Re: Larry Tribe, Larry Summers, And Elena Kagan: Because Of The Larry Tribe Affair, It Is Time For Larry Summers To Go ...

April 22, 2005

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Re: Larry Tribe, Larry Summers, And Elena Kagan: Because Of The Larry Tribe Affair, It Is Time For Larry Summers To Go. And He Should Take Elena Kagan With Him.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Harvard University is now probably the only school in the country with a University Professor who is an admitted plagiarist. Being a University Professor at Harvard -- where, I have variously read, there only are either 17 or 19 of them out of a faculty of approximately fifteen hundred -- is supposed to be a great honor. One would think a University Professor should not only be highly accomplished intellectually, but a person of impeccable intellectual integrity. One would think wrongly, apparently.

Larry Summers appointed Larry Tribe a University Professor. Then the bad stuff hit the fan, as it was learned that in the mid 1980s Tribe wrote a book in which he both plagiarized from and extensively copycatted a book by a University of Virginia professor. But Larry Summers now has imposed no punishment on Larry Tribe. (There seems to be a conspiracy of Larrys from which I am excluded.) Oh, in an announcement dated Wednesday, April 13th and issued on April 14th, Summers did say that what Tribe did was "a significant lapse in proper academic practice." But of punishment there was none, not even the loss of Tribe’s title and position of University Professor.

As far as this writer can see, the failure of punishment by Summers should be the last straw with that guy. After what seems to have been a never ending series of contretemps and foul-ups, Summers’ failure to visit even the slightest punishment on Tribe, Summers’ gross failure to uphold intellectual integrity, is further proof -- if further proof were needed -- that he is not fit to lead Harvard or any university. He should be fired. And when he leaves he should take Elena Kagan, the Dean of the Law School, with him. They are a combined embarrassment.
* * * * *

Readers of this and other blogs will have a good idea, and readers of the media will have some but less of an idea, of what occurred prior to Summers’ announcement dated April 13th. Last fall Tribe made a public statement defending the indefensible actions of his colleague Charles Ogletree, who committed plagiarism -- and who, it now seems to have become widely accepted after analysis here of his supposed apology suggested the possibility of ghostwriting, had parts of a book written for him by assistants. Tribe was taken to task here for his statement defending Ogletree, and was offered an opportunity to respond to this criticism and to a very critical additional comment, posted here, from a famous writer of the left, Michael Parenti. Respond Tribe did, saying, among other things, that "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." In his next sentence Tribe then went on to criticize this writer for issuing criticisms without knowing the full story: "I do wish, though, that its exploration [i.e., exploration of the "phenomenon of some significance"] could be separated in the interest of human kindness and simple decency as well as that of accuracy, from public excoriation of individuals and episodes about which your knowledge is necessarily limited."

This author then sent a responding email to Tribe requesting permission to post his email plus the response, and taking issue with the criticism he had made. The email to Tribe said:

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

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

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

As said, please let me know if you object to the posting of your email and this response.

No more was thereafter said by either Tribe or myself regarding the criticism he had made. This, one believes, is fortunate for and reflects good sense by Tribe, since his point would seem to be utter bushwa designed on the spur of the moment to try to put down a critic of his liberal colleague. (One cannot imagine him, for example, taking the same position about those who criticize (long secret) policies of the Bush Administration, even though the critics’ "knowledge is necessarily limited" regarding the policies.)

Tribe’s other comment -- about the "larger problem" of people "passing off the work of others as their own" being a "phenomenon of some significance" -- did not depart so quietly, however. Apparently a law professor who knew what Tribe had done (I haven’t the foggiest who the professor was) got incensed by a comment he or she considered hypocritical, and blew the whistle on Tribe’s plagiarism and copycatting to Joseph Bottum, a conservative author who then wrote for The Weekly Standard (and now writes for First Things). The professor, according to a subsequent article Bottum wrote in The Weekly Standard, "suggested we take a look at Tribe’s own [1985] God Save This Honorable Court if we wanted to explore the ‘problem of writers . . . passing off the work of others as their own.’" (Ellipsis in Weekly Standard article.) Bottum looked at the book and then wrote a 4,717 word article detailing instance after instance in which Tribe’s book plagiarized, or without attribution copycatted, from a 1974 book entitled Justices and Presidents: A Political History of Appointments to the Supreme Court, by University of Virginia Professor Henry J. Abraham.

In addition to giving examples -- and it is one writer’s understanding that he has many more of them -- Bottum said the following as a more general matter: "The historical sections of the book typically consist [emphasis added] of a long passage from Abraham crunched down by rephrasing and the elimination of detail -- as one might expect when Abraham’s 298 pages of material are made to provide the facts around which Tribe builds his own thesis in [only] 143 pages of text."

When it comes to the examples themselves, not all of the ones given by Bottum seem greatly convincing; some might be thought a stretch. But others are simply devastating: there can be no mistaking that they are outright plagiarism or very close copycatting. There is one "identical nineteen-word passage in both books: ‘Taft publicly pronounced Pitney to be a ‘weak member’ of the Court to whom he could ‘not assign cases.’" There are two sentences that are very close. Abraham said, "But almost at once the Chairman of the Senate’s Judiciary Committee, George W. Norris, made it plain to the President that he and his fellow committeemen, largely Democrats and Progressive Republicans, would insist on a judicial liberal in the Holmes mold." Tribe said, "The chairman of the Judiciary Committee, Senator George Norris, immediately made it clear to President Hoover that he and his fellow committee members, mostly Democrats and Progressive Republicans, would insist upon a liberal jurist in the Holmes mold."

