www.FreeLegalResearch.com | www.FreeMPRE.com | www.FreeBarReview.com
Laurence Tribe and the problem of
by Joseph Bottum
The Weekly Standard
10/04/2004, Volume 010, Issue 04
SUPPOSE you were doing a little research into the history of Supreme Court nominations, and you learned from one book that Grover Cleveland "bested Benjamin Harrison by almost 100,000 votes in the election of 1888, but the vagaries of the electoral college caused him to lose the election" (p. 130).
And then, browsing through a later book on the topic, you read that Harrison is remembered for "losing the popular election in 1888 by 100,000 votes and still managing to take the Oval Office from incumbent President Grover Cleveland through the vagaries of the Electoral College" (p. 63).
Perhaps you'd think it merely a matter of curious--but not impossible--chance that both authors had used the same, memorable phrase: "vagaries of the Electoral College."
Suppose, however, more curiously, that further along in the newer book was the following description of the controversy surrounding Harry Truman's 1949 nomination of Sherman Minton to the High Court: "several Senators called on Minton to appear before the Judiciary Committee. Minton declined the 'invitation' and said that he would stand on his record as a Senator and a federal appellate judge" (p. 84).
Those ironic quotation marks around the word "invitation" might seem familiar. And, sure enough, there they are--and then some--in the earlier book, as well: "Republican Senators Homer Ferguson of Michigan and Forrest C. Donnell of Missouri requested that Judge Minton appear before the Senate Judiciary Committee to respond to questions. He declined the 'invitation,' noting that he would stand on his record as a Judge and Senator" (p. 231).
By now, of course, your radar would be fully active, and you'd be scouring both books for telltale, otherwise inexplicable parallels. Like the phrase "Holmes mold," which appears in the later book as: "The chairman of the Judiciary Committee, Senator George Norris, immediately made it clear to President Hoover that he and his fellow committee members, mostly Democrats and Progressive Republicans, would insist upon a liberal jurist in the Holmes mold" (p. 80).
In the earlier book, the same sentence can be found almost verbatim: "But almost at once the Chairman of the Senate's Judiciary Committee, George W. Norris, made it plain to the President that he and his fellow committeemen, largely Democrats and Progressive Republicans, would insist on a judicial liberal in the Holmes mold" (p. 191).
It would no longer seem just a coincidence that both books refer to Truman's "buddies" benefitting from a "crony appointment" (p. 224 in the older book and p. 68 in the newer)--followed by "Truman . . . liked them; he liked their politics" in one, and "Harry liked his friends, and he liked their politics" in the other (p. 224 and p. 69).
Or that the earlier book recounts how "Others were rather more specific" when they "urged Hoover to nominate Benjamin Nathan Cardozo, Chief Judge of the New York Court of Appeals"--since, after all, the later book recounts much the same thing, in much the same language: "Others were more specific" when they "urged Hoover to nominate Chief Judge Benjamin Cardozo of the New York Court of Appeals" in the newer (p. 191 and pp. 80-81).
And what if, finally, you were to discover an identical nineteen-word passage in both books: "Taft publicly pronounced Pitney to be a 'weak member' of the Court to whom he could 'not assign cases'"? (p. 164 and p. 83). The conclusion would then seem unavoidable: The later book is doing wholesale borrowing from the earlier.
Or, to make things rather more specific: In 1985, Harvard University's Laurence H. Tribe, the most famous and widely cited constitutional law professor in the United States, signed his name to a book called God Save This Honorable Court that now appears--how shall we say it?--perhaps "uncomfortably reliant" on a 1974 book called Justices and Presidents by the University of Virginia's Henry J. Abraham.
POOR HARVARD seems to be going through a spate of such incidents. A national news cycle was generated in 2002 when THE WEEKLY STANDARD broke the story that Doris Kearns Goodwin--a member of Harvard's Board of Overseers and a former professor of government at the school--had done some serious copying for her 1987 book, The Fitzgeralds and the Kennedys, and then bought off one of the authors from whom she lifted her material.
Next, in a more complicated case, Harvard law school's Alan Dershowitz was accused of overusing a single secondary source for his 2003 book, The Case for Israel.
