Tuesday, November 30, 2004

University Presidents Are Cashing In, While Students And Professors Get Messed Over

Dear Colleagues:

Professional and daily newspapers have recently let us know that 42 presidents of private universities and 17 presidents of public ones now make more than $500,000. In fact, seven presidents of private universities made more than $800,000 in the 2003 fiscal year, and the outside earnings of some of these (via payments made to them because they are corporate directors, for example) gave them total earnings of a million dollars or more. (Judith Rodin of Penn is said to have made $893,213 in university compensation and about $404,000 as a director of five corporations (for a total of nearly 1.3 million dollars. Boy, financially speaking, Rodin must be the original Thinker, eh?).

Presidents of public universities are no pikers either in the really big money game. Four of them are over or pretty near $700,000. Mary Sue Coleman, the President of Michigan (my own alma mater) made 677,500, which put her "only" in third place among presidents of public universities. (However, it is significant that she also gets at least $100,000 in directors fees, plus shares and stock options -- no piker Mary Joe.) The guy said to be in second place, Carl Patten, made $723,350 for being President of Georgia State University. (Georgia State?)

Ofttimes high compensation for presidents of public schools arises because they receive money from private contributions as well as public monies. (For example, of the $651,400 received by the President of the University of Texas system, $581,169 comes from private contributions; of the $549,783 received by the President of the University of Virginia, $398,362 comes from private contributions. There are many other examples, particularly including Louisville, Texas Tech, and the University of Texas at Austin.)

In fairness to the academy (if fairness is the right word), it is reported that one-third of private college presidents earned "only" between $200,000 and $300,000 in the 2003 fiscal year, and the median compensation for presidents at all public universities surveyed by The Chronicle of Higher Education was "only" $328,400. (Medians were higher in some individual regions (e.g., the South, with a median of $398,002), and lower in other regions (e.g., the west, where the median was $303,651).) Earnings of $200,000 or $300,000 are not exactly chicken feed, yet perhaps they don’t have quite as obnoxious a ring as saying a university President makes nearly $700,000 or a million dollars.

At the same time that we are hearing that university Presidents are making a fortune, we simultaneously read that professors are getting little or nothing in pay raises, and students’ tuitions are constantly going up. Perhaps Georgia can serve as a poster child here. Let me quote from the November 19th issue of The Chronicle of Higher Education:
The University of Georgia’s Mr. Adams [who earned $637,966] was the sixth-highest-paid president in the survey, and G. Wayne Clough, president of Georgia Institute of Technology, was 11th, earning $531,587. The system’s chancellor, Thomas C. Meredith, was 17th, at $501,455. Meanwhile, the system’s faculty and staff members have had no raises since October 2002, and tuition rose 5 percent last year.
On a more general note, it is said that a survey by the College Board showed that public four year schools raised tuition by an average of 14 percent last year and by another 10 percent this year.

So what the hell is going on here? Well, it’s pretty obvious, isn’t it? Some people have found a gravy train in the academic world and are riding it for all it’s worth. Presidents, of course, are not the only ones to be doing this, but they are leading practitioners. Generally speaking, in the education world of today, it is money that speaks, not education. The students get screwed, tuition wise. Large segments of the professoriate get screwed, salary wise (e.g., English professors, philosophy professors, etc.). But the presidents (and the people who run Harvard’s endowment and the football and basketball coaches) make out like bandits -- which may be what some figuratively think of some of the Presidents (or money managers, or coaches) -- and rich schools sit on enormous endowments whose huge annual incomes could each pay far more than full freight for every one of the schools’ students, while the poor cannot afford college. (Harvard’s endowment, by the way, is said to now exceed $22.5 billion. Couldn’t Harvard buy all of Iraq with that sum of money and solve one of our problems?)

Does anyone think, by the way, that Presidents have to be paid $500,000 or $700,000 or a million dollars, or else competent people won’t be Presidents? That apparently is what university trustees, who come from the vastly overpaid corporate world -- where the compensation of the top ten CEOs is said to have increased 4,300 percent since 1981 -- seek to persuade us of. They spout all the usual excuses for unconfined greed -- they tell us what a hard job being President of a university is, how time consuming it is -- it’s 24-7 -- how one has to be able to satisfy and entice so many different constituencies like donors, faculty, alumni, boards, politicians, etc., etc. "[Q]ualified presidential candidates are in short supply," and the boards "are at the mercy of market economics," are what The Chronicle says board members and educational consultants claim. This is all a species of bovine defecation, or bull roar as some used to call it in mid century Chicago.

One is tempted to sarcastically point out, of course, that if the boards and consultants are right -- if huge salaries are needed to attract people who can and will run universities competently -- then the boards are not paying enough if one judges by the continuous difficulties and disasters being experienced by universities. Maybe they should be paying not $700,000 dollars or one million dollars, but seven million or ten million dollars. Or, taking the outrageous corporate world as our guide, as the boards apparently are doing, maybe it should be several score million or one hundred million dollars. Maybe a one hundred million dollar man or woman can clean up what a mere million dollar man or woman cannot.

So much for sarcasm. The truth is that good people -- people with vision, concern, articulateness -- would serve as Presidents of universities for far less than $700,000 dollars or one million dollars, or even "just" $500,000 or $400,000. There are many such persons already serving as presidents or lesser administrators. (Remember the geographic presidential medians discussed above?) There are others who now are not even administrators who could do a fine job if they were to become administrators (and were to focus on education instead of Mammon). The claims of directors and consultants that salary elephantiasis is necessary to get good people is just another transplantation into the academic world of the uncabined corporate greed whose latest, now-20-year-long round was unleashed by Ronald Reagan in the early 1980s. He gave us, and we still have, morning in America -- morning in America for unchecked corporate greed and militarism and mourning in America for those whose values include reasonable limits on these things in the interest of a more balanced society. Balance is plainly missing today in the academic world, where Presidents grow rich, while faculty grow in the other direction, students get soaked -- ever more soaked -- students’ parents denude themselves financially to send kids to college, and lots of people can’t even afford college and are therefore shut out of a major vehicle for climbing the socio-economic ladder. Oh, well, so it goes; at least the Presidents are making money.*

*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.

Monday, November 29, 2004

The New York Times’ Slightly Inept Article On The Ogletree/Tribe Affair

Dear Colleagues:

The day before Thanksgiving The New York Times carried an article on the Ogletree/Tribe affair. With only few and minimal exceptions, the article was merely a rehash of what has been said before, extensively, in The Boston Globe, on the AUTHORSKEPTICS website, on this blog (by both the blogger and those who replied to him), and on other websites. A mere rehash does not speak well of The Times, does it, given its oft (self) vaunted ability to bring more resources to a story than anyone else can? Nor is it as if the reporter and editors had but little time to inquire into the subject. The story was in the works for a minimum of nearly one month, and, for all I know, longer.