Bottum sets forth a borrowed inversion ‘"Abraham has it that Caleb Cushing was unquestionably highly qualified and possessed of a superb mind."’ Tribe inverts the clauses to say that "Cushing was possessed of a fine mind and undoubtedly highly qualified." Tom Clark takes a virtual identical hit. Tribe said, "One periodical characterized [Tom] Clark as a ‘second-rate political hack who has known what backs to slap and when." Abraham says that Harold Ickes said in the New Republic that ‘"Truman was under no obligation whatsoever to this ‘second-rate political hack who has known what backs to slap and when.’" There is even a sentence in which, Bottum says, Tribe repeated a small mistake made by Abraham in a quotation he took from Justice Cardozo. According to Bottum (whose claim is easily checked and has not been denied), in his famous work entitled The Nature of the Judicial Process, Justice Cardozo, speaking of Chief Justice John Marshall, said "‘He gave the constitution the impress of his own mind.’" (Emphasis added.) Abraham, however, mistakenly quoted Cardozo as saying, "‘Marshall gave to the constitution of the United States the impress of his own mind.’" (Emphasis added showing differences in the two quotes.) Tribe, says Bottum, simply copied Abraham’s mistaken use of the name "Marshall" instead of use of the pronoun "he."

One other aspect of Bottum’s article was of great importance, though it seems to have been little commented upon after the article came out. Ron Klain is a Washington lawyer who was Chief of Staff for Vice President Gore. Back in the mid ’80s, when he was a first year law student at Harvard, he had been a student assistant for Tribe. Bottum quoted a Washington law newspaper, called Legal Times, as saying in 1993 that "‘Klain spent most of his time with Tribe working on God Save This Honorable Court.’" Bottum subsequently adds, again quoting, apparently still from Legal Times, "‘Many of Klain’s friends and former colleagues say that he wrote large sections of the book, a claim that Tribe disputes.’"

Somehow or other these statements, as said, attracted little attention, not even from this blogger, even though, by the time Bottum wrote them, it seemed pretty clear that a major transgression by Ogletree was that student assistants had written parts of Ogletree’s book for him. If one were to speculate on why, in such circumstances, little attention was paid to Bottum’s statement about Klain possibly ghostwriting large sections of Tribe’s book, the speculation might well be this: Immediately after Bottum’s article appeared online, Tribe, in what certainly seemed to be a very proper and manly action, "issued a statement . . . acknowledging that passages in his 1985 "God Save This Honorable Court" were borrowed from a book written in 1974 by Henry J. Abraham . . . . In his statement, Tribe said, ‘I personally take full responsibility’ for not crediting the material borrowed from Abraham . . . . ‘My well-meaning effort to write a book accessible to [laymen] through the omission of any footnotes or endnotes . . . came at an unacceptable cost: my failure to attribute some of the material The Weekly Standard identified.’" (The foregoing, including excerpts from Tribe’s statement, and also including the internal ellipsis, is from the Los Angeles Times of September 29th. Tribe’s statement apparently was initially sent to The Harvard Crimson, and much of the same material appears in the September 27th Crimson as in the LA Times. I do not know if Tribe himself also sent the statement to the LA Times.)

Tribe, the LA Times added, also "said he ‘immediately’ wrote a letter of apology to Abraham."

So Tribe immediately said mea culpa, criticized his own conduct, and apologized to Abraham, all of which is conduct that, one suspects, caused people to think, "well, he’s admitted his guilt, which is a proper thing to have done. Moreover, though he admitted borrowing, he has denied the accusation of ghostwriting. So, in the circumstances, let’s not browbeat him to death, so to speak, about the ghostwriting possibility." This is, at minimum, why this writer believes he overlooked the unhappy possibility of ghostwriting -- an oversight to which I plead guilty and now consider pretty much unforgivable. Yet, inevitably, one also has to wonder whether Tribe’s immediate apology was not only proper and manly, but also cleverly warded off deeper inquiry.

After Tribe’s apology, not very much seems to have gone on that came to public notice, as far as I can tell. Oh, this blogger did say in a post of December 15th that Summers and Kagan had said nothing about the Tribe matter, had not even announced the formation of a committee to investigate, which is what is usually done in academia to kill a problem. It was further said here that, as old Washington hands who know that the attention span of the press is as long as a fingernail is deep, Summers and Kagan were perhaps just lying low, knowing that if they said nothing the problem would probably go away. But for things to be said on this blog is not to be confused with those things coming to public attention, and very little if any public attention was paid to the Tribe matter.

It now turns out that, as disclosed in the joint Summers/Kagan statement (the S/KS) of April 13th, at some point -- one doesn’t know when -- Summers and Kagan appointed a three person committee to investigate the Tribe matter. The committee members were the highly prominent Derek Bok, the former Dean of the Law School who thereafter was President of the University for many years, Jeremy Knowles, the former Dean of the Faculty of Arts and Sciences, and a University Professor and Harvard University Librarian, Sidney Verba. (A librarian named Verba -- it’s too much.) According to the S/KS, the three committee members "inquire[d] into the circumstances by reviewing the materials and speaking with the individuals principally involved. They in turn reported their factual findings to us." Whether the report was written or oral is not said. If written, it was not released.