Finally, just a few weeks ago, on September 3, Charles J. Ogletree, Harvard's Jesse Climenko Professor of Law, admitted on the university's website that the assistants who'd actually prepared his new All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education lifted six consecutive paragraphs from a 2001 book by Yale's Jack M. Balkin.
ODDLY ENOUGH, Laurence Tribe plays a role in two of these stories. (And peripherally touches the third, if one counts the thanks he offers Dershowitz, his "friend and colleague," in the preface to God Save This Honorable Court.)
When the Goodwin incident prompted Harvard's undergraduate newspaper, the Crimson, to call for her scalp--"Goodwin's plagiarism of sentences, nearly verbatim, from source materials is inexcusable. . . . [S]he should recognize that her action is unbecoming an Overseer and resign her post immediately"--Tribe wrote a letter in the next issue expressing "great sadness" at how "mindlessly" the students' editorial had attacked her.
Goodwin "had not the slightest intention to deceive, to claim originality for thoughts that were unoriginal, or to appropriate another's deathless prose in hopes that she might be credited with a literary gift that belongs in truth to someone else," Tribe insisted. Oh, he admitted, she had "erred in following her own paraphrased handwritten notes without checking back in every last one of the 300 or so books she cited." But Goodwin's work was "documented with something like 3,500 footnotes," which according to Tribe proved both her commitment to scholarship and her "personal integrity."
Then, this year, Tribe initially appeared willing to excuse Charles Ogletree's plagiarism altogether, telling the Boston Globe: "It clearly represents the fact that because he so often says yes to the many people all over the country who ask for his help on all kinds of things, he has extended himself even farther than someone with all that energy can safely do."
Challenged about this apparent absolution, however, he later offered a rather different analysis. In an email posted on a blog about legal topics run by Lawrence R. Velvel, dean of the Massachusetts School of Law, Tribe wrote, "What I told the Boston Globe about the way in which [Ogletree] has overextended himself was not intended to be a complete explanation or justification." And there is more to say, he allowed: "The larger problem"--the "problem of writers, political office-seekers, judges and other high government officials passing off the work of others as their own"--is "a phenomenon of some significance" and worth exploring.
THAT SEEMED a little rich for one reader of THE WEEKLY STANDARD, a law professor who suggested we take a look at Tribe's own God Save This Honorable Court if we wanted to explore the "problem of writers . . . passing off the work of others as their own."
And so we did, and the result is . . . well, what? It's awkward to name what Laurence Tribe has done in God Save This Honorable Court. In his letter to the Crimson about Doris Kearns Goodwin, Tribe proudly called himself a "scholar who values his own integrity and reputation for meticulous attribution as much as anyone could."
But even Goodwin's discredited book, by Tribe's own account, contained "something like 3,500 footnotes" citing "300 or so" other works; God Save This Honorable Court, by unflattering contrast, contains no footnotes at all--nor any other sort of "meticulous attribution." Instead, at the end of God Save This Honorable Court, we find a two-page "Mini-Guide to the Background Literature," which lists Henry Abraham's Justices and Presidents as merely the twelfth of fifteen books (including two of Tribe's own previous works) that "an interested reader might wish to consult."
And against even this tiny hint of Tribe's use--the only appearance of Abraham in the book--one must set Tribe's preface, which explains the lack of footnotes by claiming: "much of what this book contains represents the culmination of more years of research and reflection about the Supreme Court and its role than I care to confess. Thus I cannot hope to trace here all the roots of the ideas that appear in these chapters--or to allocate credit or blame among the many who share indirect responsibility for the thoughts I have expressed."
GOD SAVE THIS HONORABLE COURT appeared in 1985 from Random House, selling well and receiving generally laudatory notices--and when the Wall Street Journal ran a less-praising review, Tribe took issue in a letter to the editor. A reviewer in the Los Angeles Times, Dennis J. Mahoney (author of this year's Politics and Progress, an interesting history of the academic discipline of political science in America), seemed to hint at the reliance on Abraham's book, "from which Tribe apparently borrowed most of his examples," but at the time, no one took particular notice.
