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The Preternaturally Prolific Posner on Plagiarism

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February 5, 2007

Re: The Preternaturally Prolific Posner on Plagiarism.

From: Dean Lawrence R. Velvel

Richard Posner has written another book. The total mounts. In the arithmetic of his output, his newest book must be some number in the mid or high 30s of the books he has authored. One would be tempted to quip that he is on the book a year plan, except that sometimes he seems to write more than a book a year. Most of his books, remarkably enough, have been written while he has had a full-time day job as a federal judge. Even discounting the fact that he is plainly some sort of genius with an unparalleled work ethic, this massive output of books (plus hundreds upon hundreds of articles) speaks badly about other federal judges, who complain about their workloads and can barely keep up with them -- or can't keep up with them. It also speaks badly about law professors, whose day job, unlike Posner's, supposedly includes writing books and articles.

Posner gets, and deserves, a world of plaudits for his output -- for his productivity, his breadth of interests and knowledge, his writing style, his views. Occasionally, he also gets criticisms, even bitter criticism, perhaps stemming in part from what appears to be a reflexive conservatism and defense of the status quo, coupled with a habit of issuing ipse dixits, pronounciamentos, ex cathedra statements, call them what you will, that more liberal persons think totally without basis or significantly in error. (He is not, on the other hand, immune to certain liberal sympathies, even if this is paradoxical.)

His latest book is entitled The Little Book of Plagiarism. Unlike most of his books, which are long, hefty, this one is a little book. The cover is only about 6 ½ inches by about 4 ¾ inches -- that is small. I can't remember reading or perusing a book so small since Harry Frankfurt's On Bullshit, which lived up to its name. A full page of Posner's new book has only 22 lines, each line is just a shade over three inches wide -- small, small -- and there are only 109 pages. The book is a quick read, it should be needless to say.

I have read a couple of Posner's previous books very thoroughly, and created relatively long outlines of questions about them, in preparation for taping one hour televisions interviews with him about the books. Yet, to me, his newest book is the best one I've read. It is very well written, covers a lot of ground notwithstanding its brevity, puts forth a lot of ideas one thinks sound, and has flashes of witty humor. Perhaps, of course, my interest is the greater because the subject encompasses some matters explored here extensively in 2004 and 2005, and Posner appears to agree with a few of the ideas expounded here, e.g., that plagiarism is a species of fraud, and that one author accused of plagiarism may have had portions of the works he signed written by others -- who did the plagiarizing.

Posner's book, it may be said, is in certain respects a lawyer's book. Not just in the sense that it was written by a lawyer, although in that sense too, of course. But also in the sense that it deals with topics that are typical staples of legal thinking: he discusses definitions; extensions of logic to a variety of fields, including music, painting, poetry and plays; similarities and differences between copyright infringement and plagiarism; plagiarism in titles; why given examples of plagiarism should or should not be punished heavily or meet with opprobrium. Many of the topics he deals with are way out of my depth, e.g., the question of and issues surrounding Rubens signing paintings done by his students (Rembrandt did this too, one gathers), or Shakespeare using prior work as the basis for some of his plays. But a few of the things he talks about, one does feel qualified to comment on, and sometimes one finds himself in sharp disagreement.

Oddly, some of the things Posner defends, at least in part, but that one disagrees with, are things that he is not guilty of. Others are guilty of them, while he does the very thing that all ought to do. Yet he defends the others. One could consider this a paradox, or strange, or acclimatization to what is in this life, or defense of an unfortunate status quo. Often I really don't know which of these it may be.

Let us, then, consider a few of the points that Posner makes, starting with the question of originality in law. In discussing plagiarism in law, Posner says ". . . as we'll see, originality is not highly prized in law" (p.15), and that publishing the work of another under one's own name is "consistent with the low regard in which the legal profession holds originality" (p. 33). In this vein he says that judges' clerks generally write judicial opinions, with the judges merely editing them, sometimes greatly, sometimes not so much, and then signing them with no attribution (pp. 20-21). He says that "verbatim passages from lawyers' briefs" appear in the opinions, without attribution (p. 21). He says that many judicial orders and findings of fact are cribbed from the lawyers in a case, without attribution (p. 21), that little value is ascribed to judicial originality -- sometimes it is actually disapproved, on the grounds that it tends to destabilize law, and that the Solicitor General signs briefs he hasn't written (p. 26) (as do partners in law firms).

To Posner, none of this creates a problem, for reasons I will shortly dispute. But first, let us take up the fact that he immediately goes on to say that law professors too "are less than scrupulous about acknowledging the provenance of their ideas, because originality is not much prized by law professors either" (pp. 22-23). True, this "is changing because law professors increasingly identify with other academics,"
but "many law professors continue, particularly in the legal treatises and textbooks they write, to publish without acknowledgement material drafted by their student research assistants" (p. 23).

