Friday, October 15, 2004

On plagiarism, ghost writing, and falsities

Dean Lawrence Velvel had a post from Judge Richard Posner most directly related to the --law as different culture-- remark of Allan Dershowitz in the context of the plagiarism by Laurence Tribe.

From: Richard_Posner
To: Dean Lawrence R. Velvel
Sent: Wednesday, September 29, 2004 2:56 PM

Larry, you make some good points. But it's a losing battle. The problem is that we no longer have a culture of writing. Writing is now a specialty. So judges, politicians, businessmen, lawyers--and now it seems law professors--increasingly hire ghostwriters (whether they're called ghostwriters, law clerks, or research assistants) as specialists in writing. I am one of the dinosaurs who still does all my own opinion writing (and of course book and article writing as well). You probably are too. But let's face it: we're on the road to extinction.

All the best. Dick

September 30, 2004

Dear Dick:

Thanks much for the response. You make a very worrisome point. I would therefore like to post your response and this reply, and since your email does not object to posting your comments, I presume it is okay to post them and the reply. But if it is not okay, please tell me.

To turn to your comments, let me say, first, it is surely not surprising that you do your own work. I would have been stunned if it were otherwise. For paradoxical as it may seem to many, nobody turns out the quantity of first rate work that you do if he has others doing his work for him. This would seem to many counterintuitive, since they would think more could be done if others are bearing part of the burden. But though it is counterintuitive to many, it is nonetheless true. There is an old saying that, if you want something done, give the job to a busy person. That is something that I think a lot of people understand. Yet the idea underlying it is the exact same idea as underlies my view that nobody will be as prolific as you have long been if others are writing his stuff.

You are, incidentally, correct in apparently thinking that I too do my own writing. This shows that one can do one’s own writing but not have your prolificness.

You make the worrisome point that the battle against having others do one’s writing is a losing one because "we no longer have a culture of writing." Thus, people turn over their writing to "specialists in writing," "whether they’re called ghost writers, law clerks, or research assistants." One simply cannot argue with your view of the present culture, i.e., that it is not a culture of writing. But such a culture is a disaster, is accompanied by the unhappy corollary that we no longer have a culture of reading, and in significant measure is attributable to our schools, from grammar schools to post graduate schools. Every effort should be made to change the culture, in my judgment, and the change should be promoted at every level of the school system.

The non-culture of writing, I may add, is also pretty strange in a way. For computers have made it easier and faster than ever to write and rewrite. It is far easier today than it was in, say, the first 60 or 70 years of the 20th century. There are precious few people left who, like me, don’t use a computer and write out everything in longhand.

There are some interrelated reasons why I feel strongly that we should get back to a culture of writing. One is the very question of honesty discussed in the prior posting. Much has been said there about that. But let me add one thing: if people insist on continuing to have others do their writing for them, then, heretical as this may sound to CEOs, politicians and judges, due credit should be given to the others. Perhaps, for example, a judge should say in a footnote in his or her opinion that so and so, a law clerk, assisted in the writing of the opinion. Or perhaps politicians or CEOs should explicitly thank -- i.e., give credit to -- those who helped them.

This may sound bizarre to judges and politicians and businessmen. But others have faced and resolved similar problems by giving credit where it is due. Newspapers, for instance, have faced the problem and have solved it by putting the names of two or more reporters on articles, instead of just one. Or sometimes they say at the bottom of a piece that X and Y and Z contributed to the article.

Thanking others for their help would be the honest thing to do. It would also let readers know who contributed to resolutions of problems or to other work -- or is this precisely the problem because the putative writers don’t want people to know that others contributed to the work. I would say that, if it is the problem, if CEOs, politicians and judges don’t want people to know that they have relied on the work of others, then they damn well ought to do the work themselves, as you do.

But there are other problems, too. One is encapsulated by the old saw that clear writing makes clear thinking. This, as you know, is a way of saying that writing things out stimulates one’s thought process wonderfully. Problems, illogicalities, possible solutions, etc. that one would never have thought of otherwise impress themselves on one if he or she has to write out the matter. (Judges have long had an expression that reflects this: "The opinion wouldn’t write.") When people don’t write, their thinking can be far less competent. This is very dangerous to our society, because it bespeaks a much lower quality of thinking on the part of leaders.

The corollary that a society which does not write will not read is, I think, equally true and, if anything, even more dangerous. What can one say? A society where people do not read is doomed to progressively greater ignorance and mistakes, is it not? Although you might strongly disagree, it seems to me that non-reading and the ignorance it breeds are in no little measure responsible for some terrible messes we find ourselves in today. Harry Truman once said there is nothing new under the sun except the history you don’t know, and apparently he also said, or least thought, that not all readers can be leaders, but all leaders must be readers. To me Truman seems exactly right.

