Joan Greco, and the other Tribe ghostwriters who worked on the first, second, and third editions of his treatise, weren't just doing research, or editing, or cite-checking -- they were drafting sections of Tribe's scholarly works, subject of course to his final review and editing.  They were ghostwriters in Tribe's ghostwriting mill.

Of course, the "Revue" parody issue, standing alone, does not itself prove that Tribe used ghostwriters on the second edition of his treatise.  For that, we need a public statement by a Tribe ghostwriter that the work he or she did in fact involved drafting sections of Tribe's scholarly works.

That, it turns out, is exactly what we have here.  Joan Greco, after serving as a Tribe ghostwriter, went on to further burnish her already impressive credentials by clerking for Justice (then-Judge) Ruth Bader Ginsburg and Justice Sandra Day O'Connor. She then moved on to a law firm, then to law teaching, and then to work on various media projects.  Here's how she described her work for Tribe, in the resume she posted on her AOL homepage (archived copy here):

"Researched and drafted sections of Constitutional Choices and the second edition of American Constitutional Law."  

Again, here are the relevant pages of the 1984 Harvard Law Revue. Enjoy!

Post-Modern "Paper Chase": Larry Tribe as the Anti-Kingsfield

Three prominent law professors, all Yale law grads, recently had a good laugh at the expense of a public figure who we have had occasion to mention on this blog.  Thanks to the reader who called this to our attention and who forwarded a short clip.

In the August 11 episode of PJTV's InstaVision program which you can watch in its entirety here, Professor Glenn Reynolds (of "Instapundit" fame) reflected on the heroic qualities of Professor Charles W. Kingsfield, Jr., the fictional Harvard Law School professor depicted in The Paper Chase. 

Professor Reynolds then directed his imagination to what a post-modern version of The Paper Chase would look like, and what sort of character would play the villian -- the "bad example of a law school professor today."

His answer?  Larry Tribe, a leading figure on this very blog! In identifying the sort of anti-Kingsfield he had in mind, Reynolds made a not-too-thinly-veiled reference to Tribe's practice of having large tracts of his constitutional law treatise ghostwritten by assistants (here), some of whom, it seems, just cannot resist inserting into their drafts plagiarized passages (here).

This amused the other participants in the discussion -- NYU law professor Richard Epstein and Berkeley law professor John Yoo -- who were quick to pledge they've never had a research assistant write a single sentence in any of the articles they've published.

Here's a brief  clip (to subscribe to PJTV click here).



Professor Tribe was unavailable for comment on whether he will be playing himself in the film.

Script and Synoposis of the July 8 "I'm Larry Tribe" Video

We have been covering the ghostwriting/plagiarism scandals at Harvard Law School for nearly six years now.  (For background on our decision to blog anonymously, see here, here, and here).  We have addressed virtually every aspect of the scandals and virtually every comment by journalists and bloggers about them, often in considerable detail.  As mentioned earlier (here), recently we had the opportunity, working with the bloggers on the Harvard Parody site (here; earlier platform here), to attempt to boil down the history of the scandals using a video format, so that someone with no prior knowledge of them could after watching the video have a working understanding of the issues they present, some of which remain unresolved. 

With considerable (and needed) help from the Harvard Parody bloggers, we did our best to present the material in a way that is not just informative, but entertaining.  We introduced that video in our July 10 post, here.  It's hosted on WordPress, as one high-quality video, here.  It's hosted on YouTube (though in slightly lower quality) here. 

A reader suggested that we post a script of the video, to help facilitate analysis of and commentary on it.  We prepared one and provided it to the Harvard Parody bloggers, who posted it here.  However, as concise as we tried to make the presentation, the video runs 31 minutes, so as quick guidance for those who may be new to our blog, and to help encourage people to watch the video, we also prepared an informal synopsis of the video, which also includes a few additional comments as context, most of which will be familiar to long-time readers of our blog.

Although the segments of the video are not numbered, the video covers seven areas, which for convenience we are numbering here.  In parentheses we indicate where in the video each area is covered, for those readers who want to watch only a particular segment.