Nor was the story wholly accurate -- after a minimum of nearly one month to inquire. It said -- with typical media deference to accomplished Harvardians like Professor Tribe? -- that he was outed after he "raised questions on a legal affairs Web site about the ‘larger problem’ of ‘writers, political office seekers, judges and other high government officials passing off the work of others as their own.’" This is accuracy worthy of The Times’ own Jayson Blair. Professor Tribe did not "raise" these questions, nor were his comments made on a "legal affairs" website. The website deals with many national issues -- "national affairs" is even in its name -- and legal matters are perhaps one of the least raised kinds of issues it deals with. And rather than Professor Tribe having "raised" the pertinent questions, he was merely replying to and for some reason felt compelled to volunteer a form of agreement with the writer who had raised the questions. In fact, Professor Tribe’s email letter, which was posted on the website, said, "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." (Emphasis added.)

Whether these mistakes in The Times’ article were the fault of the reporter or the editor cannot currently be known by outsiders, and probably never will be. The reporter knew -- or most certainly should have known -- the truth, and there is at least some additional reason to think the fault may be with the editors (although there is also some reason to think it lies with the reporter). All one can say with a degree of conviction is that the general failure to go beyond rehashing what others have already written, plus the mistakes, plus all this having been perpetrated by the supposed queen, or flagship, of American journalism, is further evidence of what some (including me) see as the wideranging incompetence of journalism today. One cannot wonder that Lee Bollinger desired to change things at Columbia’s school of journalism.

There is more to question about the article. How come The Times could quote very few people -- almost nobody -- but people from Harvard and Stephen Gillers, whom it regularly quotes. Lots of other people have weighed in on the Tribe/Ogletree matters with very pertinent comments. Are Richard Posner, Michael Parenti, John Gardner of Oxford and Yale, webmaster Eric McErlain, and numerous "unknown little people" who put intelligent comments on the Web not worth speaking to or quoting? A few weeks ago, The Times’ own ombudsman, Daniel Okrent, wrote a column that commented on The Times habitual practice of quoting a small number of favorites. Okrent even mentioned that Gillers himself had already appeared in The Times 24 times this year -- "five under his own name, the rest in pieces by Times’ writers." The article on the Tribe/Ogletree affair was just more of the same, more sycophancy to the greatly established.

It was more of the same but even worse. The Times reporter apparently was looking for someone to say that the opposition to what Tribe and Ogletree had done was simply a politically motivated attack by conservatives on two liberal icons. (The reporter even asked a pretty liberal person -- me -- whether he had assailed the two law professors’ misconduct because he was a conservative.) The reporter got what she seems to have wanted from Gillers, who said, apparently referring to an article in a conservative magazine, "‘It’s payback time.’" She also quoted Gillers as saying that the discovery of Ogletree’s transgression, and a (somewhat hiding-the-ball) statement Ogletree felt forced to issue about what he had done, were humiliation enough: "‘The discovery is the punishment,’ Professor Gillers said." So we are supposed to think that mere exposure is enough, eh? That is why Joe Ellis, a lovely guy, got suspended for a period and, I gather, lost his chair? That is why Michael Bellesiles got canned defacto. That is why Doris Goodwin Kearns lost various talking head opportunities? That is why Martha Stewart, the Enron crowd and the rest of those corporate crooks shouldn’t go to jail -- because the discovery of their misconduct is humiliation enough for them? And the oft-quoted Professor Gillers is one of our country’s leading on legal ethics experts yet? -- is perhaps the leading expert on legal ethics? Oh, boy.

And by the way, why didn’t The Times quote somebody saying, in opposition to Professor Gillers’ comment that "‘It’s payback time,’" that it doesn’t matter if the conservative magazine did or did not take out after Tribe because of a desire for payback. For Tribe, and Ogletree likewise, shouldn’t have done what they did, and deserve exposure and punishment regardless of whether they or the whistleblowers are liberal, conservative or believe that green cheese is God. (Apparently in opposition to Gillers’ view, The Times did, I note, quote Harvard’s truly estimable Professor Howard Gardner as saying that "‘When norms of scholarship are violated in a material way . . . significant consequences should follow.’")

Nor did The Times pay much attention to the much broader problem exemplified by the Tribe/Ogletree affair -- the problem responded to by Tribe -- not "raised" by him -- when he replied to another person’s posting by agreeing that a major problem exists because so many people are passing off the work of others as their own -- the work of their assistants, clerks, subordinates and others who are paid to write stuff to which the big cheeses falsely put their names. The closest The Times came to discussing this wideranging problem was by quoting -- albeit not until the very last paragraph of its article -- Howard Gardner’s salient comment that "‘Scholarship -- the core activity of the university -- cannot be delegated to assistants.’" There was, however, nothing in The Times article about the phenomenon of (mis)appropriation of the work of others outside the academic world, where such conduct is widespread. A newspaper that was home to the Rick Bragg affair -- involving the use of others’ work without attribution -- was blind to the question of (mis)appropriating the work of others? Or did those keen minded Timesmen think that the rest of us, being dolts, had all forgotten the Rick Bragg affair, so that The Times didn’t have to take account here of the general social question of people all over the United States dishonestly claiming credit for the work of others?

In its article The Times said that "Ogletree said he had been disciplined, but neither he nor Harvard would be more specific." Tribe’s misconduct, it continued, "is still under review, according to Harvard officials." All of which raises the question, of course, of just what if any punishment has been or is to be visited on Tribe and Ogletree. Has Ogletree been punished -- if in truth he was punished -- by some mere slap on the wrist? Will anything significant really happen to Tribe? Is Dean Kagan, who has been quoted as saying that what Ogletree did was "a serious scholarly transgression," nonetheless just stalling around for time, figuring, or at least hoping, that the problem will go away if enough time passes?

One can, of course, sympathize with Dean Kagan. She must be under lots of pressures, perhaps conflicting ones. She seems to know that what was done wasn’t right -- was in fact pretty bad. On the other hand, she has two of her stars involved, with sympathetic noises having been made about one of them by a third star (whom The Times also quotes or publishes at the drop of a hat). What is more, lots of commentary on the Web and elsewhere indicates that the most overarching problem raised by the whole business -- the problem of other people doing the work for which stars then dishonestly claim credit -- is very widespread in the academic world and elsewhere. (Is it widespread as well at Dean Kagan’s law school, as one suspects from various statements and occurrences?) So one can see that Dean Kagan may catch a lot of flak no matter what she does. She may catch it from the overwhelmingly huge number of denizens of the world of dishonesty, whose ox would be gored if she came down hard on dishonesty. And she may catch it from those who want to see a more honest academy, and for that matter a less dishonest America, if she doesn’t come down hard on Tribe and Ogletree. Of course, if she’s worth a damn she’ll come down hard on the dishonesty, will uphold standards, and, as for the expectable flak from those whose ox is gored, will accept the adage that one is known by one’s enemies.*

*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.

Influence of the Religious Right

Often, fiction writers have leave to portray truths that are unsavory if presented by the non-fiction press. In his novel Revolt in the Year 2100, science fiction author, the late Robert A. Heinlein, describes, in chilling detail, a future United States ruled by a religious clique of the most intensely conservative types imaginable. This story is on the order of 40 years old. What is chilling is that we are not 140 years from it as Heinlein posited, but quite possibly 20 years or fewer.