What Posner quite obviously is saying by his discussion of law professors is that the legal academy has generally placed a low value on originality. Well, that's news to me. It certainly is not the way I was trained or what I was taught to think or to honor. Let me tell you a couple of illustrative stories in this regard, stories that made an indelible impression on me and that remain fixed in my mind 45 years after the fact.

When I was trying out for the Michigan Law Review in my second year of law school, the candidates each had to write a so-called "case note," which is a relatively short essay on a particular recent judicial decision. We were vigorously admonished that we had to say something original in our case notes. The case I was given was of a genre that had existed for literally hundreds of years: a father or mother had given the farmhouse to one of the children on condition that the parent be permitted to live there for the rest of his/her life, but this arrangement had subsequently broken down. This being an all too common problem for centuries, I was at a loss for something original to say, but nonetheless wrote my consequently inadequate case note. The editor who was reviewing my work didn't like it, because it lacked originality. The editor could offer no suggestions on how to make it original, but was dissatisfied and simply reiterated that I should say something original. Though unable to offer suggestions, the editor was nonetheless a person of unusual abilities and characteristics, whose high competency is shown by the fact that the individual has been a highly reputed federal appellate judge for dozens of years. Personally, of course, my chance to do well on the Law Review took a big hit because of failure of originality where there could be no originality. Originality was the desideratum.

Here is another, similar story from the same time period. I was walking past a table in the Michigan Law Library when a fellow seated there, who in our first year had finished second in our class out of almost 400 people, asked me whether I might have any ideas he could use. He explained that he had been assigned a case note, but could think of nothing original to say on the matter. He briefly explained the matter to me, and I too had no original ideas to offer. So, again, a writer was stumped because of a demand for originality where none could be offered.

Now, here is my by-this-time rather obvious point. As far back as the beginning of law school, over 45 years ago, we were admonished in the legal academy to be original in our academic writing. This was a sine qua non (and I can't believe it was different at Harvard Law School, where Posner excelled). Nor did this value placed on originality in academic work such as articles and books ever change, in my experience, during the many subsequent years I spent partly or wholly in academia -- a total of 30 years out of 44 since graduating from law school. So I cannot agree with Posner that originality is held in low regard in the legal academy.

True, as Posner says, and as I shall return to later, there have been some professors who have plagiarized or, even worse in my judgment, put their names as sole authors to books written partly or wholly by others. But these persons seem to be outliers. When the matter arose in public in 2004 and 2005, the fact that they are outliers became obvious because of vigorous denials by others that they ever did or knew of the same thing. And, unless Posner has evidence to support that "many law professors" (p. 23, emphasis added) put their name as sole author to books or other academic work written in part by assistants, the claim probably should be regarded as an ipse dixit, as an ex cathedra pronounciamento unsupported by evidence.

True even if he lacks evidence, it remains possible that Posner nevertheless could be right (despite the denials of 2004-2005), which would mark a very sad state of affairs in the legal academy. And he does say that "solid rumor has it that [this] sort of thing . . . is not uncommon in academic law or limited to the writing of legal treatises." (P. 33.) But "solid rumor" is not evidence as we think of evidence.

Let me now turn back to Posner's point that could laughingly be described, in effect, as everybody's doing it, or almost everybody - - i.e., that judges put their names as sole authors to opinions heavily written by clerks, that opinions, orders and judicial statements of facts simply copy lawyers submission. Perhaps the first thing to remark is that Posner doesn't do this. Though he has clerks and research assistants, as any judge does or professor may (he remains a part time professor at the University of Chicago Law School), Posner nonetheless writes all his own stuff, as a person should. I know this for two reasons. He has told me so in an email. And he says in his book that "Most non-lawyers probably think judges write their own opinions. [But] Only a small minority of us do nowadays. . . . " (P. 20), thereby identifying himself as one of that small minority. Truth be told, one also knows it for a third, initially counterintuitive reason: Nobody who didn't write their own stuff could get as much written as Posner. You have to love to write to turn out as much as he does; you have to love it to an extent that is deeply unusual, even freakish one might say. Nobody who doesn't love to write in truly unusual degree, and who therefore relies on assistants to write stuff for him, could turn out as much as Posner, maybe not even 20 percent as much.

So what we have here is a person who writes to a nonpareil extent, and writes all his own opinions, defending judges who, instead of writing their own opinions, have others write their opinions for them. Such defense could be considered passing strange in the circumstances, since one would expect a defense to come from those who need it, not one who doesn't. Of course, the judges who have others write their opinions don't trumpet this fact, not even to defend it. They keep it as private as possible, presumably because they know it would meet disfavor if it became widely known. The only judge who seems to talk about it, and defends it, is one who doesn't do it. Strange, strange. Why he defends it is one of those points that are not entirely clear to me; is it because he really thinks it defensible? Is it a conservative's reflexive defense of the status quo? Is it an accommodation to the status quo? Damned if I know.