No one, that is, but Henry J. Abraham himself. Abraham's Justices and Presidents: A Political History of Appointments to the Supreme Court first appeared from Oxford University Press in 1974. A second edition followed in 1985, a third in 1992, and Rowman & Littlefield brought out a fourth edition in 1999, retitled Justices, Presidents, and Senators.
(In his "Mini-Guide," Tribe refers to Abraham's second edition, published in 1985, the same year as Tribe's book. Did Tribe have the second edition while he was actually writing God Save This Honorable Court? His preface is dated January 1985, which makes it at least questionable. Thus, all references here are to Abraham's 1974 first edition instead. For those with later editions, Abraham's discussions appear roughly ten pages later in the second edition and about forty pages earlier in the oversized paperback of Rowman & Littlefield's "new and revised" edition.)
CALLING HENRY ABRAHAM a venerable historian of the courts hardly does justice to his stature. Now retired as an emeritus professor of government at the University of Virginia, the eighty-three-year-old scholar is the author of such standard works as 1962's The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France, 1965's The Judiciary: The Supreme Court in the Governmental Process, and 1967's Freedom and the Court: Civil Rights and Liberties in the United States.
Gary McDowell--a professor of political science at the University of Richmond who was Abraham's research assistant from 1977 to 1979--is thanked along for his help with Justices and Presidents in the 1985 edition. But when I asked him about the phenomenon of professors like Charles Ogletree pushing their assistants to write their manuscripts, he pointed to the hundreds of endnotes in Justices and Presidents and said that research assistants "never wrote passages" for the author: "One of the things that distinguishes Henry Abraham is that he's always done his own work."
Colgate's Stanley Brubaker, another former assistant thanked in the preface, laughs and says, "There's not a word in that book that didn't come from Henry's pen."
Abraham himself understands the lure. "The temptation of busy people, big deals, to turn the material over to assistants is very strong," he told me when we spoke last week. But the "annoying" practice must be stopped, he said--partly because the assistants lack the judgment that the professor is supposed to have, but mostly because it's wrong: unscholarly and unprofessional.
Discussing the dependence of God Save This Honorable Court on Justices and Presidents, Abraham is less than forgiving. "I was aware of what Tribe was doing when I first read his book," he said. "But I chose not to do anything at the time. I've never confronted him--and I was wrong in not following it up. I should have done something about it." Tribe's work probably derived from "a combination of being lazy and making a little money. I'm sure his book sold better than mine," Abraham added. But "he's a big mahatma and thinks he can get away with this sort of thing."
INDEED, the now over sixty-year-old Tribe is the big mahatma of American law as well as the great legal champion of the Democratic party. He's argued thirty-six cases before the Supreme Court, an astonishing number, and they include such landmark cases as the 2000 Bush v. Gore. He just represented the losing side before the Florida Supreme Court in John Kerry's effort to keep Ralph Nader off the ballot. He's produced the bestselling textbook American Constitutional Law, now in its third edition. He's written such books as the 1985 Constitutional Choices and the 1991 Abortion: The Clash of Absolutes. In addition to holding his chair at the law school, Tribe was recently named one of Harvard's rare "University Professors," replacing Archibald Cox, who died this spring.
From providing the talking points with which Senator Edward Kennedy went after William Rehnquist when he was nominated to be chief justice in 1986 to being named counsel for the team on call should John Kerry need lawyers to represent him during a recount this year, Tribe has clearly been a dominant figure for some while.
He was the big mahatma back in 1985, for that matter. The preface to God Save This Honorable Court thanks the powerful Democratic campaign specialist Bob Shrum, "my good friend," for suggesting that the book be written, and praises the assistance given by future Democratic party legal talents such as Ronald Klain. (Interestingly, Klain, who would go on to work in the White House as Vice President Gore's chief of staff, was then only a first-year student at Harvard law.)
SO WHY WOULD Tribe bother producing such a book--and introduce his young assistants to this kind of academic practice?
Part of the answer was the public purpose the book served. Thoughtful observers in the early 1980s could see what Tribe labeled the "greying of the Court," as the sitting members grew old together and potential replacements could be caught in battles between Republican presidents and Democratic senators.