The Southern Confederacy was bolstered by the pulpits of the mainstream Christian denominations. They supported slavery, spousal abuse, child labor, elitism and so much more that we now associate with the Confederate mindset.

The South has become, as Dean Velvel ennunciates, virtually a separate nation within a nation. They are entrenched and have come to exist to perpetuate their own existence.

Dealing with them may be possible for the Democrats, but before it will be possible, the Democrats must become shed of their elitist leadership and those who do the same as the Southerners, lobby for power to keep things as they are for no better reason than to maintain their power.

A third party might have a chance if the mass media were not against them from the start. Not that I agree with them, but note how much coverage the Libertarians and Greens receive in the mainstream press. The last time a third party received any press at all was when Ross Perot ran for president. He was flawed, but at least, he was an alternative who garnared nearly a seventh of the vote.

The Howard Dean campaign gave out bumper stickers that resonate with me completely. "I want my country back."

-Daniel Graham Andover, Massachusetts

Friday, November 19, 2004

Column by Anne Applebaum of The Washington Post

Dear Colleagues:

I recently read a column in The Washington Post by Anne Applebaum, The Post writer who won the 2004 Pulitzer Prize for nonfiction for GULAG: A History. Applebaum’s column relates to our latest war, in Iraq. It is so trenchant that I have attached it so that readers of this blog, most of whom may not see The Post, will have a chance to read it.*

*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.

A German Lesson for Remaking Iraq
By Anne Applebaum
Wednesday, November 10, 2004;
Page A27

Yesterday Germans celebrated the 15th anniversary of the fall of the Berlin Wall. Or, to put it differently, yesterday Germans marked 15 years of what has been the most peaceful, most comfortable, most orderly transition from totalitarianism to democracy ever -- the polar opposite of the transition now taking place (if it is taking place) in Iraq. There was no violence, no unrest. There was no looting or pillaging.

There wasn't even much shouting. In fact, the odd thing about Berlin, 15 years ago this evening, was how quiet it was. When I arrived in the city, after driving all day and much of the night, the champagne corks had all been popped. There was a big, tipsy crowd of West Germans sitting on a small section of the Wall near the Brandenburg Gate, occasionally taunting the guards, but not doing much else. There were East Germans milling around McDonald's in West Berlin, looking scared. The eastern half of the city was eerily dark.

I was not the only one who found it odd. At a dinner given in her honor this week, Marianne Birthler, a former East German dissident who runs the archives of the Stasi, the East German secret police, agreed that, in retrospect, the peace that followed the fall of the Wall seems almost incomprehensible. By way of illustration, she told the story of a woman in Mecklenburg who learned, after the Wall fell, that the citizens of other East German towns had occupied their local Stasi headquarters. Since everyone else in Mecklenburg was otherwise occupied -- people still had to go to work, take care of children, clean the house -- the woman walked up to her local Stasi headquarters alone, knocked on the door, and said she would like to occupy the building. The guard solemnly handed over his pistol, gave her the keys and let her in.

In the years afterward, the West German government built on the peaceful revolution with an unprecedented transfer of wealth. The East Germans received roads, infrastructure, welfare benefits and investment. While the rest of Eastern Europe struggled with new constitutions, amateurish bureaucrats and fly-by-night political parties, East Germans were simply handed the West German legal system, the West German political system and the West German civil service on a plate.

And yet despite all of that, there are those who feel, more strongly than ever, that the transition has been disastrous. As Birthler put it, the "honeymoon" is long over -- if it ever started. Fifteen years later, not only do easterners feel disenfranchised, nearly one in five tells pollsters that they wish the Wall had never come down. East Germany remains poorer, unhealthier and unhappier than the western half of the country. East Germans remain more prone to political extremism. The neo-communist political party has recently made a stunning comeback in regional elections, and neo-Nazi parties do well in the East too.

The lesson of the East German transition after 15 years should, in other words, be phrased as a warning: Even if it is possible to get every political and economic element right, even if it is possible to avoid violence entirely, the psychological transition to liberal democracy from a regime ruled by fear is one that takes at least one generation, if not two. Few people are able to walk from a closed society into an open one without self-doubt and discomfort. Few people find it easy to readjust their thinking overnight, even if they want to. Few people are able to look at themselves in the mirror, tell themselves that the first few decades of their lives were all a bad mistake, and go out and start living new lives according to new rules. It was no accident, a wise teacher once told me, that God made the Israelites wander in the desert for 40 years before bringing them to the promised land: That was how long it would take them to unlearn the mental habits of Egyptian slavery.

In a week in which U.S. and Iraqi soldiers are fighting one of the bloodiest and most difficult battles of the whole Iraqi conflict, it doesn't sound terribly comforting to write that "these things take a long time." But they do, and for Americans accustomed to fast results, it can't be repeated often enough: East Germany is proof that it is possible to do everything right and still leave millions of people feeling cheated by liberation many years later. I don't know whether Iraq will ever be a "success," but even if it is, we may not know for several decades. If it was a grave misjudgment to ignore that fact before the Iraqi war began, it would be no less catastrophic to do so now.

Thursday, November 18, 2004

Richard Lewontin’s Discussion of a Practice Constituting "A Pervasive Dishonesty" in Science

Dear Colleagues:

In the November 18, 2004 issue of The New York Review of Books, Professor Richard Lewontin -- of Harvard, no less -- assails a practice in the field of science that is closely similar to the problem raised in other fields by the Ogletree affair. The practice in question is that laboratory directors take credit for work done in their laboratories by others rather than by themselves. This is not so different from professors in other fields putting their names on books or articles written in whole or in part by others, which is the problem raised by the Ogletree matter.

Lewontin calls the science custom "a pervasive dishonesty in the practice of science that makes a certain level of intellectual corruption characteristic of the institution." One would add that the custom in science is not only "a pervasive dishonesty" there, but is also symptomatic of one form of the wider dishonesty which has corrupted the nation in all fields and institutions and which must be rooted out if we are to claim that America is a society of integrity.

The relevant portion of Lewontin’s article is attached.*

Excerpt From Lewontin’s Article:

Despite the sophistication of Judson's analysis he has missed a pervasive dishonesty in the practice of science that makes a certain level of intellectual corruption characteristic of the institution. The dishonesty consists in the way credit for scientific research is falsely ascribed to some of the authors of jointly signed scientific papers. He brushes by this practice by referring to "gift authorship," but, far from a willing gift, it is an exaction that the powerful impose on the weak. Science is carried out for the most part in a collection of cottage industries, work groups called "laboratories," but that is a synecdoche. The group is headed by a senior scientist, sometimes accompanied by a more junior but established colleague, and includes postdoctoral fellows, research associates, graduate students, visiting scientists, and technical assistants all working in offices and laboratory rooms clustered around the laboratory director's own space.