In any event, what are the reasons Posner gives in defense of the phenomenon, the reasons why he thinks it should not be castigated as plagiarizing the work of clerks (and occasionally of lawyers)? To understand his defense, one has to grasp his fundamental view of what constitutes plagiarism (at least as I understand his fundamental view).

For there to be plagiarism, he says, a person must conceal what he/she has done, must thereby mislead the reader, and must cause the reader to do something he would not have done had he known there was plagiarism. (Posner calls this last factor "reliance," or by the lawyers' phrase "detrimental reliance," and says it shows that the reader cares about the existence of plagiarism). Thus, if everyone knows that a writer copied someone's else's work, as with obvious parody, there is no concealment, no misleading (i.e., no fraud), and, for these reasons, no plagiarism. Or, if a reader would have bought a book anyway, even had he known that parts of it were copied from others without attribution, then the unacknowledged copying is not something about which the reader cared sufficiently to change his behavior, there is no change in the reader's behavior, and ipso facto there is no plagiarism (see pp. 17-22, 106, see also pp 24-25). Posner's last point -- there is no plagiarism if nobody cares enough to change their behavior -- is not as intuitive as his first one, and to me seems obviously wrong. For that nobody cares cannot change what the plagiarist did -- he or she plagiarized, i.e., copied and used somebody else's work without attribution, and this is true regardless of whether most or even all people don't care.

When it comes to judges, Posner says, "the principal readers of judicial opinions are not an ignorant [notice the word] laity, but legal professionals who know that most judicial opinions are largely written by law clerks." (P.22.) So there is no concealment, no deceit, no fraud. Nor is there any change in behavior (what Posner calls "reliance") because "Very few people who think judges write their own opinions would change their behavior (avoid litigation, oppose a judicial nominee, vote against a judge's retention, and so forth) if they learned the truth." (Pp. 21-22.)

It seems to me that these putative reasons for claiming there is no plagiarism here are, as the lawyers often say, thin reeds. At best thin reeds. Posner admits that "Most nonlawyers probably think judges write their own opinions" (p.20 emphasis added), and he rightly says that "judges would like people to believe they write their own opinions -- which is the element of deceit. . . . " (p.21, emphases added). This is all just another way of saying that yet another branch of our government, the judiciary -- and not just the Executive -- in effect wants to deceive people, wants them to believe a false proposition rather than the truth because the false belief, though by definition untrue, is better for the branch in question. Is better for its reputation, for its power, and what not.

The idea that the judiciary wants the people to believe a falsehood is abysmal, is just another part of the tissue of lies we are fed by government. Nor can it be said, at least historically, that the professionals all know the truth even if the vast run of people don't. When I was younger, it was a pretty well kept secret that clerks - - almost always mere kids -- were writing judges' opinions. Sure, certain of the cognoscenti knew, the ex clerks and the like. But a lot, I would bet all or nearly all, law students didn't know, and lots of professors and lawyers didn't know -- perhaps, incidentally, because it generally wasn't done, as is tipped off by Posner's statement that "nowadays" most judges don't write their own opinions. When this started to happen extensively, a lot of us didn't know it and were being had, were in effect being played for chumps. And, if Posner is right about most members of the public still not knowing the truth, as I think he is, then most of the public is still being played for chumps.

You know, when people find out the truth, when they find out that they've been had by government or other big institutions, when they find out they have been played for chumps by government or big institutions, the result often is not pretty. I need not, or at least shall not, elaborate. We have seen plenty of evidence of the horrid results since 1960, including (but not limited to) results occurring because of Viet Nam, Watergate, and Iraq. Nor should it be forgotten that, in our politicians, judges, big businessmen, media and other powerhouses, we are dealing with what one could think the equivalent of what the French once called the first and second estates.

Even worse than the admitted fact of judicial opinions being written by kids who just graduated from law schools, and, one gathers, not well known even to the professionals, is that there are situations, one is told, in which judges' decisions are written by kids who are still in law schools. What would people think, how would they react, if they knew that their freedom, the custody of their children, their money depends on some wet behind the ears kid who is not even out of law school yet?

It seems pretty evident, to me at least, that people might start acting quite differently toward, much less respectfully and even antagonistically toward, the judiciary if the public began to extensively realize what is going on. It is just that possibility, after all, that largely underlies Posner's correct statement that "judges would like people to believe they write their own opinions -- which is the element of deceit . . . ." (P. 21, emphasis added.) Despite federal judges' efforts to justify their actions, outrage and political efforts to change governing rules resulted when it finally was learned that federal judges were taking trips to fancy watering holes, trips paid for by large corporations, for the purpose of listening to speakers - - mainly propagandists, in this writer's view -- who propagandized for the interests of those corporations. Why, then, should it be expected that there would not be outrage if it were to become public property that kids write opinions that judges then try to fool us into thinking are their own? - - opinions which send people to jail or for lethal injection, which take their property, which take their kids, and so forth.

