Re. "Say it ain’t so, Joe."

From: Alan M. Dershowitz
To: Dean Lawrence R. Velvel
Sent: Thursday, September 30, 2004 11:08 AM
Subject: Dershowitz response


Dear Dean Velvel:

Thank you for your generally kind words about me. I understand your criticism of the comments that were attributed to me in various newspaper reports. Let me make my position clear. I do believe there are cultural differences between the legal profession and academia, especially in the context of hierarchical law firms where briefs are produced by the research and writing of associates and junior partners and then either signed by the law firm or by the senior partner. The same is true of briefs produced by prosecutors' offices. Moreover, judges routinely copy verbatim large chunks of briefs submitted by litigants without any attribution whatsoever. This observation was in no way intended to provide any kind of a justification for plagiarism. The observation was made in a related but different context, namely, the problem of lawyers and law professors assigning drafting responsibility to research assistants – a phenomenon that may well lead to accidental plagiarism. It is because of this cultural difference that I proposed the establishment of a committee to lay out clear guidelines on attribution and the use of assistance. Lawyers love clear lines and easily adapt to them. Unclear lines encourage selective targeting of professors by their ideological enemies and critics. There is never under any circumstances any justification for plagiarism and nothing I said was intended to serve as a justification. If you’ve read my books, particularly, The Abuse Excuse, you know that I’m very tough on excuses. To understand is not to forgive, but it is to suggest positive steps designed to avoid recurrence of the problem.

I’m pleased that these issues are now being debated on your blog and others. Debate about these matters is healthy.

Sincerely,
Alan Dershowitz
__________
Alan M. Dershowitz
Felix Frankfurter Professor of Law
Harvard Law School
1575 Massachusetts Avenue
Cambridge, MA 02138

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----- Original Message -----
From: Richard_Posner
To: Dean Lawrence R. Velvel
Sent: Wednesday, September 29, 2004 2:56 PM

Larry, you make some good points. But it's a losing battle. The problem is that we no longer have a culture of writing. Writing is now a specialty. So judges, politicians, businessmen, lawyers--and now it seems law professors--increasingly hire ghostwriters (whether they're called ghostwriters, law clerks, or research assistants) as specialists in writing. I am one of the dinosaurs who still does all my own opinion writing (and of course book and article writing as well). You probably are too. But let's face it: we're on the road to extinction.

All the best. Dick
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September 30, 2004

Dear Dick:

Thanks much for the response. You make a very worrisome point. I would therefore like to post your response and this reply, and since your email does not object to posting your comments, I presume it is okay to post them and the reply. But if it is not okay, please tell me.

To turn to your comments, let me say, first, it is surely not surprising that you do your own work. I would have been stunned if it were otherwise. For paradoxical as it may seem to many, nobody turns out the quantity of first rate work that you do if he has others doing his work for him. This would seem to many counterintuitive, since they would think more could be done if others are bearing part of the burden. But though it is counterintuitive to many, it is nonetheless true. There is an old saying that, if you want something done, give the job to a busy person. That is something that I think a lot of people understand. Yet the idea underlying it is the exact same idea as underlies my view that nobody will be as prolific as you have long been if others are writing his stuff.

You are, incidentally, correct in apparently thinking that I too do my own writing. This shows that one can do one’s own writing but not have your prolificness.

You make the worrisome point that the battle against having others do one’s writing is a losing one because "we no longer have a culture of writing." Thus, people turn over their writing to "specialists in writing," "whether they’re called ghost writers, law clerks, or research assistants." One simply cannot argue with your view of the present culture, i.e., that it is not a culture of writing. But such a culture is a disaster, is accompanied by the unhappy corollary that we no longer have a culture of reading, and in significant measure is attributable to our schools, from grammar schools to post graduate schools. Every effort should be made to change the culture, in my judgment, and the change should be promoted at every level of the school system.

The non-culture of writing, I may add, is also pretty strange in a way. For computers have made it easier and faster than ever to write and rewrite. It is far easier today than it was in, say, the first 60 or 70 years of the 20th century. There are precious few people left who, like me, don’t use a computer and write out everything in longhand.

There are some interrelated reasons why I feel strongly that we should get back to a culture of writing. One is the very question of honesty discussed in the prior posting. Much has been said there about that. But let me add one thing: if people insist on continuing to have others do their writing for them, then, heretical as this may sound to CEOs, politicians and judges, due credit should be given to the others. Perhaps, for example, a judge should say in a footnote in his or her opinion that so and so, a law clerk, assisted in the writing of the opinion. Or perhaps politicians or CEOs should explicitly thank -- i.e., give credit to -- those who helped them.

This may sound bizarre to judges and politicians and businessmen. But others have faced and resolved similar problems by giving credit where it is due. Newspapers, for instance, have faced the problem and have solved it by putting the names of two or more reporters on articles, instead of just one. Or sometimes they say at the bottom of a piece that X and Y and Z contributed to the article.

Thanking others for their help would be the honest thing to do. It would also let readers know who contributed to resolutions of problems or to other work -- or is this precisely the problem because the putative writers don’t want people to know that others contributed to the work. I would say that, if it is the problem, if CEOs, politicians and judges don’t want people to know that they have relied on the work of others, then they damn well ought to do the work themselves, as you do.

But there are other problems, too. One is encapsulated by the old saw that clear writing makes clear thinking. This, as you know, is a way of saying that writing things out stimulates one’s thought process wonderfully. Problems, illogicalities, possible solutions, etc. that one would never have thought of otherwise impress themselves on one if he or she has to write out the matter. (Judges have long had an expression that reflects this: "The opinion wouldn’t write.") When people don’t write, their thinking can be far less competent. This is very dangerous to our society, because it bespeaks a much lower quality of thinking on the part of leaders.

The corollary that a society which does not write will not read is, I think, equally true and, if anything, even more dangerous. What can one say? A society where people do not read is doomed to progressively greater ignorance and mistakes, is it not? Although you might strongly disagree, it seems to me that non-reading and the ignorance it breeds are in no little measure responsible for some terrible messes we find ourselves in today. Harry Truman once said there is nothing new under the sun except the history you don’t know, and apparently he also said, or least thought, that not all readers can be leaders, but all leaders must be readers. To me Truman seems exactly right.

There is one final point. Even if we do now have a general culture of non-writing, the people who recently have found themselves in trouble -- Ogletree and Tribe -- and the ones who previously got in difficulty because of a charge of plagiarism -- Ambrose, Kearns-Goodwin, to some extent Dershowitz -- have made their lives in a specific sub-culture of writing. So they in particular should not have had books, for which they claimed credit, written in part or whole by others, and should not have plagiarized. You know, it is sad to say, but may be inevitable, that what has been coming to public notice will lead to questioning of the bona fides of what is done generally at the Harvard Law School, in other parts of Harvard University, and at other top ranked and lesser institutions. Suspicion may run deep for awhile, and God forbid that it should prove widely warranted. This society really should get back to people doing their own work. I seem to remember that Holmes did it. I believe Brandeis did it. You do it. Even turkeys like me do it. At rock bottom there is not much in the way of sustainable reason why most people shouldn’t do it, and there are lots of good reasons why they should.

And yet . . . . and yet . . . . one dreads the possibility that your pessimism may be all too well placed.