1.  Introduction and basic background concerning the March, 2005, Harvard Law School Drama Society parody show in which students made fun of Professor Laurence Tribe for his routine use of student ghostwriters, and for his recently discovered plagiarism, for which he had received no punishment.  (0:00 to 2:15)

2 .  Alan Dershowitz:  an "orgy of plagiarism." Evidence summarized on the AuthorSkeptics' blog (here and here) and the detailed analysis of California attorney Frank J. Menetrez (here, here, here, and here), together show beyond any doubt that Alan Dershowitz's 2003 book, A Case for Israel, plagiarized extensively from Joan Peters' 1984 book, From Time Immemorial -- an "orgy of plagiarism," as one reviewer commented shortly after the book appeared. Despite all this evidence, Dean Elena Kagan imposed no punishment on Dershowitz.  (2:15 to 4:00)

3.  Charles Ogletree:  "Double plagiarism" and "tenure-revoking ghostwriting."  Interviews of Harvard Law Review editors and Harvard Law School professors, as reported by the New Republic in 1993, document that then-untenured professor Charles Ogletree was charged with having fraudulently hired students to ghostwrite his tenure article.  Ogletree denied the charge.  There was no conclusive proof of the ghostwriting, as no one was willing to come forward publicly as a witness for fear of being called racist.  In this climate, Ogletree was granted tenure.  However, a decade later in 2004 the original charges took on new credibility, when Ogletree was forced to admit to heavy reliance on student ghostwriters, after ghostwriters who drafted a just-released book for him plagiarized six consecutive paragraphs from a book by Yale law professor Jack Balkin.  (Here, here, here, and here.) Dean Elena Kagan learned of the offense through an anonymous tip.  She did nothing for months. In a Clintonesque effort to minimize news attention she waited until the Friday evening before Labor Day to release her brief internet statement on it (here).  This tactic which backfired when several students, disturbed by such chicanery in an academic environment, started the "OgletreeSkeptics," later renamed "AuthorSkeptics," project in response.  Kagan imposed no punishment on Ogletree, nor did she revisit the original charge that Ogletree had obtained tenure through fraud.  Kagan imposed no punishment even after the Harvard Crimson reported in 2006 that Ogletree's book contained four consecutive sentences which plagiarized from a 1996 book by University of California scholar Roy Brooks (the four sentences appeared in exactly the same order in Brooks's book) (here).  (4:00 to 7:00)

4.  Laurence Tribe's "research factory":  "a bigger kind of plagiarism."  The Ogletree scandal led Ogletree's colleague at Harvard, Professor Laurence Tribe, to write an e-mail to Dean Lawrence Velvel defending Ogletree, but also agreeing with Velvel that "the problem of writers . . . passing off the work of others as their own" was a significant one (here).  Without objection from Tribe, Velvel posted Tribe's e-mail on his blog (here). Another professor (whose identity remains unknown), who regarded Tribe's remark as rather hypocritical, then tipped off the Weekly Standard about Tribe's own plagiarism, in a 1985 book about the Supreme Court, of a 1974 book on the Supreme Court published by Henry Abraham of the University of Virginia.  Joseph Bottum of the Weekly Standard published a lengthy article (here) summarizing the evidence that Tribe had hired a first-year law student to write much of the book for him and that whoever drafted the book had lifted many passages nearly verbatim from Abraham's book.  Tribe apologized for the offense (here and here) and then refused to grant any interviews, not even to the New York Times (here)  Dean Elena Kagan investigated the matter despite her conflict of interest (in the 1980s she, too, had helped draft a book for Tribe and even lived in his basement (here), and thus she had an incentive to keep hidden the extent of Tribe's ghostwriting operation).  On April 13, 2005, Kagan released an official statement on behalf of Harvard clearing Tribe of any intentional wrongdoing (here). (7:00 to 12:00)

5.  Unanswered criticisms of Kagan and Tribe. 

Kagan's action met with severe and sustained criticism from Dean Velvel -- in particular, her apparent decision that for a Harvard law professor to delegate the writing of a book to a law student, and take sole authorship credit, is not an offense deserving of punishment.  (Here, here, here, here, here, here, and here.)  Velvel suggested two simple statements Tribe could make to clear away the charge that he'd used ghostwriters (here, para. 42), statements Professor Ogletree had earlier declined to make (here and here), and which Tribe has declined to make.  (Later, in 2006, Velvel stated (repeating a remark by a professor with personal knowledge of the matter, which would be libelous if it weren't true) that Tribe's assistants "had written large tracts of Tribe's treatise."  See here.)  Tribe's scholarly practices also came under sharp attack by noted historian Peter Charles Hoffer, who holds a Ph.D from Harvard and whose son was a student of Tribe's.  On national television Hoffer stated that Tribe "is misusing assistants"; that he's "not a scholar anymore"; that he's "sort of running a research corporation."  Hoffer further stated that he doesn't see how Tribe can "stand up in front of a group of people as an author" when he's actually "a compiler" of material drafted for him by others.  Hoffer concluded that if he had been aware of Tribe's scholarly practices while his son was at Harvard Law School, he'd have advised his son to "take someone else for constitutional law."  (12:00 to 16:00)

The portion of the 31-minute video containing Hoffer's remarks is available as a standalone video on YouTube here (or just click below):



(Note:  the Hoffer interview served as the inspiration for one of Harvard Parody's funniest songs following up on "I'm Larry Tribe," a song ghostwritten for Tribe to sing, entitled "I'm a Compiler," available here.)

