Re: Comments On AuthorSkeptics’ Discussions With Professor "A" And Professor Powell

May 26, 2005

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Re: Comments On AuthorSkeptics’ Discussions With Professor "A" And Professor Powell.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear AuthorSkeptics:

I should like to make some comments about a small number of the many points discussed in your correspondence with Professors "A" and Powell.

1. It seems to me that there is nothing wrong in having research assistants find cases, articles, and books for professors to use in a substantive way when writing a piece. However, I believe the professor herself must read and analyze the materials pointed to by the assistant, and must herself do the ultimate writing related to those materials.

As for the creation of (crazed?) string cites, I suppose it is alright for assistants to put those together, although the professor should check them out to be sure each cite stands for the proposition it is claimed to stand for. (This is what Professor "A" called "verify[ing] the citations.") One would be amazed how often citations, at least in briefs, do not support what they are claimed to support.

2. I would think that, in many cases, probably most, an uncredited ghostwriter is not very culpable for the dishonesty perpetrated on the public, although he or she was of course part of the apparatus that produced the fraud. The reason for this view is the vast inequality of position that normally obtains. The ghostwriter, especially student assistants, needs the money, may lack other reasonably accessible or desirable employment opportunities, may need recommendations, etc. She pretty much has to do what she is told. As is almost always true, the person on top, the person with the authority and power, here the professor, is chargeable with the lion’s share of the blame. This is only the more true here because the professor is the one taking credit for what he did not do (which is, of course, a species of personal dishonesty).

One reads and is told, moreover, that there are situations in which this personal dishonesty is of monumental proportions, as when professors simply put their own names on manuscripts produced entirely by assistants. One may perhaps be forgiven for thinking that a professional field -- the academy -- and a society in which this happens and goes unpunished, as apparently is often the case, are a field and a society in trouble because regard for honesty has sunk so low.

There is another unfortunate aspect, too, relating to the use of ghostwriters, especially student assistants (and law clerks as well). It is the code of omerta, of silence and confidentiality, that appears to generally accompany the ghostwriting. As I gather you have found, former ghostwriters, reflecting the enforced norm, are reluctant to talk about what they did, and those who do talk about it find themselves neck deep in dung being flung at them (see, analogously, Edward Lazarus). The code of silence, which one is forced to absorb into one’s very pores, is a method of protecting the ghostwritee (if I may (again) coin that word) against public knowledge that it was not he, but an underling, who did the work. It is a method, that is, of defrauding readers and the public, as well as of obtaining the credit for what one did not in fact do. It is also a method of cheating history by denying it knowledge of the truth -- this is not to be overlooked (though it usually is overlooked).

3. I agree with Professor "A" that we should not "uncritical[ly] . . . accept the practice of judges." One would guess that, as he or she says, "the vast majority of the public doesn’t" "understand" the practice. (I take it that Professor "A" used the word "understand" in the sense of the public being aware of the practice, not in the sense of the public being aware of it but disagreeing with it. But this is no never mind for my agreement with "A.") Professor "A" also makes a most salient point in saying that ready acceptance of ghostwriting for judges also results in "lump[ing]" Posner "with the average clerk-writing judge," instead of giving credit to the judge who writes his or her own opinions.

From what I have occasionally heard, moreover, the situation may sometimes be even worse than generally thought. It is widely thought, and certainly, to use your word, "hope[d]," that (as you said) "it is actually the judge who is initially deciding the case." But one gathers that this is not always so. One has heard that there are lower court judges who tell clerks to decide a motion or case and to then write up the decision. One has even heard that these clerks may still be (young) law students, who therefore are in reality not even clerks, but interns. I rather imagine that if what one has heard is true, and were to be brought to the attention of the public, the reaction could be volcanic. After all, and without meaning any offense, it is hard to believe that most parties would want a 24 or 25 year old youngster, who is not even out of school yet, to be deciding matters of enormous personal importance to the parties.