The S/KS begins by saying that an article "contended" that Tribe’s book "contained a number of passages or phrases not appropriately "attributed" to Abraham. Upon learning of this claim and reviewing the books, the S/KS continues, Tribe "promptly issued a public statement acknowledging his failure to properly attribute some of the material identified in the magazine article, and taking full responsibility for that failure. He also sent a letter of apology to Professor Abraham."

Subsequently, the S/KS says -- the S/KS admits might be better phraseology -- that "it is apparent that [Tribe’s work] contained various brief passages and phrases that echo or overlap with material in the Abraham book, and that he failed to provide appropriate attribution for them." The S/KS then proceeds to make excuses for this. "We have taken note," say Summers and Kagan, "that the relevant conduct took place two decades ago." They have taken note, they say, that "Tribe’s book (written without footnotes and for a general audience) mentioned the Abraham book in a concluding bibliographic note." They have taken note that "the unattributed material related more to matters of phrasing than to fundamental ideas" (a most dubious assertion, one could think). They "are also firmly convinced," they continue, "that the error was the product of inadvertence rather than intentionality." "Nevertheless," they further continue after applying all the foregoing coats of whitewash, the conduct was a "significant lapse in proper academic practice" and, "however inadvertent," was "a matter of serious concern in our academic community." It was, one sarcastically notes, of such "serious concern in our academic community" that, without any punishment being imposed, Summers and Kagan "now consider the matter closed" and, as per "usual University practice," will make "no further comment on the matter."

What can one say of this travesty? Only, I suppose, that it is a travesty. Its language is misleading, its logic miserable, and its spirit corrupt. And all of this obviously was done in the true Washington, D.C. spirit of a whitewashing spin worthy of a Clinton or a Johnson or a Nixon or a Bush.

Let us parse the S/KS:

Bottum’s magazine article merely "contended" that Tribe failed to properly attribute phrases and passages? Bottum merely "contended" this? For God’s sake, not only did Bottum make accusations, but Tribe admitted his misconduct almost immediately. We do not have some mere contention, but an accusation guiltily conceded to be fact.

There were only "brief passages and phrases that echo or overlap" material in the Abraham book? A word for word plagiarism is merely an "echo or overlap"? Ditto the remarkably similar quotes about George Norris? Ditto the investigation about Cushing? Ditto the oh so close statements about the backslapping Clark and about the impress of Marshall’s mind (where even a mistake is repeated)? Right, and we were all born yesterday.

The conduct occurred two decades ago? So what? What does this mean other than that Tribe managed to keep the lid on the scandal, managed to keep it tamped down, managed to hide it, for twenty years? (Do we forgive criminals because their crimes were committed 20 years ago, but they managed to hide them for two decades?) Maybe the fact that the initial misconduct occurred 20 years ago, and was hidden for 20 years, only makes the situation worse, not better.
Tribe mentioned Abraham’s book in a bibliography at the back of his own work? From this one was to deduce that he quoted Abraham exactly or semi-exactly and copycatted him regularly?

The plagiarism and copycatting relate "more" to phraseology than to fundamental ideas. Well use of the comparative word "more" necessarily means some of it related to fundamental ideas. And one man’s mere phraseology may be another’s fundamental idea. (One man’s Mede is another man’s Persian, as George S. Kaufman once said.) And since when did it become academically permissible to plagiarize or copycat phraseology? Since when did that become a defense to plagiarism? That it is now a defense is news to me.

Tribe acknowledged his failure to attribute and sent a letter of apology? Why didn’t he do it 20 years earlier? Why didn’t he do it 12 years ago when a question arose in Legal Times? Why did he wait until the excrement was hitting the fan because of the extensive article by Bottum, the Ogletree matter, and such other unhappy matters as those involving Harvard-connected people like Kearns-Goodwin and Dershowitz, not to mention the Stephen Ambrose situation. In short, why did Tribe wait until it was obviously very dangerous to wait any longer?

And then there is the question of why were Summers and Kagan so "firmly convinced that the error was the product of inadvertence rather than intentionality"? Perhaps because Tribe said so. But there is another possibility too, one to which we shall return later, a possibility identical to the one in the Ogletree matter. Perhaps Tribe did not advertently or intentionally make the error because the error was not made by him. Perhaps it was made by one or more ghostwriting assistants, and Tribe could not even know that what he or she or they were writing was identical to or a copycat of what Abraham wrote.

Regardless of this last possibility, however, it is clear that the putative "logic" of the S/KS is only putative. The S/KS is, in reality, a whitewash, a whitewash that avoids punishing a celebrity star professor who, despite his stardom, did something quite wrong and got away with it for two decades. It is further proof of what we all know. If you are a big enough deal and can hide your misconduct for long enough, nothing will ever happen to you. Nothing will happen no matter how heinous, or even criminal, your conduct. Johnson, Bush, McNamara, Nixon, Kissinger, Clinton, Bush II -- nothing has or ever will happen to those guys because they are huge big deals and their bad acts recede ever more into the past. Ditto Larry Tribe. (But, needless to add, if the cops finally find some poor schmuck who embezzled money or robbed a store 15 years ago, off he will go to the slammer.)
* * * * *
Summers and Kagan were not the only ones to put their names to a statement dated April 13th and issued April 14th. Tribe did so, too. (There was obvious coordination. In fact, in an email to a Crimson reporter forwarding the S/KS to him, the Harvard public relations man handling the matter, Mike Armini, said that Tribe too is releasing a statement that Armini would have soon and Armini could email Tribe’s statement, too, to the reporter.)