In 2001 testimony before the Senate Judiciary Committee, Tribe himself described the 1985 God Save This Honorable Court as "defending an active role for the Senate in the appointment of Supreme Court Justices" and setting in place the argument that burst into public view two years later: "it wasn't until the 1987 resignation of Lewis Powell and the confirmation battle later that year over Robert Bork that the concrete stakes in this otherwise abstract controversy came to life for the great majority of the American public."
This judgment about the book seems nearly universal. "Tribe's arguments provided the intellectual blueprint for the anti-Bork forces," the New York Times explained in 1987. "And, as the hearings approached, he played the role of the nominee in mock question-and-answer sessions held in the living room of Senator Joseph R. Biden Jr., Democrat of Delaware, chairman of the Senate Judiciary Committee."
"Klain spent most of his time with Tribe working on Tribe's book God Save This Honorable Court," the Legal Times added in 1993. "The book, which was published in 1985, became a kind of intellectual road map for Democrats as they worked to defeat Robert Bork's Supreme Court nomination two years later. Many of Klain's friends and former colleagues say that he wrote large sections of the book, a claim that Tribe disputes."
BUT THERE SEEMS more to the production of Tribe's book than its public purpose. We enter here into what the novelist (and sometime WEEKLY STANDARD contributor) Thomas Mallon calls the "peculiar psychology" of famous people who want also to be authors.
Mallon has written, in addition to his novels, the 1989 Stolen Words: Forays into the Origins and Ravages of Plagiarism, declared "the definitive book on the subject" by the New York Times. And so I telephoned him to ask what he thought of the kind of systematic paraphrasing that God Save This Honorable Court uses.
But he seemed interestingly unwilling to subsume the practice entirely under the genus of plagiarism. Of Tribe's particular case, Mallon rightly said he didn't know the details. But even of the general form, he thought a distinction might need to be made in some cases. Still, Mallon concluded, "authors do not have a license to paraphrase forever." And pushed to decide, he offered this formulation as a good rule: "Constant paraphrasing without at least semi-regular attribution constitutes a form of plagiarism."
THE MODERN LANGUAGE ASSOCIATION'S Guidelines for Documentation proves a little sterner, condemning the practice as "plagiaphrasing" and likening it to the dishonesty of plagiarism: "Plagiarism (the unacknowledged borrowing of words or ideas) is a serious violation of academic honesty. So is 'plagiaphrasing': rewording a quote without putting the idea in your 'voice.'"
Mallon's gentler definition might conceivably let off Doris Kearns Goodwin. But not Tribe, whose noteless text provides nothing resembling "semi-regular attribution." So perhaps the MLA's ugly coinage "plagiaphrase" is the best term to describe what Tribe and his assistants did with God Save This Honorable Court.
The historical sections of the book typically consist of a long passage from Abraham crunched down by rephrasing and the elimination of detail--as one might expect when Abraham's 298 pages of material are made to provide the facts around which Tribe builds his own thesis in 143 pages of text. The repetition of "Taft publicly pronounced Pitney to be a 'weak member' of the Court to whom he could 'not assign cases'" (Tribe, p. 83; Abraham, p. 164) is straightforward copying. But more often, the reader will find the kind of plagiaphrasing that the MLA condemns.
SO, FOR EXAMPLE, on page 64, Tribe writes: "Although he rose to the Presidency in 1908 as Teddy Roosevelt's handpicked protégé, Taft was far more conservative and much less decisive than his political mentor."
Abraham rendered it as: "Although he was elected to and embarked upon the Presidency as Roosevelt's handpicked protégé, William Howard Taft's conception of the office differed dramatically from his predecessor's in style as well as substance"--and then, after two hundred words of detail, adds: "Taft was far more conservative than T.R., cautious and at home with the G.O.P.'s conservative leadership" (pp. 154-155).
The repetition of "handpicked protégé" and "far more conservative" make the source clear. Tribe has simply eliminated the intervening detail and lightly rephrased (improving it, in fact, by correcting Abraham's dangling modifier).