To the best of our knowledge, to date neither Kagan nor Tribe have disputed any of the criticisms made by Velvel and Hoffer.

6.  The June 28, 2010, National Review article on Tribe, written by Robert VerBruggen (here), published more evidence that Tribe is not an author, but merely a "compiler" of material drafted by his army of assistants.  His assistants copied into his 1978 constitutional law treatise at least seven passages from issues of the Harvard Law Review, giving no credit to the Review for the copied passages.  The 2000 edition of Tribe's treatise contained a new section on the Seventh Amendment which Tribe had presented as new and original -- until, that is, the National Review informed him it had learned that hundreds of words of the section had been copied from a 1996 Supreme Court amicus brief which had been filed by eleven lawyers and law professors (not including Tribe), without any credit being given that brief, and without even a mention of the brief (even though the analysis in the brief had ultimately been rejected by the Supreme Court).  Making his first public admission to the use of ghostwriters (and thus confirming the criticisms of Professor Hoffer and Dean Velvel), in a written statement Tribe blamed his "then-research assistant Jonathan Massey" (who he said was one of the "many research assistants over the years" who had helped him actually "draft" portions of his treatise) for failing to disclose to readers that this material was copied from the amicus brief.  However, Tribe was silent on why he never disclosed to readers that his new, heavily pro-plaintiff section on the Seventh Amendment had actually been drafted by a lawyer more than a decade out of law school who (as subsequently discovered by law professor "R.O. Denver") had a long history of urging pro-plaintiff arguments on behalf of plaintiffs' trial lawyers (for example, in the amicus brief at issue) -- a lawyer with a pro-plaintiff bias so extreme that in 2002 the U.S. Court of Appeals for the Fifth Circuit imposed $71,000 in sanctions against him for filing a pro-plaintiff appellate brief which contained "a substantial number of outright falsehoods" in what was "indisputably an act of deliberate misrepresntation."  (Order in Case No. 01-21064 dated Nov. 25, 2002 (here), and earlier memorandum, imposing $71,117.75 in sanctions, jointly and severally, on Jonathan S. Massey, et al.).  (16:00 to 21:40)

7.  Holding Harvard Plagiarists Accountable. Where Harvard administrators such as Dean Elena Kagan fell down on their job, by openly tolerating professors who hire students to ghostwrite their books for them, even when the ghostwriters commit plagiarism, Harvard students stepped up.  One group of students started the Harvard Plagiarism Archive.  On a more entertaining note, members of the Harvard Law School Drama Society prominently featured Tribe and Ogletree in their March, 2005, parody show, staged before an audience of thousands.  The 31-minute video includes audio clips of all three skits focusing on ghostwriting and plagiarism, including the famous "I'm Larry Tribe," complete with lyrics and photos.  You can view that masterpiece as a standalone video here, or just click below:



Shortly after the parody wrapped, contrary to Tribe's September, 2004, statement in which he said he took full responsibility for his offense, Tribe sent an e-mail to his students (here) saying he didn't understand the suggestion in the parody that he was a plagiarist.  Given Tribe's clarification, in effect, that "his ghostwriter did it," so Tribe was guilty of using a ghostwriter, but not of personally plagiarizing from anyone, the students launched the Harvard Parody blog which retracted the "I'm Larry Tribe" parody (here) and substituted a new parody, "Harvard Plagiarist Heaven" (here).  The Harvard Parody blog continues, on a new platform, here.  (21:40 to 31:00)

Update on Senate Judiciary Committee; More on Kagan's Whitewashing of Dershowitz Plagiarism

Two bloggers published posts today regarding the interest of one or more Senate Judiciary Committee members (at least Republican members) in the indications that Elena Kagan investigated the ghostwriting/plagiarism charges against Larry Tribe despite a conflict of interest (she did ghostwriting for Tribe as a student and therefore was involved in the unethical practice she undertook to investigate) and ended up whitewashing the matter.

First, Tom Remington (with whom readers of this blog are already familiar) described the extensive efforts he made starting Monday to publicize the Kagan whitewashing matter, to lobby senators on the Committee to look into it, and to encourage many others to lobby the senators -- efforts which may well have been instrumental in focusing the attention of the senators and their staffs on the matter.  You can read his post here.  We appreciate Mr. Remington's interest and commend him for his efforts.

