Monday, December 20, 2004

Dean Velvel update on Harvard plagiarism

from Dean Velvel's blog, on Dec. 15, 2004, about plagiarism at Harvard:

-->So our flagship university, like the rest of American society, which it purports to lead by example, appears to be condoning dishonesty instead of punishing it in clear, public and no uncertain terms. Bravo President Summers. Bravo Dean Kagan. Your failure to act accords with the dishonesty that is rampant in society today. And the actions of a flagship should accord with those of the society it leads, shouldn’t they?

While Harvard apparently does little or nothing about the disclosed dishonesty of Ogletree and Tribe, other stories have come out about other dubious goings on in Cambridge. Someone anonymously emailed this blogger a new Harvard Crimson article about more plagiarism on the Charles. A Harvard scientist apparently plagiarized -- more or less like mad, one gathers -- in preparing a grant application. (Who can blame him? -- money was at stake, after all.) That scientist, however, is no longer at Harvard. Of course, his case was different from those of Tribe and Ogletree: he was in science, they are in law. In science, truth is the desideratum. In law one is trained to prevaricate, obfuscate and becloud, although, to paraphrase Tom Lehrer on plagiarism, please always to call it zealous advocacy.<--

Curiously, the episode of "Law & Order" on Saturday, Dec. 18, 2004, had a plotline on improper credit. The dead person was a medical researcher, who was killed via a patch of fentanyl/DMSO applied shortly before jumping into a swimming pool. An initial suspect was her research assistant, with the alledged motive being the removal of the assistant's name from a grant application. The research assistant, as was the case in the earlier episode with the law clerk whose work was plagiarized by the murdered judge, was not guilty of murder. However, in the Dec. 18 episode, the research assistant played a key role in the rest of the plot. He aided the police in conducting a (fabricated) experiment involving (eye movement) responses from a woman in a semi-vegetative state.

The Law & Order episode offers an interesting analysis of incentives. The assistant was punished (in having his name removed from the grant application) for telling the truth about the experiments. The assistant was rewarded (in helping the police) by misrepresenting the experiments. Dean Velvel's analysis of the incentives in the Tribe matter is correct. The unpleasant aspects of the event will be allowed to fade away. For better or worse, the matter will be largely forgotten. The same is true of the various false footnotes of intellectual property articles in recent law reviews.

Academic plagiarism has been getting some play elsewhere. An article by THOMAS BARTLETT and SCOTT SMALLWOOD entitled --Four Academic Plagiarists You've Never Heard Of: How Many More Are Out There?-- in the Chronicle of Higher Education obliquely refers to the Tribe matter: -->But over the last quarter-century, Mr. Carney has taken phrases, sentences, and even entire paragraphs from numerous authors without crediting them. A close examination of several of his papers and book chapters reveals that the professor has plagiarized both frequently and brazenly. Compared with what Mr. Carney has done, the highly publicized missteps of scholars like Harvard's Laurence H. Tribe and Charles J. Ogletree Jr. seem almost trivial.<--

The authors also noted: -->In one of the rare surveys conducted about plagiarism, two University of Alabama economists this year asked 1,200 of their colleagues if they believed their work had ever been stolen. A startling 40 percent answered yes. While not a random sample, the responses still represent hundreds of cases of alleged plagiarism.

Very few of them will ever be dragged into the sunlight. That's because academe often discourages victims from seeking justice, and when they do, tends to ignore their complaints -- a kind of scholarly "don't ask, don't tell" policy. "It's like cockroaches," says Peter Charles Hoffer, a University of Georgia historian and author of a recent book about academic fraud. "For every one you see on the kitchen floor, there are a hundred behind the stove."<--

THOMAS BARTLETT and SCOTT SMALLWOOD also discuss mentor vs. protege issues. -->The aura of mutual admiration began to fade in July 2003. That's when Mr. Kirk discovered that Mr. Arntzen had copied large portions of his paper without his permission. About one-third of Mr. Arntzen's article -- which was published as a chapter in the 2004 book Vaccines: Preventing Disease and Protecting Health -- was taken directly from Mr. Kirk's paper, which was published two years before in the book Genetically Modified Foods. The graduate student's paper was not cited, but Mr. Arntzen did mention Mr. Kirk among the dozen people he thanked in the acknowledgements.

Mr. Arntzen does not deny copying Mr. Kirk's paper. He says that he "did some cutting and pasting," and that the practice is common in scientific circles. (In fact, most of the passages not taken from Mr. Kirk's paper come from an article that Mr. Arntzen wrote with another Arizona State researcher.)