It is almost always the case that the laboratory director performs no actual experimental work. There is considerable variation from laboratory to laboratory and from project to project within the laboratory in the degree to which the senior scientist participates in the conception, planning, supervision, and eventual writing-up of the work. In many cases the entire project from conception to publication is without any significant input from the director. Much of what is done, however, is supported by funds from various grants and contracts obtained by the director as the euphemistically named "principal investigator."

Regardless of the actual involvement of the laboratory director in the intellectual and physical work of a research project, he or she has unchallenged intellectual property rights in the project, much as a lord had unchallenged property rights in the product of serfs or peasants occupying dependent lands. The chief product of a laboratory is in the form of published papers and the chief manifestation of the director's intellectual property rights is that he or she will be coauthor on every publication from the laboratory, sometimes including even general review papers and book chapters written by subordinate group members. Such property rights explain how, for example, Professor Eugene Braunwald of the Harvard Medical School came to be an author, at the age of fifty, of over six hundred publications.

Unfortunately for Braunwald, one of his protégés and coauthors, John Darsee, turned out to be a detected fabricator. One wonders how many sleepless nights Braunwald spent worrying about those other publications. But if laboratory directors as a matter of course claim authorship of work to which they have made no intellectual contribution or only a trivial one then they are, year in and year out, committing an intellectual fraud from which they reap immense rewards of ego, prestige, income, and social power. Moreover, by an unconscious affirmation on the part of the scientific community as a whole, these rewards grow autocatalytic. Robert Merton, the founder of modern social studies of science, called attention to a phenomenon he named the "Matthew Effect" after Matthew 25:29:

For unto every one that hath shall be given, and he shall have abundance; but from him that hath not shall be taken away even that which he hath.

Irrespective of the order of authors on a paper, it is referred to informally and sometimes formally by the name of the best-known author. In laboratory libraries papers are filed under the name of the "senior" author and remembered and discussed under his or her name. I was an indignant witness to an extreme case of the Matthew Effect. A graduate student in my laboratory had published a seminal paper, without my name on it, on an enzyme called alcohol dehydrogenase that everyone agrees has revolutionized the experimental study of population genetics. Shortly afterward I gave a lecture on a different subject, at the end of which a colleague came up from the audience and said, "That was very interesting but what I really admire is your paper on alcohol dehydrogenase." There is some justice in the world, however, and the misappropriation of intellectual property occasionally means that one may try to pass a bad check. The Matthew Effect then does its work. The fraud attributed to Imanishi-Kari becomes known as the "Baltimore Affair." To them that hath it shall be given.

Scientists in training are conscious of the appropriation of credit for their work by senior scientists and they resent it but feel that they cannot protest. It is not that they place no value on the details of authorship. They will fight bitterly with colleagues of their own rank about who should be first author on jointly authored publications. Yet when they too become seniors they will engage in the same fabrications of intellectual credit. The fabrications and falsifications of scientific results that we condemn as fraud are carried out from the desire for fame, status, and economic reward. But the misappropriation of credit by senior scientists arises from the same motives. How can we expect scientists to hold literal truth about nature as an inviolable standard, when they participate, en masse, in a conscious everyday falsification about the production of that truth? That is an aspect of what Judson calls "the culture of fraud" that is far more relevant to scientific honesty than the behavior of the executives of Enron on whom most scientists claim to look with disdain.

*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.

Tuesday, November 16, 2004

Views Of Johnny One Note.

Dear Colleagues:

When this blogger left Logan Airport in Boston in approximately mid-October to fly to New Zealand and Australia, the Red Sox were down three zip to the Yankees and George Bush was favored to win the presidential race. When I returned on November 7th, the Sox had won the World Series and Bush had won the election. Oh well, I suppose one for two isn’t bad. Especially since one can hardly help believing, even though it probably is not true, that although they jointly lost eight straight games, the Yankees and Cardinals probably provided more competent competition than John Kerry did.

Incidentally, with regard to both the presidency and, naturally to an infinitely lesser extent the World Series, it is remarkable to see how closely American events are covered by the print and electronic media abroad. It could very well be my own inexperience and ignorance -- I usually go abroad only once every few years -- but I do not remember American events receiving such extensive coverage previously. As I recently read somewhere, much of the rest of the world seems to feel that it had a great stake, but no vote, in the American election. (When it came to sports, however, cricket and rugby were the cynosure of all eyes (as soccer too would be at other times), with the World Series results, though covered, being in, say, 25th place or so.)

Beyond that, much of the coverage of the election campaign was exceptionally knowledgeable; though others might disagree, the coverage seemed to me to often rank with the kind of coverage one reads in major American newspapers such as The Globe, The Times, The Washington Post, and The Wall Street Journal.

In any event, having returned to the States after the election, there are some points this blogger wishes to make about the candidates, the election, and the already unfolding and potential future aftermath of the election. Lots of the points may not be new to readers of this blog (if any). For after 65 years of life this blogger, unlike John Kerry, knows what he thinks. The consequence is that this writer generally does not blow with the wind, and consistently urges the same points -- points which seem to the writer fundamental. That is why the title of this post includes the phrase "Johnny One Note." It is not that, as true of Johnny One Note, this blogger has but a single, continuously resurfacing idea. But there is a kind of kinship with Johnny One Note in that there is, one believes and hopes, a constancy of position.

The constant positions, of course, will be seen as and called "political" by many of those who disagree with them, regardless of the extent (if any?) to which they are based on established or likely facts. It is the American way to denigrate positions one disagrees with by calling them "political," or "emotional," or "soft hearted," or "idealistic but not practical." Yet, whether they are denigrated or not, the positions are ones I believe. One realizes, of course, that people of enormous, sometimes nearly uncabined, acumen may well disagree with them, perhaps will almost certainly disagree with them. One hopes that those who disagree (and also those who agree) will respond, especially on the particular subjects that will be listed at the end of this post. Responses would enable there to be a dialog rather than a one way conversation. And if someone wishes to respond, but does not want his or her name attached to a public posting of the response, I would be glad to accommodate that desire so long as the writer tells me his or her name in private. Such has been done previously here, and it will be done again if a writer desires.
* * * * *
Unless one thinks that George Bush’s policies have been good, and that the people who advise him on those policies are capable, decent people, one almost inevitably has to conclude that the country is likely to be in for at least four more years of big trouble. Much verbiage has been spilled, of course, to urge that perhaps Bush will change, perhaps he will soften, perhaps this, perhaps that. This all seems nonsense. The mother of a close friend used to say that, as people get older, they do not change. Rather, they just become more so. Exactly.

Bush is a true believer. Not a smart man -- except for apparently being a shrewd politician for a nation whose local, state and national politics are all pretty much gutter level -- but a true believer. He has said that he now has capital. He will use that capital, viz, nominating for attorney general (and maybe later for the Supreme Court) a man who supervised the drafting of memorandums seeking to immunize the use of torture.