In any event, thanks again for your response. I would like to post it and this reply. Also, any further comments you wish to make would be avidly received and, if you have no objection, would be posted.

All the best.
Sincerely yours,
Larry Velvel

From: Richard Posner
To: Dean Lawrence R. Velvel
Sent: Thursday, September 30, 2004 11:02 AM
Subject: Re:

Larry,
you can post my email if you'd like. You make some very telling points in this reply, especially about Ogletree et al. being (or being viewed as) writing specialists. Dick

"Say it ain’t so, Joe."

Dear Colleagues:

Let me first set the stage for the points to be made subsequently in this blog.

On September 10, this author posted a blog about the situation regarding Professor Charles Ogletree’s book, called All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education. The blog said that Ogletree’s apparent transgression was symptomatic of a problem that is pervasive in our society. Here are the three paragraphs most relevant to this problem:

Let’s start with lack of honesty. If memory serves, Justice Brandeis once said that the Supreme Court was respected because it was the last place in Washington where people did their own work. Well, they haven’t done their own work at the Supreme Court either for the last 50 years or so. The Justices’ major item of work -- their opinions -- are drafted by others, by clerks whose names are publicly unknown.

Everywhere in this country underlings write the speeches, the briefs, the articles, the books, the p.r. statements for which bosses, superiors, people on top take the credit. Politicians, university presidents, corporate executives, partners in law firms -- wherever you turn people on top take the credit for the work of others. There are a million reasons (read excuses) for this: The top guys are too busy to do the work themselves. Or their talents lie elsewhere. Or it’s the job of the flack to do this work. Or the top guy told the flack what to say. Or Mister Big may have reviewed the work, may sometimes even have edited it, and agrees with everything he has put his name to. Or the flack was paid to write the big shot’s book for her. Or this is just the way the world works and everybody is doing it.

The justification -- the excuses -- don’t matter. It’s all a form of dishonesty: It all constitutes taking credit for work that was done by others.

The blog also noted that Professor Ogletree had receive some sympathy from Harvard colleagues, and quoted in this regard a statement made to The Boston Globe by Professor
Lawrence Tribe:

It clearly represents the fact that because he so often says yes to the many people all over the country who ask for his help on all kinds of things, he has extended himself even farther than someone with all that energy can safely do.

Upon invitation, Professor Tribe subsequently sent an email, which was posted here. In relevant part it made the following comment:

As to the larger problem you describe -- the problem of writers, political office-seekers, judges and other high government officials passing off the work of others as their own -- I think you're focusing on a phenomenon of some significance.

Professor Tribe’s comment drew a lot of attention, even though most people nonetheless seemed most concerned with the question of plagiarism in academia rather than with the more general societal problem of people of all kinds claiming others’ work as their own.

II.Subsequently, Professor Tribe was "caught out," so to speak, as having plagiarized material, from a 1974 book by Harold Abraham, for a 1985 book that Tribe wrote. Tribe’s actions were detailed in The Weekly Standard, a conservative publication which received a tip about the plagiarism from an unidentified law professor. (I haven’t the least idea who the professor was.) Judging by a September 28^th article in The Boston Globe (at pp. B1 and B6), the unidentified professor contacted The Weekly Standard after apparently reading both Tribe’s sympathetic remark about Ogletree in the Globe article and reading Tribe’s above quoted comment posted on this weblog (but certainly, I gather, after reading the latter). There is irony, is there not, in the fact that Tribe’s comment about the significance of the problem of people passing off another’s work as one’s own apparently contributed to his own "unmasking"?

Anyway, Professor Tribe quickly issued a mea culpa, an apology, after being "outed." He took "full responsibility" for the failure of attribution. One should applaud the immediate assumption of responsibility.

What one cannot applaud are the apparent reactions of Charles Ogletree and Alan Dershowitz to the Tribe situation. Ogletree is quoted by The Harvard Crimson as saying that the charges against Tribe are "‘nonsense.’" Nonsense? When Tribe has admitted them and apologized? It is hard to believe Ogletree said that. Is The Crimson quoting him correctly and in context? If it is, what the hell is the matter with this guy? One begins to wonder whether Harvard should keep him.

Dershowitz’s reactions, if he was quoted accurately and in context by The Crimson and The Boston Globe, are just as bad.

Now, before discussing what Dershowitz said, let me state an opinion about him. There was a time, it is true, when this writer felt that possibly Dershowitz was just another publicity hound. If memory serves, after all, the joke told here previously that the most dangerous place in the world to be is between Professor X and a television camera was actually told about Dershowitz by one of his cocounsel in a case. But in later years I rather considerably changed my mind about Dershowitz after reading a couple of his books, reading an email colloquy he had with Richard Posner and, very importantly, seeing him debate on television a couple of times. These exposures, particularly seeing him debate on TV, have caused me to think Dershowitz is one of the truly great minds of our generation of legal academics. Maybe a lot of people don’t share my views, but I am pretty much wowed by him now. So what shall be said shortly does not come from a Dershowitz hater. To the contrary.

According to The Crimson, when asked if Tribe was right to apologize, Dershowitz said he thought Tribe "‘may be overreacting.’" For the person whose work Tribe plagiarized "‘sat on this story for 20 years. If he had a gripe, he should have written to Larry 20 years ago.’" Also according to The Crimson, Dershowitz says the charges against Tribe were, in the paper’s words, "politically motivated." "‘Clearly,’" The Crimson quotes Dershowitz as saying, "‘someone was looking to pin something on the most prominent liberal constitutional scholar in the country.’"

Well, what Tribe did was wrong. Abraham will rightfully have a gripe about it forever; what Tribe did cannot be tolerated; and while Abraham probably should have complained about it 20 years ago, he is within his rights to complain about it today. As for Dershowitz’s charge that Tribe was "outed" because someone wanted to pin something on the country’s most prominent liberal scholar, Dershowitz may very well be correct. I would guess that he almost certainly is correct. But this does not excuse what Tribe did. Tribe deserves credit for his immediate mea culpa. It contrasts with Dershowitz’s attempt to sort of get him off the hook by saying the charge is just liberal-bashing. It doubtlessly is liberal bashing. But the problem is that it also is true.

The charge is, of course, a charge of a certain kind of dishonesty, a charge of dishonestly passing off someone else’s work as one’s own. So, tell me, is there some God-ordained reason why we liberals can’t be honest or why dishonesty should be excused because one is liberal? Frankly, if one were to make a vast and obviously greatly overdrawn generalization, it might be that conservatives are dishonest in business and liberals are dishonest in the academy and government (although some would think that people like George Bush give the lie to a claim that conservatives are honest in government). In any event, dishonesty is dishonesty, whether stemming from liberals or conservatives, and wherever occurring, and it is not to be excused by a claim, however true, that a critic is liberal-bashing.

Dershowitz also made another point in excuse for Tribe. This one is awful, and how a brilliant man like Dershowitz could have said it is utterly beyond me. One hopes that he was quoted erroneously or out of context -- one wants to say to Dershowitz, as the kid said to Shoeless Joe Jackson, "Say it ain’t so, Joe," or, in this case, Alan. But, unhappily, Dershowitz is quoted for the same point by both The Crimson and The Globe, so it seems likely that, to paraphrase the old Alka Seltzer ad, "You said it, Al." (In the ad a guy said "I can’t believe I ate the whole thing," and someone responded, "You ate it, Al" or Joe or whomever).