The professor wrote his chapter over one weekend, he says, adding that borrowing passages is a way to "conserve energy." He felt justified in doing so, he says, because Mr. Kirk is a member of his research team and members often share materials with each other. Mr. Arntzen also argues that because his paper was not a peer-reviewed article, the standards for plagiarism are different.<--

One wonders how the absence of peer review influences whether or not something is deemed plagiarized. Most law review articles are not peer reviewed, so does that mean plagiarism does not occur when the author "borrows" text from another? Separately, although Lemley wrote of "rational ignorance" in the Northwestern University Law Review, don't we also have "rational ignorance" on the part of his readers who accept, without analysis, false footnotes, like the comments about Clarke in the Lemley/Moore paper in the 2004 Boston University Law Review? Are law reviews, as they have existed in the past 50 years, on the verge of extinction? Contemplate the following.

****from ***

An article by Richard R. Orsinger (1996) for three year prediction:

On-line electronic law journals will begin to proliferate. [The Appellate Practice & Advocacy Section has an electronic Section Report at] E-journals will specialize in narrow areas. "The next decade could witness the end of the law review as we know it." Hibbitts, Bernard J., Last Writes? Re-Assessing the Law Review in the Age of Cyberspace,

from Hibbitts (1997):

The next decade could witness the end of the law review as we know it. At first glance, this contention might seem implausible - after all, the law review is the supreme institution of the contemporary American legal academy. Virtually all accredited law schools have one; quite a few have several. Law schools depend upon law reviews for publicity and prestige. Law professors depend upon law reviews for publication and promotion. Law students depend upon law reviews for education and employment.

[i.2] The law review, however, is hardly an inevitable institution. It emerged in the late nineteenth and early twentieth centuries as the product of the fortuitous interaction of academic circumstances and improvements in publishing technology. Today, new academic circumstances (not least among which is an increased professorial dissatisfaction with law reviews themselves) and new computer-mediated communications technologies (e.g. on-line services and the Internet) are coming together in a way that may soon lead to the demise of the familiar law review in favor of a more promising system of scholarly communication.

Yale's Fred Rodell made it plain that he had had enough. In his Virginia Law Review article "Goodbye to Law Reviews"59 (which in later years would ultimately, and perhaps ironically, become the most-cited law review article on law reviews) he declared that there were two problems with legal writing in general, and law review writing in particular: "One is its style. The other is its content"
Speaking from the bench of the United States Supreme Court in 1911, former commercial law journal editor Oliver Wendell Holmes Jr. dismissed law reviews in general as "the work of boys".

Under increasing pressure to write, many professors moreover lacked the time or the inclination to read others' submissions or give quality advice.151 In this context, the editorial process was left "in the hands of young people with little experience in evaluating legal skills, few standards by which to do so, natural naivete, and scant regard for the institutional future."

It is no accident that James Lindgren, whose interests run from law and sociology to legal history, has lately written that "in other parts of the academy, legal journals are considered a joke. Scholars elsewhere frequently can't believe that, for almost all our major academic journals, we let students without advanced degrees select manuscripts."
Sixth, law reviews have come in for more criticism as more law review writers have ceased writing about professional, doctrinal and local issues. In part, this development is a result of the just-discussed interdisciplinary turn. It is also, however, a product of the recent fall-off in the number of practitioners and judges - as opposed to law professors - writing for (or allowed to publish in) law reviews
One reform has entailed the formal or informal adoption of editorial policies more explicitly deferential to faculty authors: in 1994, for instance, the articles editors of the University of Chicago Law Review publicly promised to show "substantial deference", by which they meant that they would respect the author's "voice" and would give the author final say on whether suggested changes would be made.

The case for the self-publishing of legal scholarship on the Web is clear and strong. Law professors working at terminals with an Internet connection to the Web need not worry any more about whether the subject of a piece is too esoteric, too doctrinal, too complicated or even too impolitic for law review editors; we are free to write and publish on the topics of our choice. This freedom might give us a useful antidote to the substantive (conservative or "trendy") sameness of the reviews as they now exist. On the Web, we need not endure months of frustrating or embarrassing delay while our papers are judged, peer-reviewed, edited or printed in formal journals; we can disseminate our work instantly, as soon as we are satisfied with it. Our work can appear when we want it to, as opposed to when someone else's printing and publication schedule allows it to appear. On the Web, we are under no compulsion to tolerate the indignities and inaccuracies of line-editing: we can present our own work in our own terms, in our own "voice", in our own words, in our own ways. On the Web, we need not cater to the technologically- conservative expectations of peer-reviewers or even of editors themselves; on the Web, we can "push the envelope", constructing our presentations in what we regard as the most technologically-effective manner. On the Web, we need not turn our backs on our own work once it is printed, without the benefit of revision, correction or change; we can conveniently and immediately improve our own articles days, months or even years after initial publication, without going through an editorial middleman. On the Web, we can even save money: if the practice of Web self-publishing becomes sufficiently generalized, our institutions will no longer have to spend hundreds of thousands of dollars paying for both the publication of our own (print or electronic) law reviews and our subscriptions to the law reviews of others.


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