There is one final point. Even if we do now have a general culture of non-writing, the people who recently have found themselves in trouble -- Ogletree and Tribe -- and the ones who previously got in difficulty because of a charge of plagiarism -- Ambrose, Kearns-Goodwin, to some extent Dershowitz -- have made their lives in a specific sub-culture of writing. So they in particular should not have had books, for which they claimed credit, written in part or whole by others, and should not have plagiarized. You know, it is sad to say, but may be inevitable, that what has been coming to public notice will lead to questioning of the bona fides of what is done generally at the Harvard Law School, in other parts of Harvard University, and at other top ranked and lesser institutions. Suspicion may run deep for awhile, and God forbid that it should prove widely warranted. This society really should get back to people doing their own work. I seem to remember that Holmes did it. I believe Brandeis did it. You do it. Even turkeys like me do it. At rock bottom there is not much in the way of sustainable reason why most people shouldn’t do it, and there are lots of good reasons why they should.

And yet . . . . and yet . . . . one dreads the possibility that your pessimism may be all too well placed.

In any event, thanks again for your response. I would like to post it and this reply. Also, any further comments you wish to make would be avidly received and, if you have no objection, would be posted.

All the best.
Sincerely yours,
Larry Velvel <--

***The issue of incorrect attribution for "good" ideas is not new in law or anything else. Law & Order SVU had a plot line wherein a judge stole credit for law review articles (on intellectual property in the 21st century) from his law clerk, who was subsequently murdered. Earlier, Law & Order had a plot line wherein a Ph.D. advisor stole an idea within a grant proposal by his former grad student (the advisor's wife was (inadvertently) murdered in that episode). If viewers of a one hour tv show buy into the concept that idea stealing occurs in academic circles, then we shouldn't think the ghost writing phenomenon is in any way revolutionary.

What we ought to worry about a lot more is the presentation, and rooting, of FALSE ideas in the academic literature. The incident with Jan-Hendrik Schon of Lucent illustrated just how easy it is for completely fabricated, false work to enter into the scientific literature through prestigious journals such as Science and Nature. People who recognized the bad work for what it was were not given a voice until the house of cards had collapsed through identification of the multiply-published graphs. Similarly, law reviews publish completely false work and it is virtually impossible to remove it. If, perhaps, only other law professors read this stuff, it would not matter a whole lot, but, in fact, other people read and rely on law reviews to formulate policy, as in the case of the reliance of the FTC and the National Academy of Science on law reviews to create proposals for reform of the patent law system.

In the intellectual property area, a paper in the Harvard Law Review in 2003 asserted that the US Patent Office grants patents on 97% of submitted applications and thereby asserted there was madness at the PTO that needed to be stopped. The problem is that the 97% number is simply false, and the Harvard Law Review won't correct the mistake. A paper in the University of Chicago Law Review asserted that the inventors of the transistor (Bardeen, Brattain, Shockley) thought its only use was for hearing aids. The underlying reference (misidentified as to its page number) didn't even say that. But the University of Chicago Law Review wouldn't correct the mistake. As to the substantive truth of the assertion about hearing aids, the first graduate student of John Bardeen referred to the text in the law review as "a naive, ridiculous view." [see L.B. Ebert, Foreseeability and the Transistor, Intellectual Property Today, p. 41 (October 2004)]

Although the issues of improper attribution are a cause for concern, the publication, and rooting, of ideas which are demonstrably false poses a far greater threat to intellectual advancement, whether in scientific or legal disciplines.

**As a minor footnote

Related to another piece of problematic science, which was published in the journal Nature, Bob Park writes

Jacques Benveniste, 69, died last week after a heart operation. The French biologist claimed in 1988 that biological effects of a dissolved substance persist, even after the dilution limit is exceeded. A decade later he discovered that infinitely dilute solutions emit an electronic signature that can be captured by a coil, digitized, and transmitted over the internet to transfer homeopathic properties to flasks of water anywhere in the world. I challenged him to a simple international double-blind test in which he would be asked to identify which of several flasks had been activated. The challenge was carried in a Time magazine article by Leon Jaroff (Time, 17 May ‘99). I met with Benveniste that June. A pleasant man, he agreed to everything, but said he needed time to get ready (WN 14 May 99). Weeks became months. Years passed, trees fell, but to the end Jacques Benveniste needed more time. We all do.


The way Nature handled Benveniste's publication verged on the comical. Years later, Schon's work would be handled in a different way.


Noah Peters wrote on the Harvard business:


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