Second, Brian Leiter, the John P. Wilson Professor of Law at the University of Chicago Law School (bio here), and author two widely read blogs, Leiter Reports:  A Philosophy Blog, and Brian Leiter's Law School Reports, addressed our report about the interest in the Kagan whitewashing matter among at least some senators, in a post you can read here.  We appreciate Professor Leiter's mention of our "often funny blog," and we acknowledge that many will likely concur with him that "[i]t seems rather far-fetched that these matters will derail Kagan's nomination . . . ."

The most important part of Professor Leiter's post, however, is his mention of attorney Frank Menetrez's 2008 analysis (here) showing, beyond any doubt, that Alan Dershowitz is a plagiarist and that Elena Kagan wrongly cleared Dershowitz of plagiarism, thereby freeing him up to mount an attack on the person who had correctly accused him of plagiarism, Norman Finkelstein, with the result that Finkelstein -- the one not at fault -- ended up being denied tenure, while Dershowitz suffered no punishment at all. 

We were aware of Mr. Menetrez's 2008 article, which we relied on heavily in writing portions of the Harvard Parody video ("I'm Larry Tribe":  The Story Behind the Parody) on Kagan's handling of the three Harvard ghostwriting/plagiarism scandals, which you can view here.  However, we were unaware of Mr. Menetrez's article published on June 28, 2010, drawing the connection between his earlier analysis and the question of whether Elena Kagan possesses the character one expects of a life-tenured Supreme Court Justice.  Professor Leiter linked to this article, and we strongly recommend that everyone interested in the Kagan confirmation hearings read it.  It is available here. For related commentary, see here, here, here, and here.

In our view, any fair-minded person should expect and insist that the Senate Judiciary Committee inquire into the matters discussed by Mr. Menetrez -- and the other matters addressed in this blog, on Dean Velvel's blog, and in the Harvard Parody video.

Update (7/15): 

In doing further searches for recent commentary on the Dershowitz affair, we came across two provocative essays about the Harvard plagiarism scandals which specifically discuss Kagan's role, which we somehow previously overlooked.  One, by blogger "Neo-Neocon," from May 15, is entitled The Harvard Law legacy of plagiarism," and features an entertaining video.  It's available here. 

The other, by journalist and author Jack Cashill, from May 13, is entitled Kagan, Obama, and the Harvard Legacy of Literary Fraud.  It's available here.

Professor Codevilla's Analysis of the Larry Tribe Ghostwriting Scandal and Kagan's Whitewash of It

A reader alerted us to a thought-provoking analysis of the broader implications of the Larry Tribe ghostwriting scandal, and Dean Elena Kagan's whitewashing of that scandal, recently published by Boston University professor of international relations Angelo M. Codevilla, in an article on America's current "regime class" which is available in its entirety here.  The portion of the article addressing the Tribe matter is available in a blog post published three days ago, here.

In Professor Cocevilla's view, once someone manages to join the "regime class" by associating with "the right people, giving the required signs that one is on the right side," and showing "that he shares the manners, the tastes, the interests of the class, gives lip service to its ideals and shibboleths and is willing to accommodate the interests of its senior members," ordinary rules of accountability no longer apply:

If, for example, you are Lawrence Tribe in 1984, Harvard Professor of law, leftist pillar of the establishment, you can “write” your magnum opus by using the products of your student assistants, Ron Klain and Barack Obama. A decade later, after Klain admits to having written some parts of the book, and the other parts are found to be verbatim or paraphrases of a book published in 1974, you can claim (perhaps correctly) that your plagiarism was “inadvertent,” and you can count on the Law School’s dean, Elena Kagan, to appoint a committee including former and future Harvard president Derek Bok that issues a secret report that “closes” the incident. Incidentally, Obama ends up as President and Kagan a justice of the Supreme Court. Not one of these people did their job: the professor did not write the book himself, the assistant plagiarized instead of researching, the dean and the committee did not hold the professor accountable, and all ended up rewarded.

We commend Professor Codevilla for addressing the Tribe matter, and for his perspective on its broader implications.  However, we note a small error in his analysis:  the book that, according to reports, was largely ghostwritten for Tribe by Barack Obama was not God Save This Honorable Court (published in 1985, on which Ron Klain was the ghostwriter).  Obama's ghostwriting work was on Abortion:  The Clash of Absolutes, published in 1992.   As Ramesh Ponnuru has demonstrated in detail (see here), in setting forth the historical context of the controversy over abortion in that book, Obama and Tribe relied heavily on a Supreme Court amicus brief signed by hundreds of liberal academic historians which was a fraud: it "falsified the sources on which it purported to rely, and it contradicted the published work of many of the signatories . . . ."

