Friday, October 15, 2004


Dear Colleagues: will be "off the air," so to speak, until approximately November 12th. Postings will resume then.

Tuesday, October 12, 2004

Statements Of The Unacceptable

Dear Colleagues:

As a general matter, it is not great fun, shall we say, to write things that are not accepted at the time, that are even quite unacceptable at the time, although they are true and are later vindicated by history. Ibsen wrote of this in An Enemy Of The People. So did Jules Lobel in his recent book entitled Success Without Victory. Saying the currently unacceptable causes one to be thought badly of, to be reviled, to be accused of ranting, to be regarded as unsound. It often takes years, or decades, for the unacceptable position to become the accepted position, and he or she who said the unacceptable may not be around then. Those who said the unacceptable which later became conventional wisdom, and who sometimes did not live to see vindication, include at least the original revolutionists, abolitionists, proponents of women’s rights, proponents of the rights of labor, civil righters, and opponents of the Viet Nam War.

One of the reasons it can take a long time for the once unacceptable to become the conventional wisdom is that sometimes the question is predominantly one of values, even though facts are invariably involved as well. Women’s rights and civil rights exemplify. At other times, though, facts play a more dominant role, though values too are inevitably involved. Viet Nam exemplifies. The facts, as they came out, showed in relatively short order -- short at least when compared to the decades long struggles for women’s or civil rights -- that the Government’s position was a disaster. Today we have some situations regarding Iraq that exemplify points whose statement were once and may still be unacceptable, but that could become conventional wisdom, could even become conventional wisdom rather quickly, because of facts which are coming out. For instance, given America’s quick victory over Saddam’s armed forces, and the fact that Saddam was found cowering in a spider cole, it was plainly unacceptable for a long time to say that Saddam Hussein made a fool of George Bush and company in Gulf War II. Indeed, Howard Dean was dumped on viciously for making some statement to the effect that the capture of Saddam did not mean an end to the battle going on over there -- Dean ran afoul of those who were determined that he would not be the President or even the Democrats’ candidate.

But, as was said here unacceptably on at least two occasions in the first half of the year, we are learning that in fact Saddam did make fools of George Bush and his cohorts. The Duelfer report makes clear that, as was alluded to twice -- but only twice -- in at least one newspaper earlier this year, Saddam and his cohorts planned an insurgency before the war even started. Saddam, sad to say, was not as stupid as Americans have been brainwashed to think. He was not wholly oblivious to the disparity in combat power and ability between America and Iraq. So he planned an insurgency -- weapons and explosives were placed in hidden caches around the country, people were trained, intelligence officers were dispersed to run the insurgency. And he warned us publicly that there would be surprises. Then, instead of standing and fighting, his army -- except for Fedayeen attacks that should have given warning of what was to come -- melted away, like the British Navy in Kipling’s Recessional. Only Saddam’s army melted away so that its men would not be killed, but could instead fight in a guerrilla war.

And did the American brainiacs – the army planners, the civilians who run the Pentagon, the people in the White House, including Bush -- think anything of this? Did the media think about it or write about it? Did any of the brainiacs or media consider it at all strange that Saddam would publicly say he had surprises in store and then his fourth rate army mted away instead of fighting a first rate army? Did any of the brainiacs consider the examples of the Philippine insurrection or Viet Nam? Nope, nope, nope and nope are the answers to these four questions.

But let us be fair. It is said that, in secret reports, the much (and justly) reviled CIA warned that there would be a guerrilla campaign. The problem, however, is said to have been that the Defense Intelligence Agency, and the intelligence branches of the Army, Navy and Air Force, gave these warnings little credibility and did not pass them up the chain of command.

Nor, of course, does it appear that Bush, our fool-in-chief, raised any questions about the strange but telltale combination of Saddam’s claim of surprises and his army then melting away except for guerrilla style attacks. This, though, accords with what Bush’s handlers call his style of leadership (in reality his purported leadership) in which he sets goals and then leaves everything to the professionals, without engaging in the constant questioning recommended by Eliot Cohen and engaged in by every leader worth his salt in any and every walk of life. But let us not forget that Bush says a leader must be decisive. He cannot question what is going on. If he does, he cannot be a leader, etc., etc. Pace Abraham Lincoln. Pace Winston Churchill.