According to The Crimson, Dershowitz said that there is a "‘cultural difference’" between sourcing in the legal profession and in other academic disciplines. With the rest of the sentence being The Crimson’s words, albeit reflecting Dershowitz’s ideas, The Crimson wrote that "He said that judges frequently rely on lawyers’ briefs and clerks’ memoranda in drafting opinions. This results in a ‘cultural difference’ between sourcing in the legal profession and other academic disciplines, Dershowitz said."

The Globe wrote the following:

Dershowitz said yesterday that law and academia sometimes have different standards, and Harvard Law School would benefit from establishing a committee to lay out clear guidelines on attribution and the use of assistants.

‘Particularly in law schools, the rules are not clear, because there is a culture of judges and lawyers relying on the work of assistants,’ he said.

Wow! A "‘cultural difference’" between law and other academic fields. You mean, Professor Dershowitz, that because of this "‘cultural difference’" it is not okay for other professors to plagiarize, but it is okay for law professors to plagiarize? At least if they are Harvard law professors? You mean that because there is a culture of judges and lawyers using assistants’ work without attribution -- some might say they in effect steal their assistants’ work -- it is therefore okay for law professors to plagiarize from others when writing a book? You mean that because judges and lawyers use assistants’ work without attribution, the rules therefore "are not clear" for law professors when writing a book? Do you really mean these things, Professor Dershowitz? You don’t really mean them, do you? -- "Say it ain’t so, Joe." Because if it is so, you are spewing unvarnished "bovine excrement," to use a euphemism from a recent Sports Illustrated article (a euphemism which, if memory serves, was used previously by Norman Schwarzkopf).

You know, when you get right down to it, the underlying problem in this whole mess is that, everywhere you look, America has a culture of dishonesty. As said before, there are a million reasons given as to why it is alright to be dishonest in this way or that way, or to pass someone else’s work off as your own -- which is a form of dishonesty. The underlying problem, then, is the one identified in the paragraphs quoted above from the blog of September 10^th.

Curiously -- yet in reality all too expectedly – in all the webtalk from others that I have seen about the Ogletree/Tribe business, I can remember nothing about the underlying problem of wide-ranging dishonesty in American society except for Larry Tribe’s comment in his email to this blogger. Oh, there is lots of talk about dishonesty in academia, about academics’ plagiarism of others’ work or plagiarism of the work of one’s own assistants (whom one pays to subject themselves to this). But, except for Tribe’s comment, there is no talk that I can remember about the underlying pervasiveness of dishonesty in this society. Maybe that is because -- one suspects it certainly is because -- pervasive dishonesty of one type or another is so widely and unthinkingly accepted in America.

Well, I hope to receive some views from readers on this pervasive general problem. Write emails to me about it, and they will be posted.

Oh -- but make them honest.^*

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*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

From: Joseph Bottum
Sent: Wednesday, September 29, 2004 3:41 PM
Subject: Tribe

Dear Dean Velvel,

Thanks for the e-mail about your new blog posting. I should say that the tip of Prof. Tribe's use of Prof. Abraham came entirely because of what he said on your blog--and to me at the Weekly Standard, in particular, because of what I had written earlier about what I called Prof. Ogletree's "kind of double plagiarism."

In other words, Prof. Tribe's expressions of sympathy for Goodwin and Ogletree did not prompt the tip. But his olympian declaration of a general problem did. Though I think the Weekly Standard article made this clear, the Boston Globe mentioned both these comments from Tribe in a slightly confusing way, and the AP wire story, written off the Globe's text, got it simply wrong: ascribing the tip to anger at Tribe's expressions of sympathy.

Though all this may be ironic, as you say, it is still within the realm of morally permissible human reaction, I think. Mercy and justice are not fully reconcilable in the moral imagination, but expressions of sympathy like Tribe's earlier comments probably ought not to anger us too much, whatever their source. But there is a legitimate disgust, I think, when people opine grandly on the general problem of which they are specifically (and secretly)guilty.

I'll be writing more on this topic in a Weekly Standard column next week, and I've been thinking seriously about Prof. Dershowitz's comments on "cultural differences," but in the meantime, you may use this e-mail on your blog, if you find it interesting or helpful. Thanks again, by the way, for the phone conversation last week.

Yours,

Jody

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Joseph Bottum
Books & Arts Editor
The Weekly Standard
1150 17th Street, NW
Suite 505
Washington, DC 20036

Shouldn’t We Consider A Three State Solution In Iraq?

Dear Colleagues:

I would like to ask a question. It is one that media readers of this blog should pursue, assuming, as I believe, that there are a few media readers. For only they, politicians and scholars can really bring out the pros and cons of the question.

The question is this: especially because we face what appears to be an ever increasing disaster in Iraq, why do we not pursue a "three state solution" there, which seems to be the logical thing to do? That is, why do we not pursue a policy under which there would be three countries, each corresponding, I gather, to the major and, apparently, mutually antagonistic groups, the Sunni, the Shiites and the Kurds?

Early on there was some minimal discussion of this idea, but, if memory serves, it was quickly rejected. It was thought that full independence for the Kurds (apparently they are already semi autonomous, correct?) would cause Turkey heartburn for fear that its own Kurds would then demand independence. (The fact that we might be able to, in effect, bribe Turkey, just as we bribed Pakistan to help us in the war on terrorism, bribed South Korea and the Philippines to help us in Viet Nam, and have bribed one country after another to see it our way for over 50 years, seems not be have been considered (perhaps because of the Turks’ "uncooperative" refusal to give our troops passage to Iraq).) The idea of a three state solution then disappeared from view (although, again if memory serves, a short while ago there was an article which mentioned it (favorably on the merits, I think) in The New York Review of Books).

But now that Bush has led us into what looks like an ever deepening disaster and perhaps even a looming civil war in Iraq, isn’t it time to reconsider an idea that seems pretty logical? If there were a state for each of Iraq’s three major groups, wouldn’t each group have the control it desires over its own future. Wouldn’t this fact possibly put an end to insurgency or, at minimum, give each group an interest -- that it would act on -- in putting down insurgents and terrorists within its own, now independent territory?

And wouldn’t the three state solution give our politicians a graceful way of having America leave Iraq and putting George Bush’s debacle behind us? Most American politicians -- who are leading the views of most of the American people down the wrong path entirely -- cannot get through their thick heads a lesson of Viet Nam: when you have made a horrible mistake, just leave before you make things a lot worse (as Reagan did when the Marine barracks were blown up in Lebanon). (This is a lesson that businessmen and other private groups often are all too aware of, because their businesses or institutions may collapse if they don’t follow it.) American politicians need to be given a plausible excuse for doing the right thing -- they seem incapable of doing it just because it is the right thing. So wouldn’t creating three states and putting each of the three major groups in charge in its own state, be a logical solution/excuse that would enable our politicians to withdraw our soldiers quickly from Iraq?

And why, incidentally, is John Kerry not sponsoring this idea, instead of merely being Bush light, a semi Bush clone, when it comes to Iraq? Maybe Bush is too far down the wrong road -- too far gone one might sarcastically say -- to now adopt this seemingly logical three state solution. But why not Kerry?