I also think that the use of ghostwriters by judges should not be accepted on the ground that no fraud is involved, "as the practice seems very well accepted" by the cognoscenti. The problem here is that for the practice to become well accepted, fraud had to be perpetrated, i.e., ghostwriting had to be done, secretly, while the practice was not accepted and therefore could not be admitted, until finally so many judges were committing this fraud that it became widely accepted and no longer fraud. To put the matter crassly, the principle involved is that the way to obtain public acceptance of lying, cheating and stealing is for people to lie, cheat and steal until this is widely accepted as okay. (I gather that there are countries where this kind of thing prevails -- where graft, bribery, baksheesh, etc., and dishonesty, are so prevalent that they are accepted as being permissible, indeed expected, ways of acting.)

So the fact that "everyone is doing it" (as one might say) should not justify the use of ghostwriters by judges. Nor should a judge who does her own work not be regarded as a norm to be emulated just because so many judges do not do their own work. As a profession and a society we seem so often to be engaged in a race to the bottom rather than in a struggle to the top. It would be better for judges to try as much as they can to emulate the example set by Posner than to accept the current (is it permissible to say bottom dwelling?) practice.

Some last points on judges’ use of clerks. The Long Term View is a journal of public policy put out by our law school. Each issue deals with a single topic; the topics are usually not legal ones, but occasionally are legal ones. About ten years ago, in its Spring, 1995 issue, LTV devoted 109 pages to the subject of judges’ use of clerks. The issue was entitled Law Clerks: The Transformation of the Judiciary. There were original articles, reprinted articles and interviews by or with such prominent judges, writers and professors as Abner Mikva, Richard Posner, Patricia Wald, Kenneth Starr, Alex Kozinsky, Andrew Kleinfeld, Mary Ann Glendon, Nat Hentoff, Wade McCree and others. Ghostwriting was one of the subjects discussed. As a whole, the issue discussed the reasons why judges increased their reliance on clerks, the duties of clerks, their degree of influence, and so on. For all I know, the Spring 1995 issue may be the widest, and it certainly seems likely to be one of the widest, compendiums of discussions on the use of clerks, and you may wish to read what some of the authors had to say. The issue is, I believe, in the Harvard library holdings. Also, the issue used to be online, I think, and it will be reposted online at http://mslmedia/LTV/index.htm.

Also in connection with ghostwriting, let me say that I was apparently wrong to some extent in a previous statement to you about ghostwriting by law clerks in the 1950s and early 1960s. I said previously that the reason those of us in Michigan’s law class of 1963 were surprised to learn that a classmate who clerked for Chief Justice Warren had written the reapportionment decisions of June, 1964, was that such things weren’t done in those days, not that they were done but we didn’t know about it. Apparently there was some ghostwriting by clerks in those days that we did not know about. In a recent article in Legal Affairs which bitterly attacks Harry Blackmun, and which is entitled The Brains Behind Blackmun, the eminent Professor Garroway put it this way: "not until Justice Frank Murphy and Chief Justice Fred Vinson joined the court in the 1940s did clerks take the lead in writing opinions and sometimes determine a justice’s vote." Garroway also said that "[s]ome of the best-known opinions of such renowned former justices as Felix Frankfurter and John M. Harlan III were written entirely by their clerks." (Professor Garroway did not say which opinions of Frankfurter and Harlan were written by clerks. Neither did he say how he knows the rest of what he said. But if he made these statements of fact, one thinks they likely are well based and true.) So apparently there was some ghostwriting way back in the mid 20th century, but we Midwestern naifs were innocent of such knowledge.

Moreover, it must be noted that Garroway said clerks "sometimes determine[d] a justice’s vote." This sounds suspiciously like he is saying that "it [was not] actually the judge who is . . . deciding the case," or at least deciding a vote. If this was or is so, it bears on the previously discussed question of whether the situation may be worse than generally thought.