The truth, however, would unhappily seem to be that Bush’s intellect does not enable him to question what is going on. He is only good at shifting blame. Bush is, after all, the President who relies on one page summaries of 90 page reports.

* * * * *

All of this raises the question of why hasn’t John Kerry picked up on the idea that Bush was seriously outsmarted by Saddam. This question is the more insistent because Kerry claims to be, and apparently is, a person who extensively questions plans, ideas, and suggestions. He does so, it seems, to the point of being called indecisive and a flip flopper. (Persons who speak more harshly of him says this shows he has no principles except the advancement of John Kerry.)

One might respond to the question by saying that, for two reasons, it is dangerous for Kerry to say Bush was seriously outsmarted by Saddam. One is that people will think badly of Kerry for saying it. The Bushies, for instance, will try to make him out as being pro Saddam. The other is that Kerry himself said we have to fight the war and voted to authorize it.

The first reason could be readily overcome, it seems to me. Notwithstanding how the Bushies might try to paint Kerry, he could accurately point out that to say Bush got outsmarted by Saddam is not to be pro Saddam. It is, rather, to lament that America’s leader was outsmarted, and to make the point that we need someone who is smart enough not to be so easily outwitted. We need no more Presidents so incompetent as to fly onto aircraft carriers to announce that a war is over when it really is just beginning. We need, one would add, someone who is not a fool-in-chief; someone who did not prepare for the presidency by being a serial business failure who constantly had to be bailed out by Daddy’s friends.

The fact that Kerry voted to authorize the war, with reluctance apparently, may not really be a terribly harder problem if Kerry is willing to tell the truth. A lot of people supported the war because the only information they had was that provided by the exaggerating, if not outright lying, Executive Branch. That information was that Saddam had WMDs and might very well use them. He was a serious threat. One presumes that Kerry (unlike, say, Bob Graham), had only this same information. If that was so, it was understandable that Kerry voted to authorize the war, especially if, as he claims, he believed there would not be a war until the inspection process had proceeded to the last ditch.

Of course, such a position would in effect require Kerry to admit that he was brainwashed by the Executive regarding our opponent and the Executive’s plans, similarly to George Romney’s candidacy-destroying statement in 1967 or 1968 that he had been brainwashed about Viet Nam. But an admission of brainwashing today would play a lot better than it did for Romney, because Bush brainwashed the whole damn country and people are unhappy about it by the tens or scores of millions.

* * * * *

Kerry does have another problem, however. He says that he will solve the Iraq problem by bringing other nations on board to help out. Other nations are going to enter that horrible fray? That vicious guerrilla war? That guerrilla war from which members of Bush’s preposterously claimed "coalition of the willing" are already bailing? I don’t think so. Kerry has to do better than this. He is going to have to explain what he would do to get other nations involved and why it would work. As of now it looks like all that Kerry has is something identical to candidate Nixon’s "secret plan" to get us out of Viet Nam. Which is to say, he has no plan, secret or otherwise, but he has to say something, so we get empty talk about a matter which is this important.

By the way, why doesn’t Kerry think about and talk about the apparently logical three state solution discussed here before?

* * * * *

Let me close this blog with examples of two matters which are different from the Saddam-made-a-fool-of-Bush point because they not only are still unacceptable to say (and are thus said in the media only very infrequently or not at all), but will almost certainly continue to be unacceptable to say for a long time. One is that we fight wars like Iraq because none of the children, kin or friends of people like Bush, Cheney, Rumsfeld, Wolfwitz, et. al have to do the fighting. (There is only one member of Congress whose son fought in Iraq. Just one. It’s not like the Civil War or World War II.) Wars like Iraq are, as was said even of the Civil War, a rich man’s war and a poor man’s fight.The other is that, especially if history is any guide, we are likely to continue to have wars like Iraq every so often unless and until people like McNamara, Kissinger, Bush, Cheney and other war mongers are put in the dock, prosecuted and convicted for their violations of international and domestic law.

You can bet that the American media is unlikely to talk at all about the last idea, and is only minimally less likely to talk about the former one. But we will have wars as long as the kids of the leaders continue to stay safe at home and the leaders themselves continue not to be put in the dock even when they violate the law.*

*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.