In the next paragraph, Tribe continues: "Taft made a record six Supreme Court appointments in his single term in office. He put five new men on the Court and elevated Justice White to the position of Chief Justice. Although he was not as dogmatic in his conservatism as the late nineteenth-century Presidents, Taft was determined to avoid nominees of the liberal stamp of Learned Hand, Louis Brandeis, or Benjamin Cardozo. Taft regarded these potential candidates as nothing less than 'destroyers of the Constitution'" (p. 65).
Abraham continues in his own next paragraph, "In his single term Taft appointed six Justices to the Court, including one Chief Justice--at the time more than any President since George Washington." And then, after perhaps seventy-five words of further detail, he concludes that Taft "wanted no 'liberals' of the stamp of Learned Hand, Louis Brandeis, or Benjamin Cardozo, potential candidates whom he regarded as 'destroyers of the Constitution'" (p. 155).
THE RELIANCE rolls and rolls along. Abraham has it that Caleb Cushing was "unquestionably highly qualified and possessed of a superb mind" (p. 121). Tribe inverts the clauses to say that Cushing was "possessed of a fine mind and undoubtedly highly qualified" (p. 88).
Abraham writes, "Hoover continued to demur. . . . Now, however, the powerful Chairman of the Senate Foreign Relations Committee, Republican William E. Borah of Idaho, whose support Hoover needed on other fronts, got into the act" (pp. 191-192). Tribe renders it: "When Hoover demurred, the Chairman of the Foreign Relations Committee, Senator William Borah--whose support Hoover needed on other matters--paid a visit to the White House" (p. 81).
ONE OF THE BEST PLACES to spot this kind of systematic cribbing is in quotations. A perfect match in ellipses and stripping almost always means the author hasn't gone to look at the original source but is merely copying.
Thus, Tribe tells us that "One periodical characterized [Tom] Clark as a 'second-rate political hack who has known what backs to slap and when,' and sarcastically concluded that it was appropriate that 'the least able of Attorneys General of the United States should, as a result of raw political favoritism, become the least able of the members of the Supreme Court'" (p. 83).
Abraham identified the author and magazine--Harold Ickes in the New Republic--and says the article contended that "Truman was under no obligation whatsoever to this 'second-rate political hack who has known what backs to slap and when'; concluding that 'perhaps it was in keeping that the least able of Attorneys General of the United States should, as a result of raw political favoritism, become the least able of the members of the Supreme Court'" (p. 229).
Similarly, the repetition of mistakes in quotations is good proof of reliance. Abraham notes, "In Mr. Justice Cardozo's words: 'Marshall gave to the constitution of the United States the impress of his own mind'" (p. 75), while Tribe says, "As Justice Benjamin Cardozo wrote more than a century later, 'Marshall gave to the Constitution of the United States the impress of his own mind'" (p. 56).
But Abraham had it slightly wrong. In his 1921 Nature of the Judicial Process, Cardozo wrote, "He gave to the constitution the impress of his own mind." And once Abraham has mistakenly replaced the pronoun, Tribe followed along.
OCCASIONALLY, Tribe's plagiaphrasing leads him into difficulties. On page 83 in God Save This Honorable Court, he writes, "President Chester Arthur pioneered the merit system in national government appointments and authored the Civil Service Reform Act of 1883. But he had a relapse in 1882 and nominated his mentor and former boss, arch political spoilsman Roscoe Conkling, to the Court."
On pages 128 and 129 of Justices and Presidents, Abraham notes, "In 1881 on Garfield's death, Chester A. Arthur of New York came to the Presidency with almost everyone predicting doom and failure: his selection as Vice President had been steeped in political hacksmanship and spoilsmanship, nurtured by the nether Roscoe Conkling wing of New York's Republican party."
Abraham adds a long sentence of examples of Arthur's participation in corrupt politics, then continues, "Yet in what was one of the most dramatic character reversals in the country's history, President Arthur not only turned his back on his spoilsmen-cronies but authored the great Pendleton Civil Service Reform Act of 1883." After nearly a page of discussion about Arthur's good behavior as president, Justices and Presidents concludes, "But to the consternation of most observers, Arthur had a 'relapse' [in 1882] and offered the spot to his one-time political mentor and boss, Senator Roscoe Conkling."