[ 7/17 UPDATE:  Far be it for us to claim we had anything to do with any tweaking of journalistic accuracy, but it appears Professor Codevilla edited his essay in response to our comments, to remove the inaccurate reference to Obama as a purported ghostwriter on the God Save book (he also corrected Professor Tribe's first name, from "Lawrence" to "Laurence").  This morning, law professor Glenn Reynolds of "Instapundit" fame (who has been kind enough to link to our blog in the past) posted this "read the whole thing" comment about Professor Codevilla's apparently final version of his article, which appears on the American Spectator website here.  We're posting this update not out of any "gotcha" attitude, but simply to make clear to readers that our post three days ago accurately quoted the version of the article which had been called to our attention.]

Of course, that's hardly the only publication produced by Tribe in which he and his ghostwriters have taken the material in an advocacy-driven, somewhat suspect amicus brief and recycled it, presenting it as the supposedly objective product of neutral scholarly inquiry.  Read this blog post, and watch this video.

[7/15 UPDATE: In case you have difficulty viewing the Harvard Parody videos, either as embedded on this blog or at HarvardParody.wordpress.com, the videos are also posted on YouTube on the Harvard Parody channel, here: http://www.youtube.com/user/harvardparody]

Senate Republicans Are Looking Into Kagan's Whitewash of the Larry Tribe Ghostwriting Scandal

A quick update on last night's post:

We managed to reach a staffer for one of the Republicans on the Senate Judiciary Committee who assured us that the Republicans are looking into the indications that Elena Kagan was involved in whitewash of the Larry Tribe ghostwriting scandal and -- of particular concern -- that she involved herself in an investigation of the charges that Tribe used ghostwriters to produce a book on which Tribe took sole credit as author even though Kagan herself was involved in this unethical practice as a student (as set forth in detail in a recent video, here) and thus had a clear conflict of interest in whitewashing the matter, which is exactly what she ended up doing (we credit Dean Lawrence Velvel for the earliest detailed analysis of Kagan's conflict of interest; see here).

We did not press the staffer (who we agreed up front not to name) on what information was being examined, but the staffer seemed familiar with this blog, and with the recent "I'm Larry Tribe" video put together by the Harvard parodists with our help (see here).  We hope the Senators or their staffers examining this matter will speak with Dean Velvel and other academics who we have featured on this blog.

We note that the staffer was not especially eager to discuss this matter with us, and did so only after we pointed out that if we weren't given any information on whether or not Kagan's whitewashing of the Larry Tribe ghostwriting scandal was being addressed then we would have to assume -- and report on this blog -- that even after blogger Tom Remington (see below) contacted Senator Sessions' office and the offices of several other Republican Senators on the Judiciary Committee, the Republicans had declined to look into the considerable evidence of wrongdoing by Kagan.  We're happy to be able to report otherwise.

What is Senator Sessions' View of Kagan's Whitewash of the Larry Tribe Scandal?

Blogger Tom Remington, who we blogged about yesterday, has an interesting update today on his Black Bear Blog, here.

Remington points to the announcement of Senator Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, that he and the other Republicans on the Committee are forcing a one-week delay of the Committee vote on her nomination, to insist that she answer questions, set out in his letter, concerning whether she will recuse herself from any cases involving the constitutionality of the recently passed federal health care legislation.

But where, Remington asks, are the questions about Kagan's role as dean of Harvard Law School in whitewashing the ghostwriting/plagiarism scandals involving Larry Tribe and Charles Ogletree -- a role she undertook despite a personal conflict of interest (as a student she'd served as a Tribe ghostwriter and hence had every incentive to sweep the matter under the rug)?

Remington writes: 

[T]here is no reference to anything to do with Elena Kagan and her role in covering up ghostwriting and plagiarism at Harvard Law School while she was dean. I know that Sen. Sessions and others on the Judiciary Committee have been made aware of this as I have contacted them asking that they investigate.

We commend Mr. Remington on his efforts to alert Senator Sessions and others on the Committee to Kagan's whitewashing of such matters, and we will do our best to follow up, by contacting members of the Committee to ask whether they have taken the time to review the matters flagged by Mr. Remington, and to report on this blog what their views are.

Black Bear Blog on Senators' Neglect of Harvard Plagiarism Story: "Shame on the Senate"!

Tom Remington of the Black Bear Blog made a cogent post this morning noting the importance of the Harvard plagiarism scandals to the Senate's task of deciding whether Elena Kagan is fit to sit on the U.S. Supreme Court (we appreciate his link to our blog).  You can read it in full here. 

Mr. Remington, an avid hunter and the managing editor of U.S. Hunting Today, has previously opposed the Kagan nomination, mostly based on concerns about how faithfully she would adhere to the Second Amendment right to bear arms.  In this post, Remington expresses his concern about the Senate's lack of interest in Kagan's handling of the ghostwriting/plagiarism scandals at Harvard.  An excerpt:

Like with any Supreme Court nominee, there is more to the person than simply how they stand on Second Amendment. Isn’t it just as important to know about a person’s character, maybe even to know whether they find little problem with lying, cheating and stealing?