[S]ome thoughts about... folks who... take credit for language [of] anonymous individuals

Sent: Wednesday, October 06, 2004 9:44 PM


We all know that many if not most (all?) of the speeches that various politicians give at various levels are written by staffers. You can tell who's got a really good staff by the speeches the office holders deliver, and whether they are actively seeking higher officer, or just holding on to a safe seat, is often reflected by the quality of research and writing in the speeches they deliver in their own name.

I once heard Ted Kennedy give a speech at the old Charlestown Navy Yard. The USS Bunker Hill was being commissioned. He remarked that he had never been in the military, or the Navy, but that his brothers had; and that John rose from ensign, to "ensign j.g." to lieutenant.

Well, there is no such rank as ensign j.g. The audience groaned. Obviously, not a lot of time or thought or careful prep went into the speech, and it wasn't checked, at least not adequately. Perhaps even more telling, he did not once mention the prime contractor on the ship, Raytheon, one of the largest, if not the largest, employers in Massachusetts.

On the other hand, I heard John Kerry give a speech for the commissioning of the USS Ramage, and whatever one thinks of him, on that occasion he delivered a well-informed, accurate, carefully prepared talk.

Just some thoughts about another class of folks who routinely take credit for language put together by anonymous individuals.

Enjoyed the conference, and seeing and talking with you again. I have some thoughts; perhaps we can discuss later.

Michael Chesson

Thursday, October 07, 2004

Crimson Staff's Response re. Ogletree Comments

Dear Professor Velvel:

Thank you for allowing us to respond to Professor Ogletree's allegations that we took his remarks out of context in our Sept. 27, 2004 news article. We believe that Professor Ogletree is mistaken in his recollection of our conversation.

At 2pm on Sunday, Sept. 26, we reached Professor Ogletree on his cell phone with the hopes of discussing The Weekly Standard's recent charges of plagiarism against Professor Tribe. We asked him two questions. First, we asked Professor Ogletree if he had seen The Standard's article accusing Professor Tribe of plagiarism. He said he had. Second, we said: "Do you think it rises to plagiarism?" His response--which we read back to him to verify--was: "It's nonsense, and Professor Tribe's rebuttals over the decades have made that clear." Professor Ogletree added that he would not comment further.

Professor Ogletree wrote that we had asked him to evaluate "the claim that Professor Tribe would NOT respond to the charges." We never made such a claim. We had left a message on Professor Tribe's home answering machine less than one hour earlier, and we had sent Professor Tribe an e-mail requesting comment just 10 minutes earlier. We expected his reply.

We were, however, perplexed by Professor Ogletree's referrence to "Tribe's rebuttals over the decades." Consequently, we called Professor Ogletree's cell phone again. We left him a message repeating his quote and asking him to explain what the second part meant. Had we been so negligent in our background research to have missed "Tribe's rebuttals over the decades"? Professor Ogletree did not respond to that message. Without further explanation from Professor Ogletree, we could not print the second part of his quote. We printed Professor Ogletree's confirmed, unambiguous assertion that The Standard's charges were "nonsense."

We are surprised that Professor Ogletree did not come to us with his concerns about the article. We feel that it would have been more appropriate for him to contact us before publicizing his objections. We have written to Professor Ogletree asking that he discuss the issue with us, but he has yet to respond. While we would prefer that this dispute be resolved in private, we feel that we must correct Professor Ogletree's inaccurate portrayal of our Sept. 26 conversation.


Daniel Hemel
Crimson Staff Writer

Lauren Schuker
Crimson Staff Writer

[I]n response to your note [on Ghost Writing]

Dean Velvel:

Thanks for your kind words. I have some further thoughts in response to your note. In many ways, I don't think we're all that far apart in our thinking.

As to the subject of credit, perhaps I've just been lucky, as I've never run into an instance where an executive I've worked with hasn't taken the time to say thank you during and after the completion of a project.

Executives know what I do, and so do my colleagues and my boss. I've never felt unappreciated. However, I seem to gather from what I read that many in academia don't seem to feel the same way.

As I've spent my entire career as a corporate employee, I can only speculate as to why this is. Perhaps it might be time for some professors to review how they utilize, and treat, their graduate assistants?