Tribe’s statement was more or less a rehash. He said the problem had occurred "two decades earlier," that he had sent Abraham a letter saying that he had "singled out his book in a bibliographic note as the ‘leading history of Supreme Court appointments,"’ but this "general acknowledgment was no substitute for more precise attribution," and that he had "issued a public statement apologizing to Prof. Abraham, acknowledging my lapse and accepting full responsibility for it." Nothing new here.

But then he said that, because he did not think he should comment while Summers and Kagan "reviewed the results of the inquiry," he had "said nothing further about this 20-year-old error, even as I have seen some mischaracterize it as intentional theft of another’s ideas and have watched as my character and integrity have been impugned." He then said, correctly, that though they had said he was guilty of a significant lapse in good practice, Summers and Kagan had found his error to relate more to form than substance and to be inadvertent rather than intentional. He reiterated his "apology for that error and my assumption of responsibility for it," expressed gratitude "that the University’s inquiry found no basis for accusations of dishonesty or intellectual theft," and said that "like the University, I now consider the matter closed and will not comment further about it."

Now, there’s not much wrong with what Tribe said. It is true that one wonders how he can have any right to complain that "some characterize it as intentional theft of another’s ideas and [he has] watched as my character and integrity have been impugned." After all, he did put his name to a work that plagiarized and copycatted, and this is dishonest and contrary to the academic ethos. So he is guilty of academic theft by virtue of either intent or sloppiness, each of which fails to consist with integrity, and each of which creates dishonesty, whether advertent or negligent. Each of which does these things, that is, unless he could not know of the plagiarism and copycatting because someone else wrote the material for him -- which raises a different, and some feel far worse, set of problems.

As for his statement that he will not comment further, this is a smart thing to do, since the less he says, the more likely the problem is to go away, especially given the media’s nearly non-existent attention span. Indeed, except for one small article in The Boston Globe that did little but parrot the statements dated April 13th (and, of course, an article in the Harvard College newspaper, The Crimson), the media thus far seems not to have carried news of what Summers and Kagan did. Little wonder given the ineptitude of our mass media and their oft shown lack of concern for honesty. Tribe understandably would like to keep it this way, i.e., would like there to continue to be no comment in the media, and not talking is the best way to accomplish that. As well, being able to say "I have said I will not comment further" may be a good way to at least try to avoid a certain other question which, as we shall see, could prove very embarrassing.
* * * * *
Let us turn now to the ghost in the room, to the question of ghostwriting. The question is, did one or more student assistants -- perhaps Klain, perhaps others -- write parts of Tribe’s book, so that it was really student assistants, not Tribe, who did the plagiarizing and copycatting? And, if this did occur, so what?

At present, an ordinary member of the public cannot know whether the book was to some extent ghostwritten for Tribe. It is possible, of course, that Bok, Knowles and Verba learned the answer to this question, and that they told Summers and Kagan. Indeed, it has been suggested to me, somewhat bitterly, that the reason Summers and Kagan can be certain the plagiarism and copycatting were inadvertent on Tribe’s part is that they know one or more assistants, not Tribe, wrote the offending parts of the book. But none of those five Harvardians are talking as far as I know. Klain, and perhaps other Tribe assistants of the period also will know the answer to the question of ghostwriting, but either nobody has asked them or they too are not talking.

There are, however, some general ideas and some facts that could lead one to speculate that there might have been ghostwriting here. Ghostwriting, horribly enough, has become all too prevalent in academia as a general matter. The situation is not as bad yet in academia as in business, politics and government, where ghostwriting is the order of the day -- there is a bitter saying that in government you never write what you sign and never sign what you write. But it nevertheless has become reasonably common in academia. The Ogletree and Tribe matters were catalysts leading to numerous articles and Internet postings giving examples of it and/or complaining about it. It appears that student assistants and graduate students are made to do this for their bosses with some unfortunate regularity.

Then, too, at the Harvard Law School itself, it is pretty clear and is now widely accepted that ghostwriting was involved in the Ogletree matter. As well, the famous Harvard Law Professor Alan Dershowitz made a pregnant comment in an email to me in response to a criticism this blogger had made of his position vis a vis the Tribe matter. This writer criticized Dershowitz’s view that different standards apply in the legal profession, including legal academia, than elsewhere because of a "cultural difference." This supposed cultural difference was said to arise from the fact that judges use the language of briefs and of clerks’ memoranda when drafting opinions, and lawyers use the work of assistants. In responding to this writer’s criticism, Dershowitz said that his point "was in no way intended to provide any kind of a justification for plagiarism," but was made "in the related but different context" of "the problem of lawyers and law professors assigning drafting responsibility to research assistants -- a phenomenon that may well lead to accidental plagiarism." (emphasis added.) What we have here, then, is one of the major celebrity professors at Harvard (and a fellow whom this writer, at least, considers intellectually "top drawer") saying in effect that law professors do have assistants write their stuff and that this causes accidental plagiarism.

Then there is Tribe’s own, conceivably significant phraseology in apologizing for the failure to attribute material to Abraham. "I personally take full responsibility," he said. (Emphasis added.) He personally takes full responsibility? If he wrote the stuff himself, who else should take responsibility? The only way that use of the phrase I personally take full responsibility makes any logical sense is if someone else was involved and made the mistake, but Tribe is taking the responsibility unto himself, much as, say, a captain in the Royal Navy of Nelson’s day was held personally responsible for everything that happened on his ship even though he had no part in or knowledge of it (is it the same in today’s navies?), or much as Nixon used to Nixonesquely say he accepts responsibility for the terrible things done in his name though he had nothing to do with them.