This posting, as the reader can see, is in essence a series of questions, beginning with the initial question of why don’t we pursue a three state solution in Iraq. The writer is certain of nothing, but simply has questions. The views of readers on these various questions would be welcome.^*

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*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Sent: Monday, September 27, 2004 12:19 PM
Subject: Re: Shouldn't We Consider A Three State Solution In Iraq?
Larry: I think your stuff is right on the mark and needed. Keep it up.

Ira Berkow

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Sent: Monday, September 27, 2004 1:13 PM
Subject: Re: Shouldn't We Consider A Three State Solution In Iraq?
Dear Larry:
It seems to me, that aside from the religious issues, at the heart of the matter are three issues. No. 1 is OIL. Who gets ownership of the black plasma? No. 2 is OIL. What happens if the wells fall into the hands of the fanatical religious types? No. 3 is OIL. How are our petroleum needs resolved by a three-State solution? Some toil over oil, while others boil over oil. Both groups are loyal to oil, especially oil on their soil. As my old friend Doyle used to say, oil is the moyel that Arabs use to uncoil the royal.
Hoyl (nee Hoy)

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Sent: Monday, September 27, 2004 1:48 PM
Subject: Re: Shouldn't We Consider A Three State Solution In Iraq?


Dear Larry --

A three-state solution for Iraq makes so much sense that you can be certain it will never transpire. Also, many questions. Would each state have to be a democracy favorable to the US for it to satisfy the Bushies? And who says they want demoracy anyway? Here's a quote from the Roman historian Sallust:

"Only a few prefer liberty -- the majority seek nothing more than fair masters."

...

Stan

===
Sent: Monday, September 27, 2004 1:56 PM
Subject: Re: Shouldn't We
Consider A Three State Solution In Iraq?

One more thing: Asking whether we have already gone too far down the road reminded me (but not until I sent my first e-mail) of the shortstop who made four errors in one inning. The manager sent in a replacement who made an error on the very next ball hit to him. The new shortstop explained to the manager: "The first guy fouled up that position so bad that now no one can play it."

Cheers.....

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From: Dean Lawrence R. Velvel
To: David Reiter
Sent: Tuesday, September 28, 2004 10:46 AM
Subject: Re: Shouldn't We Consider A Three State Solution in Iraq?


Dear David:

I greatly appreciate your very thoughtful and highly knowledgeable e-mail. It has been posted.

You are quite right in saying that there are lots of countries with "divided ethnic and religious groups" and that the great problem is to figure out when each should or should not have its own nation.

Larry Velvel

From: David Reiter
Sent: Tuesday, September 28, 2004 9:02 AM
Subject: Re: Shouldn't We Consider A Three State Solution in Iraq?

Dear Dean Velvel:

It certainly makes sense to consider a three state solution, but there are problems with that also. Iraq is not the only country with divided ethnic and religious groups. Other examples are Yugoslavia with 6 or 7 competing groups; Rwanda with Hutu's and Tutsi's, Indonesia, many of the Russian Republics, etc. etc. Well, you get the idea. I don't think it is feasible or desirable for every group to have its own country, but I don't have an answer as to when you decide whether that is the best solution or not.

As you correctly mentioned in Iraq, the Kurds are spread out in Syria, Turkey, Iran and Iraq. In their case, it certainly seems logical to create an independant Kurdistan. I think it is more problemnatic in trying to split the rest of Iraq into Sunni and Shiite. We have to remember that many of the Arab states were artificial creations in the 1st place.

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From: AJKreiman
Sent: Monday, September 27, 2004 6:35 PM
Subject: Re: Shouldn't We Consider A Three State Solution In Iraq?


WHAT HAS LOGIC GOT TO DO WITH BUSH? THREE STATES ARE MUCH LIKE THREE COINS IN THE FOUNTAIN, EACH ONE........TRA LA LA

Nazi Views. American Views. American Actions.

Dear Colleagues:

I.

In view of the ease with which Lyndon Johnson, Richard Nixon and George W. Bush took this country into war, or kept it in war, by means of distortions, exaggerations and outright lies, it was startling to have learned recently that the comments below were made by, of all people, Herman Goering. He made them in his cell at Nuremberg in a conversation with an American psychologist, G.M. Gilbert, who recounted them in a 1947 book entitled Nuremberg Diary (Farrar, Straus & Co., pp. 278-179), (the italics in the quotation are mine):

We got around to the subject of war again and I said that contrary to his attitude, I did not think that the common people are very thankful for leaders who bring them war and destruction.

"Why, of course, the people don’t want war," Goering shrugged. "Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece. Naturally, the common people don’t want war; neither in Russia nor in England nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship."

"There is one difference," I pointed out. "In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare war."

"Oh, that is all well and good, but, voice or no voice, people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

II.Recently, The Chronicle Of Higher Education carried a lengthy story about several conservative professors who, it is said, have a hard time of it because they have few or no compatriots in their institutions or are assailed by liberal students. One of the stories was about a Berkeley law professor named John Yoo. Yoo was one of the authors of the memoranda saying that the Commander-in-Chief has the authority to authorize torture notwithstanding the contrary rules of domestic and international law, and that his authorization would immunize the persons who engage in torture. These memoranda were, of course, disgraced almost as quickly as they became public. But that a law professor would write them, however politically conservative he may be, is itself a disgrace, and that Berkeley would keep such a person on its faculty after his action became known is equally a disgrace. Generally I am all for having more conservatives on faculties, and there are several in our school’s small group of faculty members, but this fellow Yoo should be cashiered forthwith. He is not a mere conservative but, in effect, is some kind of fascist. (Nor is it easy to understand how The Chronicle could pick such a person as someone who is "put upon" by the liberal camp. What’s the matter with those people at The Chronicle anyway?)

In connection with the position espoused in the infamous memos of which Yoo was one of the writers, it is, at minimum, interesting to have read something that István Deák recently wrote in The New York Review of Books in a review of a book with the self explanatory title of The Origins of the Final Solution: The Evolution of Nazi Jewish Policy, September 1939 - March 1942. Discussing the horrible murders of Jews and Russian civilians, often by the German army, and the agreement of top army leaders with policies of extermination, Deák said the following (again the italics are mine):

The army high command, again surrendering to Nazi leaders, agreed that the urisdiction of the military courts should be restricted to internal army matters, and that no officer or soldiers could be held responsible for killing a Jew or a Russian civilian.

That no officer or soldier can be held responsible for killing Jews or Russians sounds remarkably like saying the Commander-In-Chief can authorize torture despite legal strictures, and immunize the torturers, does it not? Perhaps this makes it clear why I say that, in view of his memos, John Yoo is some kind of fascist. Berkeley should be ashamed of itself for not firing him.

Yoo’s case, by the way, makes an interesting contrast with the plagiarism case of Harvard Law Professor Charles Ogletree. Those who read this blog know that this author has severely criticized what Ogletree did, especially his apparent use of others -- his assistants -- to write parts or all of his book for him. I think his conduct merits the utmost censure, and apparently Harvard may take at least some action in his case. But tell me: just how is what Ogletree did worse than a law professor writing memoranda saying that the Commander-in-Chief can authorize torture, and immunize the torturers, despite the contrary strictures of both domestic and foreign law? It is obvious, of course, that the two situations differ in many respects, and call differing values and ideas into play. But the question I ask is not how are they different or the same. It is, rather, how is what Ogletree did worse than what Yoo did? Especially since Americans did engage in torture.*
_________________________
*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Via E-mail
September 23, 2004

Dear Mr. Grandel:

Thank you for your e-mail. I appreciate your having taken the time to reply to my posting, and shall post your reply as well as this response.