Without Abraham's examples of bad behavior before and good behavior after, Tribe's noun "relapse" doesn't make much sense--unless you realize that it's actually Abraham's word and Tribe merely forgot to change it.
MEANWHILE, Abraham claims that under Cleveland and Harrison the Supreme Court became "a veritable bastion of economic laissez-faire" (p. 133), and Tribe has the Court become "the last bastion of laissez-faire capitalism" (p. 64).
Abraham explains that Harrison "was content to let the Republican party hierarchy dominate the affairs of state during his four years in office" as "an economic conservative" (p. 137), while Tribe thinks Harrison was "devoted to large business interests and willing to allow the party hierarchy to run his administration" (p. 63).
Abraham: "Before he was finally confirmed six weeks later by a vote of 46-9, Bradley came under heavy fire from Eastern 'hard money' interests who quite correctly regarded him as dedicated to a 'soft money' economic philosophy" (p. 119). Tribe: "Grant nominee Joseph Bradley's dedication to 'soft money' or greenbacks came under fire from Eastern 'hard currency' business interests before Bradley was confirmed in 1870" (p. 89).
Abraham: "Andrew Jackson's Democratic supporters in the Senate were not about to award the Supreme Court plum to a Clay Whig, and by a vote of 23:17 'postponed' the nomination in February 129, thus consigning it to oblivion" (p. 85). Tribe: "Crittenden's nomination, despite his alumnus status, was postponed--and thereby consigned to oblivion--in February of 1829, a few weeks before Andrew Jackson's inauguration" (p. 86).
Abraham: Cleveland was an "economic conservative of such intensity that Wilson had cause, if only half jokingly, to regard himself as the first President of the Democratic party since 1860" (p. 130). Tribe: Cleveland "was such a dogmatic economic conservative that President Wilson regarded himself as the first real Democrat to occupy the White House since 1860" (p. 63).
THE EXAMPLES go on and on, too numerous to count. Laurence Tribe is in some ways a better writer than Henry J. Abraham. God Save This Honorable Court snaps along as popular prose in a way that Justices and Presidents doesn't--which is why the mainstream Random House published Tribe and the scholarly arm of Oxford University Press published Abraham. But how exactly does that give the popularizing Tribe and his assistants the right to plunder a scholar like Abraham?
In fact, it's worse than the typical example of a popularizing author's reliance on other people's scholarship, for Laurence Tribe is supposed to be a scholar himself. A phone call to Tribe's Harvard office has not yet been returned. But his credentials are well known. He's the Tyler Professor of Constitutional Law and a University Professor at Harvard. If these aren't scholars' posts, what are? He's written over a hundred books and articles, according to a blurb on the Harvard website, and "helped draft the Constitutions for South Africa, Russia, the Czech Republic, and the Marshall Islands." His American Constitutional Law is "the legal text most frequently cited in the second half of the 20th century," Harvard declares--and quotes the Northwestern Law Review, which gushed: "Never before in American history has an individual simultaneously achieved Tribe's preeminence both as a practitioner and as a scholar of constitutional law."
IN OTHER WORDS, he didn't have to do this. He is a self-described "scholar who values his own integrity and reputation for meticulous attribution as much as anyone could." But the historians Stephen Ambrose and Doris Kearns Goodwin did much the same thing and were pilloried mercilessly.
So what shall we say of Laurence H. Tribe when he does it--without the footnotes that he so condescendingly told the Harvard undergraduates exonerated Goodwin? If she deserves excuse because she "had not the slightest intention to deceive, to claim originality for thoughts that were unoriginal, or to appropriate another's deathless prose in hopes that she might be credited with a literary gift that belongs in truth to someone else," what excuse is deserved by Professor Tribe?
Perhaps the explanation for the whole thing is simply vanity, Tom Mallon's "peculiar psychology" by which the famous need constant reaffirmation of their fame. Or perhaps it's merely what Henry J. Abraham supposes: "He's a big mahatma and thinks he can get away with this sort of thing."
Joseph Bottum is Books & Arts editor of The Weekly Standard.