Of course, it has to be said that people don’t always use the word "personally" in this logical way. Instead they use it merely as a sort of emotional way of emphasizing something. For instance, a person will say "I personally think" this or that. Well of course the individual personally thinks it -- who else would be inside his brain thinking it? The use of the word personally here is not a matter of logic, but a device for emphasis. Maybe that is how Tribe used it.

Similar points can be made about language used in Tribe’s statement dated April 13th. He said that when news of his "lapse" broke, he issued a statement "accepting full responsibility for it." He later said he was reiterating "my assumption of responsibility for it." Now why would Tribe "accep[t] full responsibility" unless someone else were in fact at least partly responsible, and why would he reiterate his assumption of responsibility unless someone else were responsible? His choice of words makes it seem like someone else was involved, and that someone else would be student assistant(s) who wrote the offending material. On the other hand, maybe, like use of the word "personally," words were not chosen for their strict logical content, but rather were just ways of giving emotional emphasis to the statement that he is responsible for what happened.

There is one last evidential point, although it is more of a subjective impression than anything else. When one reads Bottum’s many examples of copycatting, some or even lots of them seem pretty unsophisticated, as if they were not done with the kind of skill that one would expect Tribe to show. They seem to be more like what one would expect of a student than of a Tribe. You know, there are those who feel, as do I, that the situation in which Tribe has found himself is, proverbially, between the rock and the hard place. Either he did the bad stuff himself and truly is "personally" to blame for it, or someone else did it for him, which creates its own reasons for blame. It is ironic that one of these poles -- the "he did it by himself" pole -- gives rise to the impression that, if he did do it himself, he doesn’t even seem to have done parts of it in a very sophisticated way.

In the current situation, then, members of the public cannot know whether parts of Tribe’s book were ghostwritten or not. Tribe could do much to rid himself of the suspicion if he were to make two interrelated statements, interrelated statements very similar to the two that Ogletree declined to make. The two statements are:

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 my book.

2. Although I received and adopted facts, ideas, and suggestions from others, including assistants, those facts, ideas and suggestions were not presented to me in the form of drafts that were already written into the book or that I put into the book. Rather, I myself wrote the language in the book that reflects those ideas and suggestions.

If Tribe were to make these two statements, most of us likely would accept them as true. That would be the end of the matter unless former assistants denied the statements’ accuracy -- which one doubts would occur because one still has faith that Tribe would not make the statements if they were not true (and would not risk his statements being denied by someone who ghostwrote the book if it were ghostwritten). But to display my own bias about what seems to have been going on in academia generally, and at the Harvard Law School in particular, this writer is somewhat dubious that Tribe can make the suggested statements. However, one hopes very much to be wrong about this. One hopes very much that Tribe can and will make the statements.

Of course, Tribe has said he will not comment further on the matter. So he can always say that he will make no statement because of this. (Now you can see why it was previously said that his declination to comment further could prove a wonderful escape.) But refusing to make the two statements because of the prior announcement of no future comments would be just a dodge -- like Ogletree’s reaction to the possibility of making similar statements. If Tribe can make the statements truthfully, he should make them to put the whole matter at rest.

Let me say, however, that it will not be this writer who asks Tribe to make the statements. He has said he won’t comment further, and this blogger will not chase after him, so to speak, to ask him to make them. One imagines he is likely to learn of the suggested statements in other ways, and, if so, he can decide whether to make them (assuming he can make them truthfully). And if he were not to hear of them in other ways, well, so be it.
* * * * *
Now let us turn to the question of "so what?" So what if parts of Tribe’s book were ghostwritten for him? This is a subject that has been dealt with in other posts, but some relevant points will be repeated because of what one person, at least, thinks to be their importance.

Having others ghostwrite portions of a book, without explicitly crediting them with some form of coauthorship, but instead putting your own name and your’s alone on the book as author, is a form of plain dishonesty and a form of intellectual theft. It is dishonest because it attempts (usually successfully, one gathers) to mislead people into thinking a work is yours and yours alone. It is intellectual theft, because you have stolen, misappropriated, call-it-what-you-will the other person’s work, inevitably doing so to benefit yourself. It is also psychologically unfair to the other person because she is being denied the credit for her work -- while you are instead stealing that credit for yourself.

Now this blogger knows, and it has been extensively discussed and criticized here, that this type of intellectual theft is rampant, is to a large extent the current way of the world. Judges put their own names to work written by their clerks, government officials put their names to work written by underlings, politicians and businessmen put their names to documents written by and claim authorship of speeches written by flacks, subordinates and speech writers. And now it seems, judging by outpourings of complaints and criticisms catalyzed by the Ogletree and Tribe matters, this dishonesty, this moral crookedness, has invaded the academic world as well, big time.