I am afraid that it is now well established that Bush and his colleagues vastly exaggerated and distorted the WMD situation regarding Iraq, even if they did not lie outright in the sense that they themselves may have believed what they were saying (albeit believing what you are saying because you want to believe it is quite a different thing from believing it because evidence compels the belief). In addition, several other countries were far more cautious than our government about forming the judgment that Iraq had WMDs. So sad to say, you see, Goering’s comment that leaders can drag countries into war on false claims is all too true of America, not just other countries. And you have not forgotten, have you, that Lyndon Johnson dragged us into war by telling fictions about supposed attacks on American destroyers?

As for Professor Yoo, there are some things that even lawyers shouldn’t do. Claiming the Commander-in-Chief can ignore the law by authorizing torture with impunity is surely one of them. Placing the Commander-in-Chief above the law was, indeed, one of the reasons given in the Declaration of Independence for the break with England. Do you think a law professor should be able to argue with impunity, and with serious effects in the real world rather than just as some professional abstraction, that a Commander-in-Chief can break the law by authorizing torture? If so, why not outright murder? Why not whatever he wants? As for democracy, it would be gone.

I do not know what penalty would be appropriate for Professor Ogletree. Conceivably it could depend on whether his actions were common among professors or were, rather, those of an outlier. But whatever penalty may ultimately prove to be warranted in Ogletree’s case, there are, as said, some things that beyond doubt are not forgivable, even for a lawyer. Urging the Commander-in-Chief that he can ignore the law -- a position which is the first step toward destroying civilian control and democracy -- is surely one of them. Perhaps you may be aware, incidentally, that military lawyers were, for several reasons, one of the groups most outraged by the memos that Yoo co-wrote.
Again, I appreciate the fact that you took the time to reply to my postings.

Sincerely yours,
Lawrence R. Velvel, Dean


----- Original Message -----
From: Troy E. Grandel
To: velvel@mslaw.edu
Sent: Tuesday, September 21, 2004 9:55 PM
Subject: Nazi Views. American Views. American Actions.
Dear Dean Velvel:

I read your recent post, and I think you very wrong in both parts.

While interesting, the Goering quotes are irrelevant. With these quotes, you seem to be saying that all of us are just doing President Bush‘s bidding, and that he is just dragging us along into war. Goering said that if a leader says that people are being attacked, the people will be dragged into war. The problem is that Bush didn’t just say we are being attacked, we were attacked. Remember 9/11? 9/11 may not have involved Iraq directly, but, if Bush lied to us about Iraq, then so did Clinton, the United Nations and every major intelligence service in the world, all of whom said that Iraq had WMDs. Bush did not just tell us Iraq was ignoring UN resolution after UN resolution; Iraq did ignore those resolutions. Your linking Bush to the Nazis just doesn’t work.

No wonder conservative professors are in fear. You advocate that Berkeley fire Professor Yoo, yet he did nothing illegal; he simply acted as an attorney and argued a point of law. You just don’t like his conclusions. And, are his conclusions not protected by freedom of speech? Nothing changes since some “torture” was actually committed. Do you really feel that humiliating some prisoners is even remotely similar to the torture that Hussein used to commit? Also, the individuals responsible for the Abu Ghraib torture are being prosecuted, so it is a moot point anyway. Professor Ogletree committed an act that, if he were a student, would probably get him expelled. It is an act of extreme dishonesty. Joe Biden’s presidential campaign was destroyed one year due to plagiarism. Plagiarism is a serious matter. For a professor, let alone a law professor, to have such an ethical breach is reprehensible, yet you do not seem to be calling for Harvard to fire him. It seems that you are operating with a double standard.

Very truly yours,

Troy E. Grandel

Re: ...The Ogletree Transgression

Sent: Friday, September 24, 2004 9:19 AM
Subject: The Ogletree Transgression
Dear Lawrence

I find your blogged comments on the Ogletree affair most perceptive. Academic ghost-writing has indeed become a plague, and does indeed point to a wider cultural corruption associated with the cult of celebrity. But one thing you don't comment on, which I find equally revealing about contemporary civilisation, is that the alleged wrong was apparently drawn to the attention of Ogletree and Balkin by anonymous letters. I also see that someone going by the name of OgletreeSceptics, who seems to regard himself/herself as a kind of masked avenger, is now circulating anonymous emails about the case. Such behaviour, although apparently widespread, is exceptionally cowardly. If one won't or can't cast one's aspersions in the open, one shouldn't cast them at all. As between someone whose writings are partly ghost-written and someone whose accusations are entirely unsigned, I know which I would rather have as a friend.

Best wishes
John Gardner
http://users.ox.ac.uk/~lawf0081/

---

-via eMail-
September 14, 2004

Dear Professor Tribe:

Thank you for your email. I would like to post it, along with this response, but will not do so if you object. Please let me know if you do object.

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

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

Sincerely yours,

Lawrence R. Velvel
Dean

---

Dear Dean Velvel:

I very much appreciate your letting me see both your long and thought-provoking statement and Michael Parenti's shorter but no less pointed critique. The fact that Mr. Parenti takes a humorous jab at me as his parting shot doesn't in itself lead me to put down the other matters on which I'm working. Some of those matters are quite pressing and involve writing deadlines that I have to give priority over my thus far entirely tangential involvement in this sad episode. I like Charles Ogletree as a person and continue to have enormous respect for much of the important work he has done as a lawyer and as an academic. What I told the Boston Globe about the way in which he has overextended himself was not intended to be a complete explanation or justification of anything but a purely factual description. I don't see it as my place either to offer excuses for my colleagues' and friends' missteps or to pile on when the world is already heaping calumny upon them. That I personally believe Professor Ogletree to be a person of great talent and basic integrity, when it's not my role to judge him, seems to me a fact that shouldn't draw me involuntarily into a protracted exchange of views simply because I was willing to answer a couple of questions from a newspaper reporter and tried to do so as truthfully as I could.

As to the larger problem you describe -- the problem of writers, political office-seekers, judges and other high government officials passing off the work of others as their own -- I think you're focusing on a phenomenon of some significance. I do wish, though, that its exploration could be separated, in the interest of basic human kindness and simple decency as well as that of accuracy, from public excoriation of individuals and episodes about which your knowledge is necessarily limited.

Best
regards,

Larry Tribe

Laurence H. Tribe Carl
M. Loeb University Professor Harvard University Hauser Hall 420 1575
Massachusetts Avenue Cambridge, Massachusetts 02138

The Ogletree Transgression

Dear Colleagues:

It has now been reported that Charles Ogletree, a celebrity law professor at Harvard (which has several), plagiarized the six paragraphs which open Chapter 16 of a book he recently wrote called All Deliberate Speed: Reflections On The First Half Century of Brown v. Board of Education. I read and enjoyed the book earlier this year, but am going to say here some very harsh things about Ogletree’s plagiarism and what it represents.

