Wednesday, September 22, 2004

Accuracy in publication--time for law reviews to wise up?

An editorial in the Trenton Times (22 Sep 04, p. A18) states:

-->If there was a time for the responsible news media to exert every effort to get it right, it's now... The democratic process can work only if the public is well informed and has faith in the information it gets, which is why it's essential that the traditional newspapers and networks retain -- or in some cases, recover -- their reputation for accuracy...

Beginning journalism students are taught to verify information before presenting it as fact...

As doubt about the documents spread, Mr. Rather and CBS hunkered down and defended their report. "CBS stands by, and I stand by, the thoroughness and accuracy of this report, period," Mr. Rather said defiantly.<--

In a far less publicized arena than the National Guard memos presented by Dan Rather and Mary Mapes, I had pointed out factual errors in an article published in the University of Chicago Law Review (71 U. Chi. L. Rev. 129). Even though a particular footnote (number 29) cited to an an article which did not support the contention advanced (and separately did not refer to the correct page of the source article), I received the following Rather-esque response: “The Law Review checks and proofs its articles very thoroughly before publication in order to ensure that no substantive errors are published. It is our policy not to issue corrections for stylistic or substantive disagreements.” Wholly apart from the problems with the page number and the non-support, the Law Review article itself presented a contention which was substantively wrong. The particular contention was that the inventors of the transistor anticipated uses only for hearing aids, and thus did not foresee the scope of utility of their invention. In the October 2004 issue of Intellectual Property Today, I present comments of John Bardeen's first graduate student on the accuracy of the allegations in footnote 29 in 71 U. Chi. L. Rev. 129.

Although many academic commentators have been quick to criticize failings at the Patent Office, they are glacial in responding to errors that they make. The non-discussion of these errors allows the errors to become imbedded as virtual folklore and thereby serve as an impediment to valid academic debate. An article in the Harvard Law Review in 2003 asserted that the patent grant rate at the USPTO was 97% ! [116 Harvard Law Review 2164 (2003), as discussed in Lawrence B. Ebert, Good Night, Gracie?, Intellectual Property Today, pp. 26-27 (August 2003)] A different example of this problem is a misstatement in the Boston University Law Review about the work of Robert Clarke in evaluating the patent grant rate issue (Mark A. Lemley and Kimberley L. Moore, Ending Abuse of Patent Continuations, 84 B. U. L. Rev. 63 (2004) at footnote 22); the mistake of Lemley and Moore is discussed in

If articles in law reviews are to serve as a resource of information, it is time that editors carefully review the accuracy of submissions in the first place and that the law reviews promptly correct errors in the second place.


In the financial area, AP reports that the Securities and Exchange Commission (SEC) is investigating the Chicago-based firm Morningstar for failing to properly correct inaccurate data it published about the mutual fund Rock Canyon Top Flight. At issue is the timeliness of correction of data between March 12 and March 23, 2004. Now, if only the SEC had jurisdiction over law reviews...


on the plagiarism issue with Lawrence Tribe of the Harvard Law School

-->There are indications that Tribe's book may, in fact, have been written largely by others, especially Ronald Klain, who went on to become Vice-President Al Gore's chief of staff, but at the time was only a first year law student. I don't know, of course, what caused Tribe's apparent plagiarism. But my guess is that two forces were at work.

The first is the fact that a famous scholar can ultimately turn into a brand. Larry Tribe's Harvard biography says that he has published more than 100 books and articles. Realistically, this is more work (along with everything else the prolific Prof. Tribe does) than one man can possibly accomplish. Inevitably, he must have come to depend on law students and other assistants for much of the research and writing that has gone into has books.

The second element, I suspect, is that Tribe regarded God Save This Honorable Court as politics, not scholarship--much as Dan Rather knew that his National Guard story was politics, not journalism. I don't believe that Larry would deliberately commit plagiarism. But I do believe that when a book is written not as a serious work of scholarship, but as a popularized tract intended to influence a political debate, it is not surprising that the author's editorial standards may slip. The overriding criterion by which a book like Honorable Court is judged is neither truth nor originality, but political impact. Once a scholar starts down that path, plagiarism is, perhaps, the least of the pitfalls to which he is subject.

As of the time Bottum's article went to press, Professor Tribe had not responded to his request for a response [note: a response was made later]. It may be that Larry will be able to muster a defense. Based on the quotations Bottum reproduces, however, it is hard to see how that is possible.<--

[LBE comment: of the first point (on excessive productivity), similar observations were made about the publication output of Jan-Hendrik Schon, but were not heeded. For example, none of the reviewers of Schon's papers noticed that certain graphs were reproduced and relabeled; that was only discovered later by a tip from the inside. of the second point (on politics; not scholarship), much of the discussion about the alleged excessively high patent grant rate (in the Harvard Law Review, the Boston University Law Review, and Federal Circuit Bar Journal) seems to arise from the politics of patent reform rather than from scholarly effort to analyze the grant rate issue. Separately, the thrice-repeated footnote (including within the University of Chicago Law Review and the Stanford Law Review) about the lack of understanding of the inventors of the transistor arises from the publication, in popular magazines, of a verbally-transmitted misconception. A false idea that couldn't directly make it into primary literature is bootstrapped into law review literature via footnotes.


from "The Record" at Harvard Law

-->Dean Velvel's weblog has become a focal point of sorts over the recent plagiarism scandals. Tribe is not the only distinguished legal scholar who has corresponded with Velvel. HLS Professor Alan Dershowitz became the subject of Dean Velvel's scrutiny over comments made to the media. Seizing upon Dershowitz's public mention of "cultural differences" between the legal profession (where judges routinely take the work of lawyers and clerks in writing their opinions) and the rest of academia, Dean Velvel expressed disbelief that Dershowitz would make such a distinction the basis for an excuse.

Dershowitz responded to Velvel, acknowledging that he stood by his comment of cultural differences but explaining that it was meant to serve as an observation on how accidental plagiarism may occur, not a defense of such actions. "There is never under any circumstances any justification for plagiarism and nothing I said was intended to serve as a justification," wrote Dershowitz. Dershowitz also suggested the establishment of a committee to set out clear guidelines for the use of research assistants by law professors.

Judge Richard Posner also weighed in on the matter, expressing dismay to Velvel about the status of legal writing. "The problem is that we no longer have a culture of writing. Writing is now a specialty," wrote Posner. "I am one of the dinosaurs who still does my own opinion writing," wrote Posner. "But let's face it: we're on the road to extinction." <--


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