But dishonesty is dishonesty, even if everyone is doing it. It should stop, or be stopped, wherever possible. This is the more true because, as has extensively been discussed here previously, dishonesty in all its forms, from outright lies to spin to withholding information so people will not know the truth, is the fundamental problem leading to the other problems we face, including, by the way, the problem of lack of competent action. Absent a sea change in culture -- which, even if possible, cannot occur quickly -- it is unlikely that most of the current dishonesty can be stopped, including the dishonesty of using ghostwriters. Judges aren’t going to stop using clerks’ work, politicians ditto regarding the work of their subordinates and flacks, and so forth. But it can be stopped, or dramatically reduced, in academia, where the coin of the realm is (at least supposedly) not money, but intelligence, creativity, logic, depth, and analysis, and where a person’s name on her work has long been taken as a sign, in regard to this coin of the realm, that the work is indeed her work, her creativity, her analysis. It can be stopped in academia by a simple expedient: by punishing -- and not lightly either -- those who engage in this theft, in this misappropriation, of coin of the realm, and who inevitably do so, of course, for their own personal benefit in enhanced coin of the realm. In business, where the coin of the realm is money and property, you steal from someone when you take his money or property, inevitably doing so to increase your own coin of the realm. In academia, where the coin of the realm is intelligence, creativity, expression, etc., you steal from someone by using his words or ideas without attribution, inevitably doing so to increase your own coin of the realm. In business the theft is stopped by being, and only when it is, punished. It can and should also be stopped in academia by being punished. And I feel confident in this connection in telling you this: Anyone who engaged in such theft of academic coin of the realm at our law school, and who was caught, could expect to find himself out on his you know what in short order. But, then, we’re not Harvard.

In view of the critical nature of honesty and integrity in writings by academics, it obviously is necessary that this crucial necessity be upheld by punishing someone for doing what Larry Tribe has done, be it "mere" plagiarism and copycatting or, worse in some people’s minds, having parts of a book ghostwritten for him. This is at least as important at Harvard as elsewhere. Indeed, for several reasons, maybe it is even more important at Harvard. One cannot avoid the fact that much of the rest of the academic world looks to Harvard for leadership, and has done so for decades. As Harvard goes, so goes, ultimately, much of the rest of academia, one might say. And Harvard currently is setting a horrible example. (Recently, I note, in preparing a one hour television interview program for Dr. Jerome Kassirer’s On The Take, which decries the commercialization and current money grubbing which has arisen in medicine because of the humongous marketing and pseudo bribery engaged in by big pharmaceutical companies, I read the opinion that it was a multimillion dollar deal between Harvard and Monsanto in 1974 which made it alright for other medical centers to take money, great gobs of it, from big pharmaceutical companies, with results that are sometimes quite bad. This is one very consequential example of how Harvard often sets the standard, which then is followed by others.)

That Harvard is setting a very bad example, with all too much of the bad stuff centered in its law school, is all too evident. Recently, law professor Charles Ogletree admitted that in a recent book he plagiarized over 800 words from another book. Worse yet, it is now pretty widely accepted that parts of his book were ghostwritten by student assistants, including the plagiarized portion, a sin that seems almost certain to have occurred but which Ogletree refuses to fess up to, although he also refuses to make the statements that would put the suspicion to rest -- a refusal that further fuels it. Doris Kearns Goodwin, a historian who is a former member of one of Harvard’s governing bodies, has been caught plagiarizing. There have been allegations, although he denies it I believe, that Alan Dershowitz extensively copycatted in a book he wrote defending Israel. A research scientist left Harvard after he was caught having plagiarized on a grant application. And now Tribe has admitted misconduct, misconduct which may go beyond plagiarism and copycatting to ghostwriting. Need one say that this is an utterly horrible record for, and an awful set of examples to have been set by, the nation’s premier university, the university to which many other schools look for academia’s standards? Terrible results are the only ones that can flow from this kind of horrible record when several of the guilty, particularly big name celebrities, have gone wholly unpunished or escaped with, at most, a slap on the wrist. (I note that Ogletree claims to have suffered some punishment but will not disclose it (as, presumably, neither will Harvard), and one deeply suspects that Ogletree’s supposed punishment, which the dramatis personae insist on keeping secret, is either nonexistent or minimal. Could it, indeed, be much more than the wrist slap given Tribe, since the admitted sins, and the possibility of the additional sin of ghostwriting, are so similar, even identical?

The terrible consequences likely to flow are easy to predict. Other people, at Harvard and elsewhere, are likely to increasingly plagiarize, copycat, and even have stuff ghostwritten for them -- a phenomenon that already seems to be a horrid plague in graduate education from what I read in the press and from what has been emailed to me by persons whose names I know but who do not wish to be identified publicly. Why wouldn’t ghostwriting increase? After all, people will say that it is done at Harvard by very eminent people -- people whose eminence, it must bluntly be said, often stems not just from their work, but also, and perhaps even equally, from years of successfully chasing after the media in order to become celebrities. Since it is done by eminences at Harvard with no more than a meaningless slap on the wrist if they get caught, one might think "Why shouldn’t I do it too? If caught, I will say that it is wrong to do more than slap me on the wrist, since that is all that happens at the country’s premier university. I can only benefit in the overall, since plagiarism, copycatting and ghostwriting, especially when combined with chasing after the press, will make me too a big, or at least a bigger, name, with a (much) larger salary, speaking engagements, appearances at conferences, offers from other schools, lots of assistants, and so forth. On balance, it is well worth it, for on the one side lies fame and fortune, and on the other lies only a slap on the wrist. And, especially if I can hide my misdeeds for years (as seems usually to occur), and in the meanwhile have become a big deal, I am virtually assured of suffering nothing other than a minor slap on the wrist if and when I am finally caught."