The pertinent facts, as put together from a contrite apology from Ogletree appearing on the Web and from a Boston Globe article, are, in brief, these: Ogletree’s publisher, W.W. Norton, was pressuring him to finish his book in time for the 50th anniversary of Brown v. The Board. Ogletree had (at least) two assistants helping him with the book. (The Acknowledgments in the book implicitly suggest a possibility that there could have been a lot more than two, but who knows?) "During the final stages of the preparation . . .", said Ogletree, "material from Professor Jack Balkin’s book [Balkin is a Yale law professor] . . . was inserted in a draft section of the book by one of my assistants for the purpose of being reviewed, researched and summarized by another research assistant with proper attribution to Professor Balkin . . . . [Closing quotation marks for the Balkin material were dropped, however.] Unfortunately, the second assistant, under the pressure of meeting a deadline, inadvertently deleted this attribution and edited the text as though it had been written by me. The second assistant then sent a revised draft to the publisher . . . which included the material from Professor Balkin’s book, without identification or attribution. When I reviewed the revised draft I did not realize that this material was authored by Professor Balkin."

The plagiarism problem was subsequently called to parties’ attention by anonymous letters received by Ogletree and Balkin. Sometime thereafter the Dean of Harvard Law School, Elana Kagan, asked former law dean Robert Clark, and former law dean and University President Derek Bok, to investigate. Bok and Clark interviewed the dramatis personnae and reviewed documents that showed how the error arose. "Based on their report," said The Boston Globe, "Kagan deemed the case ‘a serious scholarly transgression,’ according to [law school spokesman Michael] Armini."

Bok, however, told The Globe that "There was no deliberate wrongdoing at all." Rather, "It was a case of publishers insisting on a tight deadline" in order to get the book out in time for the anniversary of Brown. Facing a deadline, Bok said, Ogletree "marshaled his assistants and parceled out the work and in the process some quotation marks got lost."

Ogletree himself has apologized to Balkin, and said in the web posting that he had "delegated too much responsibility to others during the final editing process. I was negligent in not overseeing more carefully the final product that carries my name."

Ogletree has received sympathy from some colleagues at Harvard. Laurence Tribe, himself one of Harvard’s celebrity law professors, told The Globe that "‘It clearly represents the fact that because he so often says yes to the many people all over the country who ask for his help on all kinds of things, he has extended himself even farther than someone with all that energy can safely do.’" The Globe itself referenced Ogletree’s extensive work in the public arena, calling him a "celebrity professor" and saying he is "the author of numerous books, makes frequent media appearances, and has taken on high-profile causes such as representing Anita Hill during the Clarence Thomas hearings. The National Law Journal has named him one of their ‘100 Most Influential Lawyers in America.’"

The Globe also wrote four paragraphs placing Ogletree’s plagiarism in the current context of "heightened sensitivity in academia after several celebrated cases of misuse of research material." It cited and briefly discussed the cases of Brian VanDeMark, Doris Kearns Goodwin, Stephen Ambrose, and Michael Bellesiles.


* * * * *
Those are the major facts, at least as disclosed so far. But what, if anything, is their meaning? Though some may think this writer’s views overmuch, to me the entire incident further stimulates longstanding concern about, and may in fact reflect, forms of corrupt conduct that have become pervasive in America today. Not just pervasive in academia. Pervasive in America. The incident implicates possible dishonest conduct (wholly aside from advertent or inadvertent plagiarism). It portrays lack of diligence and competence. And it illustrates that rewards accrue to the celebrified, not to the honest and competent.

Let’s start with lack of honesty. If memory serves, Justice Brandeis once said that the Supreme Court was respected because it was the last place in Washington where people did their own work. Well, they haven’t done their own work at the Supreme Court either for the last 50 years or so. The Justices’ major item of work -- their opinions -- are drafted by others, by clerks whose names are publicly unknown.

Everywhere in this country underlings write the speeches, the briefs, the articles, the books, the p.r. statements for which bosses, superiors, people on top take the credit. Politicians, university presidents, corporate executives, partners in law firms -- wherever you turn people on top take the credit for the work of others. There are a million reasons (read excuses) for this: The top guys are too busy to do the work themselves. Or their talents lie elsewhere. Or it’s the job of the flack to do this work. Or the top guy told the flack what to say. Or Mister Big may have reviewed the work, may sometimes even have edited it, and agrees with everything he has put his name too. Or the flack was paid to write the big shot’s book for her. Or this is just the way the world works and everybody is doing it.

The justification -- the excuses -- don’t matter. It’s all a form of dishonesty: it all constitutes taking credit for work that was done by others.

Does an author need an editor? Sure. Does a writer, a businessman, a judge have to discuss ideas with others and to perhaps modify or change her own views accordingly? Of course. But editing and discussions are worlds removed from putting one’s own name to an idea, a project, a writing that was the work of another. Did Max Perkins, after all, claim to be the author of Look Homeward, Angel just because he edited the hell out of Thomas Wolfe’s book?

Which brings me to Ogletree’s work. He says he had two assistants helping him with the book. He says one was inserting material in the book. The other, he says, was reviewing, researching and summarizing the material for inclusion in the book -- it sounds like he was defacto putting the material into the final version of the book -- and would send manuscript to the publisher. What these two assistants were doing sounds awfully much as if they were writing the book, or at least some parts of it. Isn’t that what it means when someone inserts material, researches it, reviews it and edits it before sending it to the publisher, and then does send it to the publisher? Yet only Ogletree’s name appears as the author. So how much of this book did assistants insert, review, research, summarize and send to the publisher? How much, if any, of the rest of the book, in other words, was defacto written by someone other than Ogletree, although only Ogletree’s name appears as the author? Is it even possible -- though the very idea seems nuts -- that even sections detailing Ogletree’s own life were written by others, presumably after Ogletree gave them the pertinent facts?

A colleague of mine, who insists that his name not be used, suggests the possibility that people will now go over All Deliberate Speed with a fine tooth comb to look for other instances of possible plagiarism. Beyond that, he says, people may start going over Ogletree’s previous work with the same fine tooth comb. And, this colleague says with a fine but perhaps not wholly misplaced cynicism, it is a truism that people who in one place do something like what occurred here are bound to have done it elsewhere too.

But apart from whether the colleague is right or wrong, perhaps you can see now why this author’s view is that, even if it proves to be confined to what is known so far, the present incident of plagiarism may implicate, may reflect, some of the basic dishonesty which pervades this society because so many people in high places, or at least in positions of power, take credit for work that is actually done by others.

Now let’s turn to diligence and competence. Ogletree says that when he "reviewed" -- note the word: "reviewed," not "wrote" -- when he "reviewed" the revised draft he did not realize that Professor Balkin had written the first six paragraphs of a chapter. The first six paragraphs are approximately two and one-half pages long; by my secretary’s count, they are 824 words long. Beyond this, the chapter, carrying the significant title Meeting The Educational Challenges of The Twenty-First Century, is the initial chapter of an entire section of the book, called Part VI.

Ogletree is a man sufficiently brilliant that he is a professor at the Harvard Law School. Yet he read a draft of his own book so sloppily, so carelessly, that even though the six paragraphs in question are two and one-half pages and 824 words long, and even though they introduce an obviously significant chapter which itself begins an entire section of his book, he did not realize that he himself had not written those paragraphs? A man of his acumen didn’t realize that? Boy, that must have been some sloppy reading! It must have been a reading that was neither diligent nor competent, two qualities vastly lacking in America today.