With regard to Bush’s possession of capital, incidentally, it has been said that after this election Bush is no longer a one term accident. That is true. He is now a two term accident (which is probably not what one expected to be said). For in the 2004 election he had the great good fortune to have as an opponent a man whom many people couldn’t stomach, a man whose driving ambition since teenage years was to be president, who has been inconsistent as hell in service of this ambition, who sounds like a phony when he talks, and who millions of people obviously felt they couldn’t trust. Just as many of us voted for Kerry not because we like him, but only because he wasn’t Bush, so too, it seems, millions of people voted for Bush only because he wasn’t Kerry. Bush, as said quite a while ago here, can evince an appealing personality, especially in a country where the frat boy persona, and the "mucker pose," play well, are almost even demanded by a host of people.

Nonetheless, millions seem to have voted for him mainly because he wasn’t Kerry, whom they (understandably) could not stomach. As I say, not a one term accident. A two term accident.

None of this is to say, incidentally, that everything Bush wants to do is bad. Reform of social security is apparently needed, and reform of our horrendous tax system is certainly needed. As well, one of the two major tax reform ideas currently floating around the Administration -- a flat tax with many fewer deductions than presently -- is not all that different from the proposal of a gross receipts tax with no deductions and no credits (but perhaps progressive albeit generally much lower rates) that was put forth here in a post of July 6, 2004. It would be hypocritical (and inconsistent) for this blogger to say that all potential Bush tax proposals are entirely no good. And, whatever the reasons may be, and though some of the possible reasons have serious downsides, it has to be said that there have (at least thus far) been no major terrorist attacks on American soil after 9/11.

But while not everything Bush wishes to do is necessarily bad, the list of known bad and potentially bad policies, and bad personal traits, is far too long. Some examples will suffice.

To begin with, and in my judgment most importantly of all, the misbegotten war in Iraq continues, and God alone knows for how long. The war in Iraq, moreover, is symptomatic of the even worse fact that the country, and Bush, are in the grip of militarism, a condition in the country as a whole which can be dated back at least to 1947 or so and, if one wants, to 1898 or even earlier. This militarism causes us to have no concerns over how many people of other nations we kill or cause to be killed -- I have rarely heard concern over the fact that we bear overwhelming responsibility for the deaths of three million Viet Namese, I have never heard concern that we bear responsibility for the deaths of 200,000 Filipinos (at the turn of the 20th Century), and only very rarely have I even heard it mentioned in America -- although it apparently is a big thing elsewhere in the world -- that we already are largely responsible for civilian Iraqi deaths variously estimated at from 10,000 to 20,000 (or even more?) . Our militarism, and our lack of concern for the deaths of others arising from our misbegotten belief in military solutions, has made us a pariah in many other nations, not all of them enemy peoples; it is not Al Qaeda or anyone else whom these nations consider the world’s major terror threat, but the United States. Nor are our leaders deterred from militaristic adventure by fear of criminal responsibility, by fear that their own families or friends could be killed, or by personal experience of the horrors of war. We do not impose criminal punishment on our leaders no matter how reprehensible their conduct, nor is it our leaders or their families or friends who have gone or who go in harm’s way.

Our militaristic belief in military solutions has been detailed on this blog and elsewhere, and those discussions shall not be repeated now. Suffice it to say that over the long haul nothing good ever came out of militarism -- as was well known to the founders of the nation; the very people whom conservatives and reactionaries hypocritically love to cite.

Then too there is the desire of the right wing religious fundamentalists like Bush to fasten their religious views on all the rest of us. This is true in such matters as abortion, gay rights, judgeships, and military actions. (A striking cartoon I saw abroad showed a figure marked militarism with a figure marked religious right, and a pastor saying he now joins them in holy matrimony.) The fundamentalists, after all, have the greater word of God, to which you would do well to attend (to use phrases appearing on the outer walls of the National Shrine in Washington, D.C.). And, if one takes Bush at his word, he gets his marching orders not from Daddy (as Pedro Martinez might), but from the big fella in the sky.

Then there is the questions of judgeships. No elaboration is necessary here. The mere mention of the problem suffices.

There are also Bush’s disagreeable and/or inept personal actions and characteristics. He only reads one page summaries of elaborate topics. He is known to be "incurious," a code word for dumb and/or for not having any depth. He brags about merely setting overall policy while leaving all the details to others -- a sure fire recipe for failure, as leaders in almost any field will tell you. (Bush’s people say that he does this because he only became successful when he started to do it -- which in actuality is a comment on the lack of acumen which sunk him repeatedly in business but did not handicap him in politics, where true competence is not necessary and can even be a handicap.) He is a man who, starting with every conceivable advantage, was a serial failure in business and a drunk who repeatedly "failed upwards" (as someone recently said) after being bailed out by Daddy’s friends and wanna-be friends, until he finally became a politician, where, as said, true competence is not necessary and can be a handicap. He was, beyond legitimate doubt, deeply fooled by Saddam’s (extensive) plans -- which equally cannot be doubted -- not to make a strong conventional military stand against the Americans but to instead fight them in a guerrilla war (and, being deeply fooled, stupidly announced that major combat operations were over when the guerrilla war had hardly even begun). He and his colleagues missed obvious signs of the impending attack by airliners that was 9/11. He is on afficionado of the extensive secrecy which facilitates and often is a prerequisite for governmental misconduct. He is also, in all likelihood, guilty of war crimes, as has been discussed previously on this blogsite, and knew of and condoned the torture of prisoners, including in this regard the sending of prisoners to foreign countries where they would be interrogated by torture that the Administration hoped would be beyond the purview of American law because done in places like Thailand, Pakistan, Afghanistan, etc.

Then there is the South, which is primarily responsible for both his elections. The South is another country, and has been from the beginning of the nation. Anybody who knows American history knows that, except for 1861-1876, the South, the eleven states of the old Confederacy, has had vastly disproportional, even controlling, power in this country. It has extensively controlled the country by, at various times, having vastly excessive power in one or more of the Presidency, the Congress, and the courts. Since 1876 it has always been largely or exclusively a one party region, first being solidly Democratic and now being solidly Republican, and the immense power it possesses by virtue of being a largely one party region has always been exercised in favor of conservative to deeply reactionary causes, including slavery, then segregation, religious fundamentalism, economic oppression of the poor, and militarism. Much as one may like individual southerners, as I do, or much as one may respect certain of their traits, as I do, there is no blinking the fact that the South’s influence on this nation, the influence of the eleven states of the old Confederacy on this nation, has been malign in many ways since the beginning of the country. Bush is a product of the South, much of today’s Congressional leadership is likewise a product of the South, and the malignity continues. And, as made clear many times and in many venues, including in a new book of essays by dissenting present or former southerners called Where We Stand (the title is a take-off on the 1930 work by the Vanderbilt agrarians called I’ll Take My Stand), the solid eleven state block of the old Confederacy, coupled with the support for bad or savage policies given by various rural or mountain areas, is too much for more humane or sensible positions, national candidates and legislators to overcome. That the South is another country was discovered to their shock by millions of northerners who trained there in World War II, and in significant respects, particularly religious fundamentalism, militarism, abortion and gay rights (and hidden racism?), it remains another country even sixty years after World War II.