A reader tipped me off the other day to events that have been taking place for some time at Harvard Law School, especially during the time that Elena Kagan was the Dean. It appears there is nothing short of an epidemic (at least by using Barack Obama’s standards for what entails an epidemic) of plagiarism by some of Harvard Law’s well-known associates – Alan Dershowitz, Charles Ogletree and Laurence Tribe. The history is long and sordid dating back several years.   You can find much information about this from the links given to me by a reader who claims to have been following this story for several years and puzzles over why nobody is talking about this during the Kagan hearings. The Harvard Plagiarism Archive is a good place to start and the below video I’ve posted can be found at the Harvard Parody.

Personally I have little, if anything, at stake if Harvard Law School wants to pump out liars, cheaters and stealers.  . . .  However, all Americans have a stake in this because as Dean of Harvard Law School, according to documents provided [at the Harvard Plagiarism Archive], Elena Kagan was aware of copying and pasting of other scholars’ work into books and other documents claimed by Dershowitz, Ogletree and Tribe and essentially did nothing about it. Even more troubling is that Kagan, as Dean, investigated accusations against Laurence Tribe about his using students to ghostwrite and plagiarizing for his book and other works. A real conflict of interest exists here in that Kagan used to ghostwrite for Tribe.

Plagiarism is a serious offense. Caught in the act, a student will be bounced out on their ear but evidently it is an acceptable practice at Harvard Law School for professors and staff; at least under Kagan’s watch. The ramifications of stealing another person’s scholarship goes far beyond the obvious dishonesty and threatens the very foundation of academic scholarship, much as Climategate has rattled and cracked the scientific world leaving millions not knowing who to believe or trust.

. . .  Why isn’t this being discussed during the Kagan nomination process? This knowledge challenges the very core of a person’s character; the very ethos no American should desire to see of a person sitting on the highest court in this land.

Surely members of the Senate must be aware of this . . . aren’t they? Do they want to know? How deeply tied are these Senators to Dershowitz, Ogletree and Tribe? Is this all just Washington “business as usual/politics as usual”?

For Elena Kagan, as dean of any college, to show such disregard for obvious plagiarism is an abomination but to take it upon herself to investigate the person she used to ghostwrite for, simply reeks of dishonesty and a cover-up or better yet a good, old-fashioned Washington, D.C. whitewash.

* * *

Shame on the Senate for not getting to the bottom of this in their vetting process. If you think this information is important in selecting a Justice to sit on the Supreme Court, pass it on to everyone you know and most importantly, send it to your Senator.

Elena Kagan's "Runaround Suit"

The Harvard Parody bloggers have been busy.  Yesterday they posted a new video, called Elena Kagan's "Runaround Suit."  It contains highly entertaining video from the March, 2009, annual Harvard Law School parody show, which portrayed Justice John Paul Stevens as a decrepit old man who'd lost his marbles.  That video is matched with video of Kagan professing her great respect for Justice Stevens during her confirmation hearing a couple of weeks ago.  

The video also portrays Dean Kagan putting on a superhero cape, and announcing:

"But now I'm going to D.C.; I'm going to help fix the country the way I fixed the Law School!"

Given how Dean Kagan "fixed" the ghostwriting/plagiarism scandals of Professors Dershowitz, Ogletree, and Tribe by meting out no punishment of any kind to any of them even though each was caught red-handed having students write books for them (because, as it happened, the students had plagiarized material from other books), we must admit to some concern about the future of the country, or at least of the Supreme Court!




[7/15 UPDATE: In case you have difficulty viewing the Harvard Parody videos, either as embedded on this blog or at HarvardParody.wordpress.com, the videos are also posted on YouTube on the Harvard Parody channel, here: http://www.youtube.com/user/harvardparody]

Update on National Review article and Harvard Parody project

A week ago we reported on the June 28 National Review article by Robert VerBruggen (article here) revealing important new evidence supporting what we have long contended:  that Professor Laurence Tribe has for years run a ghostwriting mill in which his books and articles (including his career-making constitutional law treatise) are drafted for him by his current and former students, with Tribe serving mostly as a compiler of material written by others, not as an actual "author" of the works bearing his name.

One of our most important posts on this point, dated Feb. 2, 2006, discussed an essay by Dean Lawrence Velvel touching on our "ghostwriting mill" description of Tribe's method of producing books. See here.  In particular, we quoted Dean Velvel's comment that a law professor he knows had recently told him that while a student at Harvard Law School he had been asked "to work on American Constitutional Law" and "he knew several people who had done so.  . . .  The people who had worked for Tribe, said this professor, had written large tracts of Tribe's treatise."