Ogletree says that he "delegated too much responsibility to others during the final editing process" and "was negligent in not overseeing more carefully the final product that carries my name." This is hardly, shall we say, a maximal way of putting the matter, not when a man of his brilliance doesn’t recognize that six paragraphs that are 824 words and two and one-half pages long, and which introduce a chapter and a section of his book, were not written by himself.

But beyond the issues of diligence and competence implicated by Ogletree’s statements, additional questions are also raised by what is said to have happened. Ogletree says the mistake happened in "the final editing process." So let me get this straight: in the "final editing process" (emphasis added), assistants, not Ogletree but assistants, were finalizing and adding significant chunks of material? And not just any material, but material that introduced a chapter which itself was the initial part of a section of the book? This was being done by assistants? In the final editing process? Doesn’t all this raise the question of who the hell really wrote this book which, or at least wrote portions of this book which, in Ogletree’s words, "carries my name." Doesn’t it raise, that is, the very same issue of honesty discussed earlier?

Moreover, doesn’t the same question of who really wrote portions of the book arise from what may be very clever wording in Ogletree’s web posting? Ogletree doesn’t say "When I reviewed the revised draft, I did not realize that I was not the author of this material." Such a statement would of course imply that he was the author of the rest of the material in the book. But rather than say that, Ogletree said "When I reviewed the revised draft I did not realize that this material was authored by Professor Balkin." (Emphasis added.) Well, how in hell was Ogletree supposed to know that Balkin authored the material (unless Ogletree is claiming that he read Balkin’s book and has a near photographic memory)? Ogletree’s wording smacks of being too clever by half. It smacks of wanting to cover up the fact that he knew and expected that parts of his book were written by others -- by assistants -- and that the problem here was that he assumed the six paragraphs had been written by an assistant while being unaware that they had actually been written by someone wholly unconnected with him. I cannot say whether this logic is true in fact, but it is certainly plausible, and it further stokes the question of who did write portions of this book.

Let us turn now to celebrification. That Ogletree is a celebrity is not open to question. The Globe did not neglect to mention this, and even the compassionate pseudo defense it printed from fellow celebrity professor Larry Tribe implicates it. Tribe in effect said Ogletree is overextended because he so often aids "people all over the country who ask for his help on all kinds of things" -- only celebrities, in this case celebrity lawyers, get such requests from people "all over the country." Indeed, though Ogletree’s celebrity status is not open to question, it is open to question whether W.W. Norton would have been his publisher if he weren’t a celebrity, if he were just Joe Shmo from, say, the University of Akron Law School or the Kansas University Law School. We all know, don’t we, that that is the way the world has worked for about the last 40 or 45 years? The TV people, the magazines, the newspapers, the major book publishers all lust after the celebrities. Universities seek them out to be presidents. Huge companies make them Chairmen of the Board. Publishers ask them to put their names to books that in effect are written by others. Competence does not govern any of this. It is driven by celebrity instead.

When it comes to Ogletree’s book, its existence and its publisher may be owing to his celebrityhood, and the method of producing it which he describes is typical of so many books allegedly authored by celebrities, i.e., other people apparently did much of the work. His book, that is, may exemplify, at least in part, the celebrityhood that has afflicted this nation since John Kennedy ran for President and that pushes out competence, diligence and honesty as methods of advancement. (Not for nothing was there a joke about one celebrity law professor which ran as follows: "The most dangerous place in the world to be is between [the particular professor] and a television camera." The professor presumably understood the need for and certainly lusted after publicity; his exceptionally high competence and diligence were insufficient to obtain adequate success.)


* * * * *
Having written that the entire Ogletree episode implicates fundamental problems cursing this country, let me ask a question regarding the inquiry that was made about it. According to both The Globe and Ogletree’s web posting, Dean Kagan asked two former deans, Derek Bok and Robert Clark, to write a report. On the basis of that report, says The Globe, the Dean "deemed the case ‘a serious scholarly transgression.’" Yet in The Globe Bok defended Ogletree, saying "There was no deliberate wrongdoing" and it all arose from a tight deadline, the consequent marshaling of assistants, etc. What we do not know, however, is what the Bok/Clark report itself says, or why Dean Kagan feels there was "‘a serious scholarly transgression.’" To what extent did the Bok/Clark report ignore the dishonesty, lack of competence and celebrification which were at work here and which are present almost everywhere in America. To what extent, that is, are these elements of American life so entrenched, so taken for granted, in American life generally, and in academia in particular, that Bok and Clark did not even think it worthwhile to mention them and may not even have thought about them? Conversely, to what extent, if any, may Kagan have thought that what was revealed here was so lacking in diligence and competence that it is culpable? And did she give any thought to the dishonesty of what was being done and to the effect of celebrification? This writer cannot remember any academic who has raised these problems, but perhaps that is only my own ignorance or failure of memory. Has Kagan raised them, at least privately or at least in her own mind?

---

*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

The Ogletree case is astonishing for another reason too. Presumably, his assistants were top Harvard law students, i.e., the creamiest of the cream of the crop. Yet in this instance they displayed a distinct lack of basic writing, editing, and even time management skills! Perhaps U.S. higher education is in even worse shape than I feared?

--
Robert E. Wright, Ph.D.

======

Sent: Monday, September 13, 2004 3:03 PM

Dear Larry (if I may go to first names with you) and bloggers:

There is another critique one might suggest about the Ogeltree case: his explanation is totally lacking in credibility. He claims the two and a half pages of Balkin's writing were originally inserted as a direct quotation, but closing quotation marks "were dropped"--note the use of passive construction here; it evades the question, dropped by whom?

But a quotation of that length would either be indented and be without quotation marks or it would have quotation marks at the beginning of each of the three paragraphs, without quotation marks at the close of the first two, only at the close of the entire quotation of course. So more than the closing quote marks were dropped. The opening marks and the secondary marks of the subsequent paragraphs also must have been inadvertently dropped. That's a lot of droppings.

What do the assistants have to say about this? which assistants? Did they really just stick a long selection from Balkin onto the opening of this crucial chapter with only a citation and without proper indentation or quotation marks?

And how did the citation get removed? Why would "the pressure of meeting a deadline" (what crap, as if this were a live network show about to go on the air in 10 seconds) cause the second assistant to delete the Balkin citation? Were any other attributions deleted because of deadline pressure? Why would deadline pressure make you start deleting your endnotes?

And what did the deleted endnote indicate? that Balkin was the author of those pages? or that he was just a source? and it had all been "edited" as Ogeltree claims. If edited, which means put into one's own words (in this case an assistant's words) then it's not quite plagiarism--in which case, why apologize for the closing quote marks that "were dropped."

It seems to me that until we hear from the assistants we cannot conclude for certain that (a) Ogletree has other people write his stuff for him, or (b) that Ogletree's story is just a smokescreen, a way of distancing himself from the fact that he plagerized Balkin. But I am inclined toward (b) because his explanation sounds like just so much dissembling. I think there never were any quotation marks inserted or dropped; there never was any attribution, and there never were any assistants who did all the sloppy "mistakes."

There is one merry spot in this sad story: I'm referring to Tribe's explanation that it was Ogeltree's excessive generosity and devotion to others that caused him to get overloaded and confused about things. Now that really gave me a chuckle. Hey, what are friends for if not to help you cover your ass?