* * * * *
Can anything be done about the unhappy prospects we face for the next four years? Well, there are, of course, whatever actions the Democrats in Congress can take, especially in the Senate. I don’t wish to opine here on those. Rather, I would like to discuss certain more long range and fundamental questions of philosophy.

It is widely thought that the Democrats suffered from, and perhaps lost the election because of, a values gap. True, Frank Rich correctly points out that conservatives seem not to be hindered by values when it comes to soliciting or making money. Yet it also seems true that the Republicans made great headway with their talk of values in regard to abortion, gay rights and family.

Values are in fact a nation’s most important attribute. Its values shape a country’s culture and its power. This blogger therefore suggests that those who oppose Bush adopt as a platform, as it were, and seriously attempt to implement, a set of values that are clearly correct and, beyond this, hopefully will resonate to the point of making political success possible even in some of the red states, conceivably even in one, two or even more states of the old Confederacy.

As this blogger has previously said in part here and elsewhere, there should be a new dedication to certain fundamental principles, or values. They include:
• Honesty, which is the basic requirement for being able to arrive at sound policy in any field, since flawed policy generally results from flawed information. This has so often been shown in life and politics (including in Viet Nam and Iraq), that elaborate discussion is superfluous. Yet lack of honesty is rampant in America.

• Competence, since failure is the general result of lack of competence. There need be no elaboration of this obvious point, need there? Yet, here again, lack of competence is rampant in this country, especially in government.

• A reasonable concern for others as well as for oneself, including a concern for the have-nots of society. This is a moral position and, even aside from morality (or idealism), as a practical matter we cannot really expect to have a decent, peaceful society if the have-nots are continuously and increasingly screwed over, can we?

• Antimilitarism. This does not mean we should disarm or fail to maintain appropriate levels of military strength. It does mean that we should almost always try to solve problems by non-military means and should not try to maintain our military at its current strength relative to the rest of the world -- we currently spend more on our military than approximately the next 20 or so nations of the world combined, and some say we spend more than all the rest of the world combined. This level of expenditure is crazy.

• A commitment to reasonable, civil discussion of our internal and external problems.

It is immediately obvious, of course, that except for the antimilitarism plank, these principles or values are all procedural principles or values, not substantive ones. Yet they are values that most people probably can accept. And, while it admittedly is a matter of philosophy, one does believe that these values or principles, if seriously followed, and not merely given lip service, will lead to decent, even enviable, policies. They work in non-governmental institutions that follow them, and they would, I believe, work in governmental ones too if seriously followed. Perhaps, of course, expecting them to be seriously followed in government is too much to ask. But what is the alternative: surrender to the values of the old Confederacy so that, as partly discussed in an essay in Where We Stand, the whole country becomes even more southernized than it already is, and therefore becomes more militarized and less humane than it already is and becomes a nation where fundamentalists’ views of religion and its social requirements are forced on everyone? Or are there other values, more substantive and thus less procedural in character, which can be adopted and which will prove able to break through the South’s stranglehold on the country? If so, what are they?

A last point here. Suppose there is a desire to adopt the values set forth above. Should and can this be done by the Democratic Party? Or is a new third party needed? (One does not think it will be done by the southernized Republican Party.) Well, maybe it would be nice if it were done by the Democrats, but one fears that the Democrats, like the Whigs of the early 1850s and the Democrats of 1860, may be played out, with too many vested interests and too many people of little competence -- Kerry wants to remain a Democrat leader; can you imagine that? On the other hand, in 1964, after Johnson smashed Goldwater, it was bruited that the Republican Party might be finished, yet look what happened. Yet again, however, on the basis of what one currently reads and hears, it is questionable whether a Democrat resurgence would accomplish much for the country. For one of the major notions one reads and hears these days in regard to a Democrat comeback is for that party to move to the right, to become more southernized and more like the southernized Republican party in order to compete with that party.

With regard to a permanent third party, that could well be the best solution, because it would be a fresh start, just as the Republican Party of 1854 and 1856 was a fresh start. But the Democrats and Republicans have created duopoly ballot laws that would make it nearly impossible for a third party to get on the ballot unless it began early and, probably, were bankrolled by the wealthy entrepreneurs and the 527s that tried unsuccessfully to bankroll a victory by Kerry.
* * * * *
I hope some readers will respond to this blog, so that there can be a dialog on points made here. In particular, it seems to me, it would be very helpful if people would respond with agreement or disagreement, whole or partial, on any of the following topics discussed here:

• Will Bush change?

• Has the 2004 election given Bush capital? (Or is he a two term accident?)

• The war in Iraq, and whether America is a militarized country.

• The prospects that religious fundamentalist values will be forced on all, including fundamentalist values regarding abortion, gay rights, judgeships and military action.

• Bush’s personal characteristics and actions.

• The South, its long influence on this country, and whether the whole nation already is, or is becoming, southernized.

• The adoption, as a basic platform, of the values discussed here, or of other values. Also, whether the values discussed here, if adopted, will lead to decent and reasonable policies.

• The possibility that the Democrats might adopt the values discussed here.

• Other values that might produce a desirable Democratic resurgence.

• The need for and feasibility of a third party.*

*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

Professor Ogletree’s Latest Response

Dear Colleagues:
In the attached email Professor Ogletree declines to make the two simple statements which, as said in a blog of November 11th, would, if true, lay to rest the questions arising with regard to his authorship of parts of his book. The two statements were: (1) "Except for normal word changes made by others in the editing process, I personally wrote every word of the first and all subsequent drafts of the book and made the initial decision on whether to include any and all quoted material, including the Balkin material." (2) Although I received and adopted ideas and suggestions from others, those ideas and suggestions did not come to me in the form of drafts which I then inserted in the books pretty much unchanged except for some editing. Rather, I myself wrote the language that reflects those ideas and suggestions."

Rather than make these two statements, Professor Ogletree says, "I have answered these questions." He then goes on to give a number of at least purported reasons why he apparently (and understandably) wishes to no longer continue email correspondence on the matter. (Here he has my sympathies. As said in the post of November 11th, this blogger too does not intend to continue the email correspondence between us).

This blogger is one who believes that, especially in context, Professor Ogletree’s prior statements have not in fact answered the questions and have not established his innocence beyond peradventure, but have instead led to doubt. For those who believe this, as well as for those who seem to already have arrived at a conclusion of guilt, volumes are spoken by Professor Ogletree’s declination to make the two simple statements which, if true, would clear his name.

For those who hold this position, the "only" remaining questions (which would be of interest to others too) might be these:
• How frequent is the problem at the Harvard and other law schools, i.e., how
often do Harvard and other law professors have assistants write parts of their
articles or books? (God forbid that they should have assistants write the
entirety of their articles or books. This doesn’t happen, does it?)
• How
frequent is the foregoing problem, at Harvard and elsewhere, in departments
other than the law schools? (There has been Internet traffic leading one to
believe it may be distressingly common.)
• What has Harvard done, or what
does it intend to do, about the problem? Also, what do other schools intend to
do about it?
• Will anything be done about the problem as it exists -- to a
fare thee well -- outside the academy, i.e., will anything be done about the
parading of assistants’ work as one’s own by judges, politicians, corporate
leaders and others? In fields such as these the problem is an everyday one that
exists to an extent that seems not even conceivable in one’s worst nightmares
about academia.*

*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.