None of this, by the way, is any different from what has gone on for years in business and the professions, and in many ways is still going on there though a few of the major moral and ethical crooks involved in our recent big business scandals are now facing jail because some people have finally got fed up with the crookedness. When the only thing that happens to big business violators of antitrust, environmental, tax and other laws is that companies pay fines that are only drop in the bucket to them, these fines are nothing but a cost of doing business, a small cost paid for making huge profits. It is only gargantuan financial penalties, and the prospect of jail for individuals, that brings people up short before they do very bad things. I should add that this is true of our government leaders too; there it is the certainty that there will be no legal penalty of any type that causes the Johnsons and Kissingers and Rusks and McNamaras and Bush IIs and Cheneys and Rumsfelds to engage willy nilly in killing people by the gross regardless of decency, morality and good sense.

Academia is no different, because academics are little better, even if they like to think of themselves as the salt of the earth. Like the businessmen and the political leaders, they will do what gains them fame and professional fortune if the only punishments possibly lying in store are mere slaps on the wrist.

There are at least two other very bad results stemming from the lack of punishment at Harvard. One is that students at Harvard are and certainly should be incensed. The Tribe and Ogletree matters have catalyzed bitter complaints from Harvard students that the university employs a double standard. As the critics say, students are punished for and can be quickly thrown out on their you know whats if they plagiarize or fail to cite or have others write their papers for them. (I have seen no denials of this from the Harvard administration.) But professors, especially big name ones, can do these things and readily get away with them, can do these things and suffer nothing more than a mild wrist slap. The students have every right to be incensed over this gross double standard. They in fact ought to raise hell peacefully about it: a constant barrage of letters, emails, statements -- even peaceful picketing directed against administration culprits -- would not be out of line. (If I am accused of fomenting peaceful unrest at Harvard, my answer is that not only is it unlikely in the extreme that Harvard students would act because of this blogger’s views, but also that it is better to have critical emails, letters, talks and peaceful picketing than to have dishonesty and what in effect is unpunished professional cheating.)

There also is the effect on the Harvard faculty, especially the law faculty. Since it is now known that Harvard professors have plagiarized, copycatted, and pretty certainly have had stuff ghostwritten for them, the bona fides and reputations of nearly everyone at Harvard is called into question, especially people in the law school. After all, how can we know that any particular professor at Harvard hasn’t done these things, especially given the vast number of student assistants at Harvard, and especially in the law school? And given the wrist slap nature of penalties, especially when celebrified big deals are involved, how do we know it won’t be done again and again in the future, again especially because of the numbers of student assistants at Harvard and especially in the law school. It is hard to believe, one certainly does not want to believe, that plagiarism, copycatting and ghostwriting have become common at Harvard, in the law school or in any other school. But the number of cases already uncovered in Cambridge, and the weak nature of the response to them, has to make one wonder -- it has to make one wonder, in particular, whether there was only a wrist slap because ghostwriting by students assistants -- with associated dangers of copycatting and (as Dershowitz said) of plagiarism -- is well accepted at Harvard. The minor, if any, penalties imposed upon the culpable have inevitably put a cloud over everyone at Harvard, including the innocent, because it is impossible to know who is innocent and who is guilty. Frankly speaking, all the innocent faculty members at Harvard should be as incensed as the student body at the weak-kneed response of the Harvard administration to the Tribe and Ogletree transgressions. For the innocent too are under a cloud now.

One other point about this cloud. Does it extend to Derek Bok? Bok, as said, is the former Dean of the Law School and was long the President of the University. As well, somewhat ironically, as we shall see, his wife, Sissela, wrote a highly regarded book about lying and honesty a few decades ago. Bok was asked to be one of those conducting an investigation into both the Ogletree affair and the Tribe affair. In the Ogletree case, Bok said, after investigating, that there was no intentional wrongdoing. Here is what he told The Boston Globe about the matter, as described in this writer’s blog dated September 10, 2004:

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

In the Tribe matter, according to the S/KS, Bok and his two colleagues were asked "to inquire into the circumstances by reviewing the materials and speaking with the individuals principally involved. They in turn reported their factual findings to us." Presumably on the basis of these "factual findings," Summers and Kagan said they are "firmly convinced that the error was the product of inadvertence rather than intentionality." In his own statement Tribe said, "I am gratified that the University’s inquiry found no basis for accusations of dishonesty or of intellectual theft. (Emphasis added.) Presumably the "University’s inquiry" includes the investigation by Bok and two others.

All of which raises a question about Bok. He explicitly said, after investigating the Ogletree matter, that there was "no deliberate wrongdoing at all." Yet it seems nearly a certainty that parts of Ogletree’s book were ghostwritten. After he investigated the Tribe matter, Summers and Kagan said, on the basis of his group’s publicly-undisclosed report, that the mistake was a matter of inadvertence, and Tribe appears to have implicitly confirmed that the (non-disclosed) report finds him not to have been dishonest or guilty of "intellectual theft." Yet, as said before, it is now widely accepted that parts of Ogletree’s book were ghostwritten, there is suspicion and even accusations, which have to be taken seriously, that parts of Tribe’s book were ghostwritten, and it is obvious that if the investigations conducted by Bok and his colleagues were competent (as one presumes and at least hopes), then Bok must know whether there were ghostwriters. So if there was ghostwriting, as seems certain in one case and probable in the other, but in both cases Bok nonetheless found no deliberate wrongdoing, wouldn’t that necessarily mean that Bok, and presumably also his investigating colleagues (who include another former Harvard Law Dean, Robert Clark, in the Ogletree matter), accept ghostwriting as perfectly proper? As not being wrongdoing or dishonest? It seems to this writer that the answer to these questions can only be affirmative. And if the answer is affirmative, doesn’t that lead to the additional question of who has written Bok’s books? Did he write them entirely by himself? Or did he have assistants ghostwrite parts of them?

