Jeremy's Weblog

I recently graduated from Harvard Law School. This is my weblog. It tries to be funny. E-mail me if you like it. For an index of what's lurking in the archives, sorted by category, click here.

Saturday, September 25, 2004

I have an opinion on a real issue of some consequence. Regular readers will realize this is unusual. Usually I only have opinions on issues of no consequence. I have one of those this evening too. "Shaun of the Dead" is not a very good movie, but it is not as bad as I feared it might be. It's more graphic than a comedy should be, and a little less funny.

But the real issue I have an opinion on requires some backstory.

A few weeks ago, Harvard Law Prof. Charles Ogletree issued an apology regarding his latest book, "All Deliberate Speed." The apology reads in large part (and I probably shouldn't quote so substantially, but I want to make sure I don't mischaracterize anything):

I write to express my profound apologies for serious errors I made during the final days of the research and production process for my recent book -- errors which resulted in several paragraphs from another book appearing in my own, without quotation marks or other attribution. The errors were avoidable and preventable, and I take full and complete responsibility for them.

During the final stages of the preparation of my book, material from Professor Jack Balkin's book, What Brown v. Board of Education Should Have Said (NYU Press, 2001), was inserted in a draft section of the book by one of my assistants for the purpose of being reviewed, researched, and summarized by another research assistant with proper attribution to Professor Balkin.... Unfortunately, the second assistant, under the pressure of meeting a deadline, inadvertently deleted this attribution and edited the text as though it had been written by me. The second assistant then sent a revised draft to the publisher, compiled from sections of a number of my previous drafts, which included the material from Professor Balkin's book, without identification or attribution. When I reviewed the revised draft I did not realize that this material was authored by Professor Balkin....

I made a serious mistake during the editorial process of completing this book, and delegated too much responsibility to others during the final editing process. I was negligent in not overseeing more carefully the final product that carries my name....

Lawrence Velvel, Dean of the Massachusetts School of Law, reacted on his weblog (and, again, I apologize for quoting a passage of substantial length, but I'm trying not to distort anything):

[T]o me the entire incident further stimulates longstanding concern about, and may in fact reflect, forms of corrupt conduct that have become pervasive in America today. Not just pervasive in academia. Pervasive in America....

What [Ogletree's] two assistants were doing sounds awfully much as if they were writing the book, or at least some parts of it.... Yet only Ogletree’s name appears as the author....

Ogletree doesn’t say "When I reviewed the revised draft, I did not realize that I was not the author of this material." Such a statement would of course imply that he was the author of the rest of the material in the book. But rather than say that, Ogletree said "When I reviewed the revised draft I did not realize that this material was authored by Professor Balkin." (Emphasis added.) Well, how in hell was Ogletree supposed to know that Balkin authored the material (unless Ogletree is claiming that he read Balkin’s book and has a near photographic memory)? Ogletree’s wording smacks of being too clever by half. It smacks of wanting to cover up the fact that he knew and expected that parts of his book were written by others -- by assistants -- and that the problem here was that he assumed the six paragraphs had been written by an assistant while being unaware that they had actually been written by someone wholly unconnected with him. I cannot say whether this logic is true in fact, but it is certainly plausible, and it further stokes the question of who did write portions of this book....

Shortly after the incident, I happened to get access to the e-mail account for the Harvard Law School newspaper, because I'm editing the opinion section. I noticed that some person or organization calling him/her/itself "OgletreeSkeptics" had been sending out "updates" with every news article that mentions the incident. It seems a little obsessive to me, but who doesn't need more articles to read, right? :) Tonight I was copied on an e-mail they sent to the Record's editor that linked to a Weekly Standard article that points out some questionable borrowing by Harvard Law Prof. Laurence Tribe in a book from almost twenty years ago. "OgletreeSkeptics" says in its e-mail, "This is now the third instance of plagiarism by a Harvard Law School professor uncovered in the past year. If that doesn't draw further attention to these issues, nothing will."

Part of why I've extensively quoted from Ogletree and Velvel is because I'm writing this post to say I've written something about this issue, and just put it out there. Because anything I might have to say on the matter is uninformed and unimportant. My opinion is meaningless. But here it is anyway, just so I can say I've written something about it. I feel bad for Prof. Ogletree. And I don't know Prof. Ogletree at all (although I've heard really excellent things about his classes and his teaching, so I'm probably more sympathetic than if I'd heard he was an unpleasant jerk who didn't care about his students). But I feel bad for him because the sense I get is that what he did is something everyone does, and he just got unlucky enough to have research assistants who accidentally messed up and screwed him over. This is bad for academia; it says bad things about the way people write books today; but I think OgletreeSkeptics ought to change its name to AuthorSkeptics and instead of trying to create some momentum around attacking Ogletree, perhaps create some momentum around trying to change the way the industry works, if this is the way the industry works.

I think Velvel is right that Ogletree's assistants probably did a substantial deal more than assistants might do in a world with the highest standards of honesty and integrity. But I think Velvel's wrong to say that it means Ogletree wasn't competent and diligent (which he says in a part I didn't excerpt above), at least given the world in which he works. Well, maybe not. I think he's wrong to say Ogletree wasn't competent and diligent without saying that it probably means everyone else isn't competent and diligent either, and Ogletree just got unlucky.

And here's the problem I see: whether or not I'm right about this being a problem throughout academia and the larger world beyond it, it's not an unreasonable conclusion to draw. And what this means is that if there are professors acting with integrity, and having research assistants assist with research instead of actually writing their books, they get hurt by the implication that there's dishonest stuff going on everywhere. So people start to doubt even the "good eggs," and their reputations get hurt. This is bad. This is bad because it'll encourage people who are acting with integrity now to stop acting with integrity, because everyone's going to assume they aren't anyway, so why not cut corners?

So here's what I think. I think we need better rules. I think we, as a society, need to say this is stupid if this is what's happening, and if people aren't writing their own books, we don't like that. And we should somehow institute accountability -- the tricky part, obviously, is how -- and make a book say somewhere on it who actually wrote it. Under penalty of death. :) No, not really under penalty of death. But under some sort of penalty. Like nutritional labels on food. This way we encourage honesty. I don't know that I mind if professors don't write their own books, as long as the books are good. But I want to know who's writing them, and the people who are actually the ones writing them deserve credit, and deserve their names to be out there, in case the books really are good.

Here's part of what makes me think it isn't just academia. I got an e-mail from someone the other day, in response to my column about clerkships, perkships, workships, and jerkships (scroll down a few days if you have no idea what I'm talking about). He gave me permission to quote him:

...[Y]ou missed the key problem with clerking. The "plagiarismship." You bust your ass writing opinions.... Meanwhile "your" judge is lauded as the most prolific federal judge since Posner thanks to your ass-busting.... If others are going to take credit for my work, let it be partners paying me large sums of money and not a $40,000.00 a year pittance....

Obviously what judges do is not the same as what authors and professors do -- hopefully the judges are making the decisions themselves and the clerks are just writing the opinions... although I guess the analogy could be that the professors are telling the assistants what to write about... but judges are paid to judge well, not necessarily to write great opinions (or are they? really, I don't know the answer), but professors *are* paid to write. So it's different? Maybe?

In any case, I feel bad for Prof. Ogletree if it's the case that everyone else is writing their books the same way he wrote his, because he's bearing the brunt of criticism that I think would more justly be directed at the industry as a whole. Which seems like it's in need of some monitoring and disclosure, or academia is basically one big sham. Which maybe it is. But at least we should pretend there's some integrity. Otherwise I'm not sure why I'm spending so much money to be here.

That's all I've got. :)