To: Dean Velvel
From: Charles Ogletree
Date: November 14, 2004

Dean Velvel: I have answered these questions. It is the middle of November, and my students seek my advice and counsel, my clients( including those facing the death penalty) seek my services, and my family is reasonably insisting that I modify my practice of working seven days a week. I will attend to these matters with dispatch. Signing off.

CJOAt 04:25 PM
11/11/2004 -0500

Thursday, November 11, 2004

Re. Ogletree Response (II)

From: Dean Lawrence R. Velvel
To: Charles Ogletree
Sent: Thursday, November 11, 2004 4:25 PM
Subject: Re: Fw: Fw: Re: Corrected response

Dear Professor Ogletree:

Thanks for your response, and for its celerity.

Professor, your email seems to contain various mea culpas - - some implicit apologies as it were, as well as one explicit apology. But be assured that I did not feel any apology was owed to me. Yet it was kind of you to in effect apologize, and I wish to express my thanks.

Now let me apologize in turn, because of this response. I did not wish to write you again lest there be interminable back and forthing. I sincerely hope that, and at this point certainly intend that, this shall be my last substantive email to you on the subject of the discussion. But I did feel this email necessary because of some wording in your letter.

In your email you say, "I had the benefit of research and ideas, not only from students, but as well from colleagues who offered terrific ideas and suggestions. I adopted some and rejected others." So far, so good. It is laudable to have received - - and presumably to have sought out - - ideas and suggestions, and to have adopted some and rejected others.

Immediately after the above quoted sentence, you then say, "Every word in the book is not mine"- - a sentence which plainly is not to be read literally, but is to be read to mean the quite different proposition that "Not every word in the book is mine." The sentence "Every word in the book is not mine" gives rise to two questions, as discussed below.

Immediately after saying "Every word in the book is not mine," you say, "I had a terrific copy editor who was equally helpful on every aspect of the book." You then say, "My book was not written by someone else, but I certainly did benefit from input by others."

Professor, I hope I am not being obtuse or obstinate, but it does seem to me that this perhaps somewhat odd concatenation of sentences raises legitimate questions:

  1. When you say that you received valuable suggestions which you adopted, and that not every word in the book is yours, I hope you are not implying that some people gave you suggestions in the form of draft language which you then inserted into the book pretty much as given to you, except for relatively minor editing changes. One hopes the idea that not every word is yours is only a (possibly infelicitous) way of saying you adopted some suggestions made by others, although you did put the suggestions entirely into your own language.
  2. When you say that not every word in the book is yours, and then say that you had a copy editor who was equally helpful on all aspects of the book, are you implying that the copy editor wrote, either initially or as a redraft, substantial parts of the book? One again hopes that this is not the implication. One hopes that the copy editor did only what copy editors normally do.
  3. When you say you wrote the book but benefitted from input by others, are you saying, as one hopes, that you wrote every word of the first and subsequent drafts (except for normal changes made in the editing process), and that the input from others was strictly in the form of ideas and suggestions rather than in the form of draft language which you adopted pretty much lock, stock and barrel?

Professor, as said, I hope all of this is not mere obtuseness or obstinacy. But at rock bottom the issue is a simple one. Except for normal wording changes made by others in the editing process, did you or did you not write every word of the first and subsequent drafts of the book (including making the initial decision on whether to insert Balkin's material (or other quoted material)?) I believe you could lay the whole question to rest if you can and were to make two simple statements, which, if true, could not rightly be challenged by your assistants, President Bok, Dean Clark or anyone else. Those statements would be:

  1. "Except for normal word changes made by others in the editing process, I personally wrote every word of the first and all subsequent drafts of the book and made the initial decision on whether to include any and all quoted material, including the Balkin material."
  2. Although I received and adopted ideas and suggestions from others, those ideas and suggestions did not come to me in the form of drafts which I then inserted in the books pretty much unchanged except for some editing. Rather, I myself wrote the language that reflects those ideas and suggestions."

Professor, if these two simple statements are true, are therefore not rightly challengeable, and were to be made by you, then I think the brouhaha would be over. On the other hand, if you cannot or will not make them, then the implication which inevitably will be drawn is that parts of your book were written by others.

Professor, given the ease with which you could lay the matter to rest if you can and do make the two simple statements, and given the inevitable implication that will be drawn if you cannot or are unwilling to make the statements, I cannot presently see how any further emails from me will be necessary or desirable except to congratulate you if you can and do make the simple statements which would end the matter.

Sincerely yours,

Lawrence R. Velvel,

----- Original Message -----
From: Charles Ogletree
To: Dean Lawrence R. Velvel
Sent: Wednesday, November 10, 2004 5:45 PM
Subject: Re: Fw: Fw: Re: Corrected response

Dean Velvel:

Thanks for your comments. I appreciate your responsiveness. All Deliberate Speed reflects my personal views about on Brown, and how that decision has influenced my life. I did not mean to question whether you read the book, and trying to do too many things at once, I wrongfully attributed comments to you that were not yours. I had the benefit of research and ideas, not only from students, but as well from colleagues who offered terrific ideas and suggestions. I adopted some and rejected others. Every word in the book is not mine. I had a terrific copy editor who was equally helpful on every aspect of the book. My book was not written by someone else, but I certainly did benefit from input by others. For that I am grateful. You are right that, the haste in writing the note to you, without noting that someone else implied that others "wrote" the book, was wrong, and for that I apologize. The same lack of careful attention to your email and the assistance that I received from others during the final week of the edits of the draft of the book are inexcusable, and merit whatever reactions and responses I received. Thanks for your note, and best wishes.

Charles Ogletree
At 04:45 PM 11/10/2004

Wednesday, November 10, 2004

Re: Ogletree's Response

From: Richard_Posner
To: Dean Lawrence R. Velvel
Sent: Wednesday, November 10, 2004 3:44 PM
Subject: Re: Fw: Re: [ Ogletree's ]Corrected response

Fine letter, Larry.

Ogletree Response

From: Dean Lawrence R. Velvel
To: Charles Ogletree
Sent: Wednesday, November 10, 2004 1:46 PM
Subject: Response

November 10, 2004
Via E-mail

Dear Professor Ogletree:

Thank you very much for your email of Saturday, November 6th. I wish I could have responded to you more quickly, but I did not arrive back in the country until late Sunday night and have since been swamped trying to catch up after a nearly three week absence.

With regard to points, in your email, let me say, first, that it is gracious of you to take responsibility if there was a misunderstanding with The Crimson. It would seem that, if a misunderstanding existed, the situation was one of those common times when it will be impossible to retrospectively know exactly why the misunderstanding occurred. So it is gentlemanly of you to take the responsibility on your own shoulders.