As we mentioned last week, we first learned of the National Review article from one of the Harvard Parody bloggers.  They ended up doing a lengthy video (which we provided significant help with), explaining in detail the Larry Tribe ghostwriting/plagiarism scandal which Dean Elena Kagan was instrumental in whitewashing, entitled:  "I'm Larry Tribe":  The Story Behind the Parody. The end of the video includes highly entertaining audio, photos, and lyrics of the 2005 live performance of the "I'm Larry Tribe" parody skit.  (If you want to watch only the skit, it's available as a discrete clip on YouTube, here.)

The full video is posted at the new Harvard Parody site on WordPress.com (which apparently has video hosting capabilities not available on the old Harvard Parody platform). [7/12 update: a reader suggested we embed the video; here it is]



[7/15 UPDATE: In case you have difficulty viewing the Harvard Parody videos, either as embedded on this blog or at HarvardParody.wordpress.com, the videos are also posted on YouTube on the Harvard Parody channel, here: http://www.youtube.com/user/harvardparody]

One final point.  In response to our post of last week, "R.O. Denver" e-mailed us about the new evidence of plagiarism by Tribe discussed in the National Review article, of which he had quite detailed knowledge.  Denver was the law professor who tipped off the Harvard Crimson to new evidence of plagiarism by Charles Ogletree in 2006.  See here.  Denver immediately supplied us with very helpful background information (particularly on the research assistant singled out by Tribe) which we used in helping put together the video.  Denver recently informed us that he plans to launch a website (similar to the one he created on the new evidence of Ogletree's plagiarism, see here) setting forth that background information and fully documenting the new evidence of plagiarism by Tribe, complete with images of the relevant pages of Tribe's treatise and of the sources which were copied into Tribe's treatise.  We greatly appreciate his assistance, which will minimize our burden in keeping this blog up to date. We will post a link to his website once it is available.

On Elena Kagan Covering for Alan Dershowitz

Blogger Tony Greenstein has an interesting post on Elena Kagan's effort as dean of Harvard Law School to cover for Alan Dershowitz's plagiarism (a subject which we've given little attention, focusing more on her efforts to cover for Laurence Tribe and Charles Ogletree).

You can read it here.

For an excellent primer on the Dershowitz affair, we recommend Harvard Clown School.  (For our discussion of that blog, see here).

Elena Kagan, Medical Ghostwriter?

We note with some amusement that after drawing enormous flak from Dean Lawrence Velvel for her apparent role in the 1980s as a legal ghostwriter for Laurence Tribe (see here), Elena Kagan faced tough questioning in her confirmation hearings over the possibility that in the 1990s she served as a medical ghostwriter on a sensitive political matter involving abortion.  Here.  It's a shame no one (apparently) asked Dean Kagan about her legal ghostwriting work.

Last month Professor David Bernstein noted Kagan's ghostwriting work for law professors (hardly the first such work, it appears!) during the Whitewater affair, in a Volokh Conspiracy post here.  Some of the commentators are quite critical of Kagan.

National Review Article on Professor Tribe

A few days ago the National Review published an article on new evidence of the use of ghostwriters, and/or the commission of plagiarism, by Professor Laurence Tribe.  The article is "Pearls Richer Than Tribe," written by Robert VerBruggen.  You can read it online here (apparently it's not in the print edition).

Despite our interest in the subject matter, we did not know about it until today, when a Harvard Parody blogger (we discussed that blog here) called it to our attention.  Based on a quick Google search, it appears the article has received little attention.  Mr. VerBruggen's article mentioned both the Harvard Parody blog and our blog (which we certainly appreciate).  The Harvard parodists tentatively plan to do another post or set of posts in an effort to renew interest in their efforts, and in the Harvard plagiarism scandals, and have asked us for our input, which we will try to provide if our schedules permit.

Update (7/2013) -- Above link to article is broken.  Here is a summary of the article (link to article there is broken, too).   Apparently some of the urls on the National Review website have been changed, but not all cross-references have been updated.  The new url for the article is here.

Dean Lawrence Velvel on Kagan's Nomination to the Supreme Court

Former Harvard law school dean Elena Kagan (now Solicitor General), a central figure in this blog, has now been nominated for a seat on the U.S. Supreme Court.  Dean Lawrence Velvel, another central figure in this blog, is not exactly backing her nomination (which should come as no surprise to readers).  See here.

Earlier, Evan Gahr of Jewish World Review discussed Kagan's role in whitewashing the Harvard Law School ghostwriting/plagiarism scandals involving Laurence Tribe and Charles Ogletree, here.