- Michael Parenti

Three Essential Values

Dear Colleagues:

It has been said that a wonderful thing about the Internet is that it gives a voice to people who otherwise would have none in American society. It gives a voice to persons who may, who hopefully, have something to say, but who are shut out of the traditional mass media: radio, TV, newspapers, and magazines. The voice may be small, although some people have built an Internet readership of tens of thousands. But however small, the voice now exists where it didn’t before.

This posting is written in that spirit. It is written in the spirt of a small voice saying what the author believes to be the most important point that he can contribute to any discussion of public or private life. It is a point that perhaps sounds banal, simpleminded. It is a point that in certain respects is discussed all the time, yet is too rarely heeded and seems never to be truly accepted.

As is always true, we hear a lot these days about the inevitably transitory issues of the moment. Today those issues include the war in Iraq, terrorism, particular economic policies, lack of medical insurance, and the conservatives’ call for acceptance -- or imposition -- of their values regarding religion, abortion and family life. But although some of these issues will last or have lasted for awhile (albeit they nonetheless are transitory), in a larger sense they are not of the essence, are not fundamental. There are, I think, only three matters that are truly fundamental -- that truly determine the kind of society we have and the kind of lives we will lead as individuals, and that are permanent matters of permanent relevance. The three matters can justifiably be called values, truly basic values.

The three values I speak of are honesty, competence, and at least some concern for others, not just concern for oneself alone. And of the three, honesty is the most important because, without it, competence is not attainable and concern for others is less likely by far because one is not likely to know, understand or sympathize with the position of others.

If one looks back over, say, the last 50 years, it seems inevitable to conclude that much, even most or all, of our public problems stem from some form of, some level of, dishonesty. Sometimes the dishonesty takes the form of outright lies. Sometimes its form is lack of disclosure of the truth or lack of full disclosure of the truth. Sometimes it comes as spin. Sometimes it comes as what has been called, in a forthcoming book, "cornball crapola" -- standardized words or phrases that sound good but are false and are used to cover up the truth.* There was some form, some level, of dishonesty with regard to Viet Nam, Watergate, the Iran-Contra scandal, the savings and loan debacle, Monicagate, the second Iraqi war, Enron, Tyco, Global Crossing, American politics and civic life generally, and so on ad nauseam. Had full bore truth been the ruling desideratum in these matters, events at issue likely would never have occurred. It was some form or level of dishonesty that made them possible.

What is true of the public life is true as well of private lives. If a reader looks back at his or her own life, I would venture that as often as not he or she will find that problems and traumas were caused by, or at minimum were necessarily accompanied by, some form or level of dishonesty.

Honesty is foundational. Without it disasters occur, and without it there can be no competence. For competent thought and action depend on knowledge of the truth of a situation, knowledge of its actual facts. Conversely, ignorance or distortion of the truth and the facts lead only to mistakes and disasters (viz. Viet Nam or the current debacle in Iraq). Yet, for all the lip service paid to honesty -- and lip service is usually all it is -- it is relatively rare that one runs across a philosophy which holds that honesty is foundational and therefore is the single most important value of any. The idea that trustworthiness is of the essence was part of 17th Century England. There have been some philosophers and ethicists who stress the need for honesty, e.g., Sissela Bok, Michael Josephson. And recently Lewis Lapham, in Gag Rule, has opined that candor is crucial to our national life. But beyond these examples, and despite omnivorous reading, this writer is hard pressed to think of other examples of eras or persons that have held a philosophy close to the idea that honesty is the crucial fundament, the overriding necessity.

Having spoken of the necessity of honesty, let me now speak briefly about competence. Competency is a value whose necessity is widely acknowledged, is at least given lip service as being necessary for success. Yet it is in too modest a supply in a world where advancement so often goes to the merely personable, the sycophant, the person who can work the room, the smoothie, the person who knows how to maneuver in a bureaucracy, the person who is a friend. It is too rare in a world where people know that these traits, not competence (nor its inherent predicate, diligence), are how one advances, and where they act accordingly. So the value of competence is one that is often honored in the breach.

The need for competence in order to achieve success is, I note, of peculiar relevance to public life today. We are told that 9/11 was caused not by incompetence, but by failure of governmental organs to communicate with each other. We are equally told (as always) that the remedy is a new structure for intelligence operations. But the truth is that incompetence was the reason for 9/11, and all the new structures in the world won’t solve the problem we face if incompetence persists.

With regard to incompetence supposedly not being the reason for 9/11, we are told that nobody could foresee the use of airplanes as flying bombs to destroy structures. Nobody could foresee this??? How could that be when a bomber flew into the Empire State Building in World War II, when hundreds of Japanese Kamikaze planes tried to fly into American ships and some succeeded, when a private plane flew into the White House, when various government people knew of an effort to fly a plane into the Eiffel Tower, when various governmental people had heard of alleged plots to fly a plane into CIA headquarters, when it was known that there were Muslims who were learning to fly planes at American flight schools. Despite all this, nobody in the government could foresee the use of a plane to destroy structures??? That was sheer incompetence and stupidity. Incompetence was the reason for 9/11, and if it persists we will have more disasters of one sort or another. For that incompetence leads to disaster is virtually a law of life.

Lastly, a few words about caring for others, not just for oneself. This value, too, is spoken of favorably but is most often honored in the breach in a society where, since at least 1981 (as previously in the gilded aged and the 1920s), unbridled greed has become the ruling principle and plutocracy and oligarchy have become dominant features. Many people find that unbridled selfishness is not a satisfactory way to lead a personal life, and at the civic and political levels it has in the past led or contributed to such world-shaking events as the French Revolution and the Great Depression, and to the stock market catastrophe of the early 2000s. No good can come to a society where lack of concern for others is the guide to action -- whether the action be domestic or, as the world’s increasing hatred for us shows, foreign.

Let us conclude with a political thought stemming from all this (although what has been said here is true wholly independent of politics or party, and could be adopted by any person or party). The conservatives in the Republican Party, from George W. Bush on down, have for years been on a crusade to impose on all of us values that offend many of us. Many are offended by the importing of religion into public life, by the conservatives’ use of their particular religious views as reasons why government should ban abortions for anybody and stem cell research for everybody and should ban gay marriage, and by the conservatives’ universalist conception of American values and their foolish conception of permanent American hegemony maintained by war whenever necessary. Equally offensive to many are the hypocrisy, stupidity, and deception the right wing conservatives have shown in so many things, and the oligarchic, plutocratic and dynastic nature of their policies and views. But nobody has arisen to challenge the values they put forth with counter values. John Kerry has occasionally spoken of values, though to me the values he purportedly speaks of usually sound more like particular political and economic policies than fundamental values. Be the latter point as it may, it is long past time for there to be a politician or politicians who put forth counter values in challenge to the values that the right wing has used to reach and maintain power. Such a politician or politicians could do worse than stressing -- and, crucially, living up to -- the values of honesty, competence and concern for others as well as oneself.**

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*The book, which is the third volume of a quartet called Thine Alabaster Cities Gleam, is entitled The Hopes And Fears Of Future Years: Loss And Creation (University Press of America).

**If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

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September 02, 2004

I don't know who is on the list of recipients of these positngs, but I will add 2 cents worth for anyone who cares.

I think that I would include Mercy in my short list of crucial values.

Bob Seibel
CUNY School of Law
seibel@mail.law.cuny.edu