Some other thoughts:
When Judge Posner puts his name to a law review article, that byline indicates that he's taken the time and effort to produce that piece himself, and that it reflects his thinking and effort. It also indicates something to the members of his peer group and the legal community as a whole. Compare this to a corporate CFO, or the head of an accounting firm when they append their signatures to an annual report. Both the CFO signature and the judge's byline convey thruthfulness and authenticity -- but in subtley different ways.

With Judge Posner, the byline conveys original academic thought. With the CFO, the signature conveys the veracity of the attached statement. Obviously, he wasn't involved directly in producing every last piece of data -- but that doesn't detract from the particular message his signature conveys -- that of the credibility of the data presented.

Finally, I hope that I didn't leave you with the impression that corporate executives simply pick up a speech draft and perform it with little or no interaction. The executives I've worked with are intimately involved in the crafting of the speeches they deliver. Normally, when I sit down with the person I'm writing for, the meeting can last anywhere from 30-90 minutes depending on the subject.

Add in an extensive editing process (outlines and the like), and I think it would be difficult to characterize corporate CEOs as uninvolved when it comes to their speaking engagements.
I think it's also important to point out exactly what happens during this process. In essence, during these conferences and the extensive discussion, the speech, in an ideal world, begins to belong to the speaker. It reflects his ideas and beliefs, not the writer's.

Trust me, when a corporate CEO rises to a podium at a venue like the World Economic Forum or a Wall Street Boardroom, many, many hours of preparation and careful consideration have taken place before the final sound check.

The stakes are too high for it to be any other way.


Eric McErlain

Wednesday, October 06, 2004

Re: On Ghost Writing

Dear Mr. McErlain:

I appreciate receiving your email. You make comments that should be put in front of people, so I am posting what you said, along with the following brief responses to some of your points.

  1. A fundamental social question is that of honesty. CEOs could say "I would like to thank all those who helped greatly with this speech [or article]." That would honestly tell people that the work is not that of the CEO alone. Nor would it sound like an Oscar acceptance speech that specifically names each of a large cast of characters.
  2. Much academic work is collaborative, no less than in the corporate world. Collaborators should receive proper credit in the academic world, and, in my judgment, in the corporate and other worlds also.
  3. I am aware that executives are enormously busy. But then, so too are a lot of academics. So are some judges -- Dick Posner, for example, has written over 30 serious books and hundreds of articles, and the vast preponderance of the books and articles, I would guess, were written while he was a judge and was therefore writing judicial opinions too. If academics and judges can write their own stuff in addition to many other things they do, why can't top corporate guys?

And consider this: if corporate guys would write more of their own stuff, instead of focusing exclusively on "a thousand other priorities," perhaps this would help them think better about, and more successfully address, some of their business problems.

To conclude, let me thank you again for your trenchant email. The email bespeaks the fact that you obviously are quite good at what you do.

Lawrence R. Velvel, Dean

----- Original Message -----
From: Eric McErlain
Sent: Wednesday, October 06,
2004 11:51 AM
Subject: On Ghost Writing

Dean Velvel,

I found your blog via a link at the Volokh Conspiracy and was very interested in your email exchange with Judge Posner on the culture of writing. After kicking things around for a while, I thought you might appreciate some perspective from someone like me who works as a speech writer.

The bulk of my career has been spent writing and preparing speeches, video scripts, magazine articles and even the odd book chapter for a variety of corporate executives. I've worked for a Fotune 500 company, an Internet high flyer, and am now employed at an industrial trade association in the Washington area.

While I can see your point about how doing your own writing is a vital component of superior legal scholarship, I don't see the same connection in the corporate arena. For a law professor or a judge, writing and research are intrinsic to the profession. But while superior writing skills are always helpful to any CEO (or any business professional for that matter), it simply isn't an intrinsic part of the job the same way it is for a law professor or a judge.

For a corporate CEO, the most precious commodity is time, and how to use it wisely. Spending 7-10 hours (or more) outlining and writing a speech simply isn't a terribly productive way to spend your day, not with a thousand other priorities -- like grilling a sales VP over why his revenue projections are off -- begging for attention.

I should also point out a major cultural difference between academia and the world of business. In academic writing, there is a premium put on the effort of the individual, that someone is using their own wits and smarts to conquer some concern or issue without much help or intervention from others (just as it is in the classroom). In business, the process of problem solving instead is collaborative. For example, at one telecom company I worked for, it wasn't unusual for a number of different executives to take credit at one time or another for the incredible success of one high profile marketing campaign.

