Wednesday, September 29, 2004

"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.

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 28th 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 10th.

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.*

*If you wish to respond to this email/blog, please email your response to me at 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.



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

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