4. Professor "A" has said that you should deal with the ghostwriting problem "in a less judgmental, more constructive way, than the issue seems to have been framed." Here is a fuller text of what he or she said:

. . . I would suggest you deal with this in a less judgmental, more constructive way, than the issue seems to have been framed. It is at least clear that there’s uncertainty about the underlying "norm" and "practice." Rather than adjudicating past behavior in light of that past uncertainty, why don’t you develop a list of principles to which professors can pledge. That would seem a constructive and clarifying procedure, much more constructive than forcing people to out themselves on the basis of an uncertain, and insufficiently established, line of "appropriate behavior." That procedure would still permit the criticism of the extremes -- I take it everyone agrees re the behavior alleged about "Tree" and Tribe. But it would focus attention on setting a standard, rather than defending different lines.

With great respect, I tend to disagree a bit with some of what Professor "A" said. He or she did say that we can all agree about the impropriety of the conduct alleged to have been engaged in by "‘Tree’" and Tribe. So far so good. But I also think punishment is necessary, not merely the setting of standards for the future. Plagiarism and ghostwriting were and are clear, serious no-nos in my judgment, and people should not be let off the hook for these clear violations just because there are matters of less clarity, such as the compilation of string cites, or assistants presenting professors with memos describing what the assistants have found in their research. People who violate clear rules should be punished. Punishment of violations is the only way violations will be stopped. This is as true in the academic world as in the business or political worlds, a subject discussed in my long post about the Tribe matter. Punishment is the only way to stop the Enrons, Tycos, Arthur Andersens, Global Crossings, Johnsons, McNamaras, Nixons, Kissingers and Bushes of this world, and lack of punishment is a major reason why politicians who do evil by violating law are not stopped. Sad to say, people respond to fear and the possibility of punishment far more than to love and sweet reason. Exposure of bad deeds cannot and should not usually lead to nothing but a form of Truth And Reconciliation Commission, if we expect bad deeds to stop. This is no less true for the powerful and influential than for the powerless and non-influential. In fact, maybe it is far more true for the former because of their very power and influence, and the oft accompanying hubris which leads them to think they can get away with things.

5. My last point involves complicity. Professor Powell raises some incredibly salient points about this subject, ranging from bringing in the parallel of Iraq to the fact that most people have other matters to devote their time to. Yet, on the other hand, you seem to me right in thinking that persons, at least collectively through their institutions if not individually, should stand up for honest conduct or be deemed to be to some extent complicit in the race to the bottom.

You know, complicity is not a subject which this country ever seems to want to face. (Are we any different in this regard than the once collaborationist France, a country now despised by right wingers who undoubtedly do not wish to face American complicity in anything, just as France would not face its collaborationist past of World War II.) The American unwillingness to consider national and personal complicity exists even though we are a democracy where people have the right to speak and vote, therefore allegedly can change things by speaking and voting, and thus might fairly be considered complicit for not speaking out or taking action. (Of course, given the nature of our politics, where money and influence seems to be everything, and decency nothing, or at least relatively little, perhaps people could justifiably feel they have no voice notwithstanding the rights to speak and vote.) To this day, lots of southerners deny, or in effect try to deny, the personal complicity of ordinary everyday southerners in slavery, and sometimes even in keeping down blacks for 100 years or more after the Civil War. People do not accept personal blame for Viet Nam. Nor for Iraq. And so forth. This is somewhat paradoxical one might think, since, even though dissenters in Nazi Germany were liable to find themselves strung up by piano wire or hung from meat hooks, few of us would absolve everyday Germans of the 1930s and 1940s of all responsibility for what their country did -- and the post war generations of Germans themselves have apparently felt that their parents and grandparents, and their nation itself, were complicitous. There are also Americans who think -- and certainly China thinks -- that it is wrong of the Japanese to fail to admit responsibility for what Japan did in World War II, and to thereby implicitly deny, or to at least ignore, all personal and national complicity of that generation of Japanese.

The question of complicity is a large one. Not the least of what it involves is the comment by Edmund Burke that the only thing necessary for evil to triumph is for good men to do nothing. In the instant situation, one would judge, at least a significant number of academics should do something. They should speak out about the practice of claiming someone else’s work as one’s own, and about where one draws whatever lines have to be drawn in this regard. This is true not just in law, but also in sciences and other fields where there are professors who apparently have been in the habit of claiming others’ work as their own.*

*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.