In about the middle of your email, you make the following statement to me: "You also mention on your website that I and President Bok say students wrote my book." Professor, with the greatest respect, I am at a loss as to how you could write this in your email; I am at a loss to understand how you could write that I mention that you and President Bok say students wrote your book. As far as I can see, I said no such thing. I questioned whether you or assistants "wrote" (so to speak) the plagiarized paragraphs from Balkin. And I questioned whether the admitted insertion of these paragraphs by an assistant indicated that perhaps other parts of the book could have been written by assistants, which I thought might, at least in part, be most surprising if it were true. But where in heaven's name did I mention that you and President Bok said students had written the book? I am at a total loss to understand why you said I did this. If I am missing something, please enlighten me.

(I noticed this morning, incidentally, that after I was abroad the bloggers at Authorskeptics wrote that you and President Bok said you had law students write much of your book for you. Perhaps you have mixed up what I said with what Authorskeptics said.)

In your email, you also say to me that "I think you have read the book . . . ." You think I have read the book? Professor, the second sentence of my initial posting of September 10th says "I read and enjoyed the book earlier this year." You do not disbelieve that, do you?

Professor Ogletree, I know it is a harsh thing to say, and for that reason I almost feel badly in saying it, but don't the two just-discussed statements in your email reflect the kind of sloppiness which apparently caused the plagiarism problem in the first place?

One last point regarding statements in your email. Immediately after saying (wrongly) that I mention that you and President Bok say students wrote the book, you say, "That is not true. I wrote this book." Professor, without meaning to be Clintonesque, it depends on what the meaning of "wrote" is. Does 'wrote" mean that you wrote the first draft and each succeeding draft of the entire book? If so, it is public that you did not "write" the entire book, because about 840 words were plagiarized from Balkin. Or, does "wrote" mean that, when it came to Balkin's words, you personally made the initial decision to insert them, as opposed to merely reading them as inserted by someone else and leaving them in? The latter would not constitute "writing" that portion of the book in my opinion, but the former would. The problem here, of course, is that you have said that an assistant inserted Balkin's words in a draft section for the purpose of being reviewed, researched and summarized by another research assistant -- which does not sound as if you "wrote" the portion of the book at issue by making the initial decision to insert Balkin's words. But, regardless of how things currently sound, did you, in fact, specifically instruct the first student beforehand to insert Balkin's stuff? If so, this would put a new light on things.

And, with further regard to the meaning of "wrote," these points raise a question as to the remainder of the book. Did you personally write every word of the first and all succeeding drafts of the book apart from the Balkin material? Or did you have others write substantial drafts, or substantial drafts of entire sections, which you then reviewed and edited? If the former, then you "wrote" the entire rest of the book. If the latter, you did not.

Professor, with respect, as far as I know there have as yet been no answers to these questions. They are not resolved by the possibly bald statement that "I wrote this book." For, Clintonesque as it sounds, it does depend on what you mean by the word "wrote."

You know, although it is unfortunate that quotation marks were inadvertently omitted around Balkin's words, I have to say that, if this is "all" that occurred, it is a little hard to understand why Dean Kagan thought the matter "'a serious scholarly transgression'" after receiving the report from President Bok and Dean Clark. After all, unfortunate as it is, it sometimes does occur that writers, perhaps sloppily, inadvertently omit quotation marks. And, as far as I know, nobody is accusing you of deliberately omitting the quotation marks. So why is this matter such a big deal to Dean Kagan, and why is Harvard apparently going to impose some currently undisclosed penalty, if all that occurred is inadvertent -- sloppy and negligent to be sure, but nonetheless inadvertent -- omission of quotation marks? If all that occurred is, if the only thing bothering Dean Kagan is, an inadvertent omission of quotation marks around Balkin's material, then neither Dean Kagan, nor President Bok, nor Dean Clark are doing you any favor by not coming right out and saying that this is all that occurred, is the sole reason to be troubled, and is the sole reason for the imposition of some currently undisclosed penalty.

Sincerely yours,

Lawrence R. Velvel, Dean

----- Original Message -----
From: Charles Ogletree
To: Dean Lawrence R. Velvel"
Sent: Saturday, November 06, 2004 8:02 PM
Subject: Fwd: Re: Corrected response

Dear Dean Velvel: I have not visited your website regularly because of my crazy schedule during the elections. I just read the Crimson response.I disagree with the reporter who described the conversation when he called me for a comment. As I said before, my comment was about whether Prof. Tribe would respond to these very serious charges, not whether the work was plagiarized. How would I know? I was confident that he would respond, and as I recall, the student reporter asked me whether I could assist him in reaching Professor Tribe. I do not read the Crimson with any regularity, and have not followed its coverage. I have though, for the past 20 years, responded to every call made by the students, on any subject, and as you can imagine, at all times of the day or night, and every day of the week. If there was any misunderstanding about what I said or meant, for that I apologize and takefull responsibility. You also mention on your website that I and former President Bok say students wrote my book. That is not true.I wrote this book, and it was my view concerning Brown's impact on my life, from childhood, through adolescence, college, law school, and as a young lawyer. Other than the historical work on Houston and the Marshall/King chapters, I really try to take the reader through my path as a "Brown Baby", having been born less than two years before the decision. I think you have read the book, and know that it is an historical memoir, and as I say rather clearly, designed to reach a broad public audience. As I wrote it, I listened to several people who told me to tone down the legal jargon, and I tried my best to do that. I continue to take full responsibility for the errors, and I should not have let the pressing deadline in August influence the final edits of the book. As I said from the beginning, no one is to blame but me, and the responsibility is mine alone.

Legal literature

From: Ebert Lawrence
To: velvel@mslaw.edu
Sent: Thursday, October 28, 2004 9:26 PM

Have enjoyed your posts on the Tribe business.
Although plagiarism is a significant problem, it might seem the publication of falsities in law reviews is something that should also be discouraged.
Although many academic commentators have been quick to criticize failings at the Patent Office, they are glacial in responding to errors that they make. The non-discussion of these errors allows the errors to become imbedded as virtual folklore and thereby serve as an impediment to valid academic debate. An article in the Harvard Law Review in 2003 asserted that the patent grant rate at the USPTO was 97% ! [116 Harvard Law Review 2164 (2003), as discussed in Lawrence B. Ebert, Good Night, Gracie?, Intellectual Property Today, pp. 26-27 (August 2003)] A different example of this problem is a misstatement in the Boston University Law Review about the work of Robert Clarke in evaluating the patent grant rate issue (Mark A. Lemley and Kimberley L. Moore, Ending Abuse of Patent Continuations, 84 B. U. L. Rev. 63 (2004) at footnote 22); the mistake of Lemley and Moore is discussed in http://jip.kentlaw.edu/art/volume%204/4-1-4.htm.

If articles in law reviews are to serve as a resource of information, it is time that editors carefully review the accuracy of submissions in the first place and that the law reviews promptly correct errors in the second place.
Lawrence B. Ebert
October 28