The short of it is that the results of the two investigations have very obviously put Bok himself under something of a cloud as conceivably being a ghostwritee, if I may put it that way. And the same can also be said, unfortunately, and for the same reasons, about the other investigators, Verba, Knowles and Clark.
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Now let us turn at long last to Larry Summers and then Elena Kagan. This blogger feels, as made clear early on, that neither of them is fit to run their institutions. This feeling has been slowly germinating for awhile, and the non-punishment in the Tribe matter (particularly on top of what appears to also be non-punishment in the Ogletree matter) is the last straw.

My own view about Summers began to crystallize when it became obvious, in the last month or two of 2004, that there would be little if any punishment meted out for the Ogletree and Tribe transgressions, and that Summers was not even going to announce whether a disciplinary committee was looking into these matters. In other words, my own views about Summers began to crystallize when it became obvious that Ogletree and Tribe were going to get away with dishonesty because they were big shot, celebrified law professors. Not being at Harvard, this writer was only dimly, if at all, aware at the time of the claims of extensive bullying by Summers, of control-freakism by him, of manipulation and dishonesty, of secretiveness, of the Alston imbroglio, etc., (this writer was unaware, that is, of claims that in effect hold that Summers has brought a Washington-type spin and control machine to Cambridge). Nor was this writer more than passingly aware of the claims made about Summers’ alleged antipathy to female professors. One did know, of course, of the Cornell West matter.

So it was the Ogletree and Tribe matters that initially got this writer to thinking about Summers. Then, when Summers later made his comments about women in science and mathematics, this writer, after many others had denounced Summers’ fallacies about women’s supposed lack of ability, wrote a lengthy blog dealing with other aspects of his infamous talk and with other aspects of his life and character. That blog criticized the multiple fallacies in his talk’s introduction, where he said we shouldn’t be judgmental about the paucity of women in science and mathematics since there are few Jews in farming, few whites in the NBA, and few Catholics in investment banking. The blog also discussed that Summers appears oblivious to the truly remarkable cultural advantages he had in the field of economics, just as he appeared oblivious to the cultural disadvantages imposed on women in science and mathematics. And, as had Stanley Fish, this writer said that, far from being the genius he is generally portrayed as being, in several respects Summers instead appears to be very unintelligent (to use a mild word). Almost no one else has been willing to say this publicly, even if there possibly are those who think it.

So my view of Summers began going south near the end of 2004 and hit near-bottom with the female professor nonsense. Now, after the result in the Tribe case, it has hit bottom. This guy should, in this writer’s view, either leave or be fired, and one wonders how a faculty and a student body to which he is an embarrassment, with one faculty body already having voted no confidence in him, can do anything other than explicitly call for his departure now that he has let institutional integrity go by the board (in favor of celebrified big deals. Of course, he is a celebrified big deal too.)

Let us briefly "review the bidding," so to speak, on the Tribe and Ogletree matters alone, never mind the other problems caused by Summers. By not punishing these professors, Summers has downgraded honesty and integrity at the nation’s leading academic institution. He has caused respect for honesty and integrity to take another hit in a country where they already are held too cheaply. He has caused our leading university to set a horrible example for all other schools that look to Harvard for leadership and for professors at all those schools. He has promoted a double standard for students and faculty. He has caused doubt to be cast on almost all members of the Harvard faculty. He has put forth justifications that are largely hokum.

Is this what Harvard wants in a leader? Is this even what is wanted in a leader by the Harvard Corporation, which governs the University and seems to love Summers? I can tell you that it would not be wanted at our little law school or by our Board of Trustees. But, as said earlier, we’re not Harvard.
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Finally, there is Elena Kagan, who has been Dean of the Harvard Law School since 2001. This relatively new Dean unfortunately got caught by a bad situation -- by the Ogletree and Tribe matters, and by the Jack Goldsmith matter. But unhappily caught or not, she apparently has gone along with non-punishment of Tribe, and she joined Summers in his whitewashing statement about Tribe. She has also gone alone with what appears almost surely to be the defacto (and undisclosed) non-punishment of Ogletree. She has gone along with the hiring and retention of Jack Goldsmith, who apparently played a role and, after publication of The Torture Papers, more than ever seems to have played a role, in the American government’s abominable renditions to other countries for purposes of torture, and who refuses to talk about this matter. As discussed here in a December 15th posting, she was said by The Boston Globe to have defended Goldsmith’s presence at Harvard by telling it, and as far as I know she has never denied that she defended his presence in Cambridge by telling it, that he "‘puts issues on the table that everyone focuses on and debates’" (yeah -- like renditions), that he is "‘a very agenda-setting scholar, and that’s exactly the kind of exciting scholarship that we want to have here’" (he certainly seems to have helped put renditions on the agenda), and that she is "‘as proud of his appointment as I could be.’" So Dean Kagan has gone along with Summers’ bad-results-producing actions regarding plagiarism, copycatting and ghostwriting, and, to boot, is very proud of hiring a teacher who seems to have played a fairly important role in the American government’s abominable and grossly illegal renditions. (Goldsmith’s role is described here pretty fully in the same December 15th post.) All of this seems no more praiseworthy than Summers’ actions, and perhaps, in some respects, worse, because torture is involved. So, in my view, Kagan too should go, just like Summers.*

*This posting represents the personal views of Lawrence R. Velvel. 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.