Was somebody lying? No, not necessarily, as each and every one of those executives was involved in one way or another with some aspect of a program that eventually generated hundreds of millions of dollars of new revenue. Credit, in the end, didn't matter, only financial success.

That sort of collaborative arrangement extends to speech writing as well. For example, the project I'm working on now was kicked off by a team meeting with five other executives who all expected that their input would be included in any draft that I create. In addition, my first draft would, in part, be based on some internal documents that my organization has already developed.

Once I complete a first draft, the speech will likely be vetted by all five of those execs, and that's before the CEO gets his first shot at the draft. If he took the time to thank everyone who helped with the presentation from the podium, it might start to look like an Oscar acceptance speech.

There is one area where you are right beyond words, and that's in the wholesale failure of the education system when it comes to writing. I can remember from my days in high school when I first discovered that I actually liked to write, just how much many of my peers struggled with the written word. By the time I made it to college, I was convinced that I could make more than a decent living taking advantage of this. It's been 15 years, and I haven't been proven wrong yet.

By the way, I also run a sports blog, a welcome relief from my professional duties.

Best wishes,

Eric McErlain
Off Wing Opinion
"Commentary For The Free Market Sports Fan"
Named By Forbes As One Of The best Sports Blogs

Tuesday, October 05, 2004

Re. Re: ...The Ogletree Transgression

This blog recently received an email from a lawyer who made very valuable comments but does not want to be identified. The lawyer has, however, given permission for the email to be reproduced with all identifying information redacted. The redacted version appears below:
‘[T]he real scandal of legal academia is that law review editors do so . . . much work on many articles, including ones by prominent professors, in some cases enough to deserve co-author credit or at least significant mention in the first footnote. I surmise that the problem is especially true at "speciality" journals, . . . which tend to take weaker articles in the first place. >From my experience as editor-in-chief of [a law review], I know that a number of professors whom we published went on to bigger and better jobs and gained reputations on the basis of articles that were barely publishable when we accepted them and became decent only b/c of the work our staff put into them. Why did we accept them then? Well, we existed and we had to publish something. Imagine the stuff we rejected.

Monday, October 04, 2004

Re: Professor Ogletree’s Response

Dear Colleagues:

A September 29th posting on this blog strongly, even harshly, criticized Professor Ogletree. Here is what was said, in full relevant part:

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.

Whenever someone is criticized here, he or she (so far I don’t remember any she’s, however) is asked if they would like to respond. Professor Ogletree was asked. He has responded. Set forth below are the relevant context of what appeared in The Crimson, and Professor Ogletree’s response to me.

The Crimson wrote:

‘I have immediately written an apology to Professor Abraham, whom I -- like so
many others -- hold in the highest regard,’ Tribe said in his statement.

The 83-year-old Abraham, who is retired from his post as a law professor at the University of Virginia, could not be reached for comment yesterday.

But both Ogletree and Dershowitz jumped to defend their colleague from the charges leveled against him.

Ogletree, speaking to The Crimson yesterday, dismissed The Standard’s allegations against Tribe as ‘nonsense.’

Professor Ogletree’s response says:

My ‘nonsense’ response was to the claim that Professor Tribe would NOT respond
to the charges. He responded the very day that the matter was brought to his
attention, as I imagined he would. Nothing else was said or should be implied
from my comment. [Emphasis in original.]

There obviously is what one might politely call a disjunction between what The Crimson wrote and what Professor Ogletree wrote. To explicitly state the utterly obvious, The Crimson says Professor Ogletree called the charges against Professor Tribe nonsense. Professor Ogletree says he called the idea that Professor Tribe would not respond to the charges nonsense.
This all seems quite unfortunate. For either The Crimson would seem to have quoted Professor Ogletree horribly out of context (as the blog suggested might be possible), or there was a misunderstanding somehow, or Professor Ogletree’s response is not true.

In view of what the first and last of the three possibilities might mean, it would seem desirable for the dramatis personnae to try to clear up what caused the disjunction. One is sorely tempted to think, one surely wants to think, that there was some sort of misunderstanding on one side or the other, or even on both sides. But one doesn’t know. Given the unhappy meaning of two of the alternatives, the parties should try to clear up what happened.

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.