It's also discussed by blogger Robert Stacy McCain (The Other McCain) here.

Harvard Crimson story on plagiarism

The Harvard Crimson recently revisited the subject here.

"Harvard Clown School" blog

Last week "Dunc Hunter" (we presume a pseudonym) published a new blog entitled "Harvard Clown School."  It decries what certainly seems to be a recent decline in scholarly standards at the (formerly?) prestigious Harvard Law Review.  It artfully (in our view) links that decline to the earlier toleration, by Dean Elena Kagan and others, of professors' use of student ghostwriters, even when those ghostwriters turn out to have plagiarized from legitimate scholars.

We recommend it highly, but we must point out that the blog consists largely of links to stories about Harvard plagiarism which we initially collected and publicized on our blog -- yet "Dunc Hunter" doesn't see fit to mention our blog even once!  We leave it to our readers to decide whether he's plagiarized our blog about Harvard Plagiarism.

We must give "Dunc Hunter" credit for one thing:  he has boiled down the basic story about the Harvard plagiarism/ghostwriting scandals, and the key sources, much more concisely than we have ever done -- particularly with regard to the Dershowitz affair.  Therefore the "Harvard Clown School" blog serves as a good starting point for readers new to this subject.  We will follow with interest any further posts on the blog.

IPBiz on Harvard Plagiarism

Lawrence B. Ebert at the IPBiz blog has posted recently on the continuing Harvard plagiarism problem, here and here.

Harvard Medical School plagiarism scandal

Accusations of plagiarism have been leveled against Lee S. Simon, a professor at Harvard Medical School.  Harvard Crimson article here.

Dean Vevel on Harvard's Ghostwriting Problem

Dean Velvel just will not stay away from the Harvard ghostwriting story!  For that, we are grateful.  We recommend his excellent post of last week, which you can read here.

Former Tribe Assistant Comments on Ghostwriting Charges

Former Tribe research assistant Michael Dorf (now a law professor) comments on the ghostwriting charges against Tribe and other Harvard figures, here.

Dorf states that"I did not ghost-write anything substantial for Larry's academic projects when I worked as his research assistant.

Two questions readily come to mind:

1.  Dorf is not precise.  What does he mean by "substantial"?  If he drafted 50 pages of a 1000-page book for Tribe, presumably that might not count as "substantial," yet many would regard the absolute volume of writing as involving an unethical amount of delegation of authorial work (absent full disclosure of the delegation).

2.  Are any other Tribe research assistants able to make Dorf's statement?

Blogger on Tribe's Self Parody

The "Self-Absorbed Boomer" blog has some humorous comments about the Harvard Parody treatment of Professor Tribe (which we blogged about here, here, here, and here) and about Tribe's own self parody on his website (which we blogged about here).

Dershowitz's Attack on Finklestein

The Harvard Crimson has had some solid recent coverage of Alan Dershowitz's attacks on Norman Finklestein (who accused him of plagiarism back in 2003), which contributed to Finklestein being denied tenure at DePaul University, here, here and here.

Dean Velvel on Judge Posner on Plagiarism

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

Dean Velvel on Dean Kagan

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

More Plagiarism By Charles Ogletree

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

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

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

New Harvard Crimson Story

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

Dean Velvel on Dean Kagan

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

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

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

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

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

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

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

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

Recent blog post on Professor Tribe

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

More Harvard Parody Posts

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

The Tribe Abandonment: summary of news and blog items

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

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

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


May 20

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

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

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


May 21

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


May 22

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

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

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

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

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


May 23

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

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

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

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

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

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

“The Public Trust” has this short post.

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


May 25

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

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

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


May 26

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

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


May 27

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

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

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

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

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

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

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

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

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

JD2B has this short item.

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

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

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

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


May 28

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

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


May 29

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



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



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

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

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


June 1

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

Cambridge Surprise: Professor Tribe abandons his treatise

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

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

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

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

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

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

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

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

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

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

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

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



(TWO-PAGE LETTER TO JUSTICE BREYER)

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

April 29, 2005

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

Dear Steve:

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

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

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

{2}

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

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

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

Sincerely,

/s/ Larry

Laurence H. Tribe



(THIRTEEN-PAGE "OPEN LETTER")

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

April 29, 2005

An Open Letter to Interested Readers of American Constitutional Law:

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

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

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

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

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

* * * *

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

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

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

* * * *

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

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

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

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

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

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

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

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

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

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

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

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

{7}

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

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

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

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

* * * *

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

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

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

{9}

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

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

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

{10}

* * * *

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

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

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

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

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

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

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

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

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

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

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

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

{13}

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

/s/ Laurence Tribe