Defenders of this system say, as does Posner, that the judges edit the opinions, that they commit themselves to what is said in the opinions, and one could add, that they often tell the kids how the opinions should come out and even what arguments to use. But none of this is compelling. Here I shall not extensively elaborate why not -- I shall not reiterate what has been said at length before on this website. Suffice to say now that writing something oneself gives one the most in depth view of it -- by far. It is also fair to ask why, if this is not true, and if writing opinions is not what judges are there for, Posner writes all of his own opinions, as most judges used to do. Posner could write even more books and articles, after all, while leaving the drafting of opinions to clerks. But he doesn't do this. He writes his own opinions as well as his own articles and books. There are reasons of competence, quality and pride for this.

It is also fair to ask why, if the points made here are not true, judges, as Posner says, don't want the vox populi to know the truth about how opinions are written, why they keep silent about this and want the public to be deceived into thinking they do write their own opinions. It is not too much to say that the judiciary's reputation depends in significant part on this deceit (his word) -- it is a deliberate deceit just like the Executive deceives people and legislators do, and the judges know it is a deceit. Maintaining their reputation is more important than honesty, it appears. (What else is new in an America where honesty has pretty much gone out the window?)

Deceitful maintaining of reputation against the possible bad views of those of us in the vox populi is thought necessary to forestall some of the very consequences, some of the "reliance" or changes in action, that Posner talks about. Lots of people likely would oppose judicial nominees who have prior judicial experience to judge by, or would "vote against a judge's retention" (p.21), and legislators might (be forced to?) start asking very embarrassing questions at nomination hearings, if it became known that judges don't write their own opinions, let kids write them, are sending people to the slammer, or taking their kids away, or causing them to lose money or property, on the basis of what kids are saying in writing. People might also begin avoiding litigation and trying to settle their disputes in other ways -- through mediation or arbitration by experienced persons, or through plain compromise (which of course would not be all bad) if it became widely known that judges' decisions are being written, are sometimes even being made, by wet behind the ears kids. What better proof of all this can there be than that the judges are smart enough not to want the truth to get out, want the deception worked on the public to continue, thereby forestalling possible questions and possible declining use of courts?

The work of another who writes one's stuff inevitably has at least some influence over the final product, sometimes a very great influence on it. It surely can have more influence than if the person is merely doing preliminary research for the boss. All this is true whether the assistant works for a legislator, a corporate executive -- or a judge (Indeed, there have been claims that bitter footnotes assaulting other Justices in some Supreme Court opinions have been the handiwork of the young clerks). Some degree of influence being undeniable, if it got around widely (as it should) that clerks write the opinions, it would seem that the media, bloggers, the public, etc., would start asking embarrassing questions (as they should), including at the time of nomination hearings ( and regardless of whether the nominee has prior judicial experience). They would begin to ask who the nominee has or will hire as clerks -- a clerk from Harvard Law School, after all, will likely bring very different views about a lot of things than one from a heavily religious based law school or from a heavily minority law school. They will ask the extent to which clerks drafted opinions, and which opinions, in prior judicial posts the nominee held. They will almost surely ask what, if anything, the nominee would do to hire minority clerks, who today certainly are a minority of clerks, or, perhaps, to hire clerks who are originally from working class homes, who may be next to nonexistent today. These are questions that competent legislators would ask because people from these groups often have influence and have votes, but which the legislators currently do not ask -- to the great relief of the judiciary, one imagines. But if it got round the body politic that clerks -- kids -- are writing the opinions, sometimes heavily influencing them, sometimes even making the decisions, there might well be a lot of pressure on legislators to ask questions of judges and nominees. This is simply another reason why Posner's argument that people do not care about the judges' deceit (his word), and therefore there cannot be plagiarism, doesn't hold up.

If Posner's argument doesn't hold up when it comes to judges, I think it falls into complete collapse when he discusses politicians. Although one could theoretically think certain of his language is just ambiguous enough so one can't be absolutely certain of his opinion, he clearly does appear to be saying that books (and blogs) written for celebrities by ghostwriters who receive no attribution, including such books written for politicians, do not constitute plagiarism because the public knows of the ghostwriting and, where it doesn't know of it, would not care even if it did know of it -- and, it is implicit in this, would not change its actions if it knew of it. (See pp. 24-26.) The situation, he says, is the same as with judges' opinions (p. 24).

When it comes to books ghostwritten for celebrities, including politicians, he says, "the public is not fooled," because "there is no expectation of originality" to begin with. (This one finds disputable, at minimum.) Beyond this, when it comes to judges, politicians, and celebrities, "there is a defensible rationalization for any deceit involved in their use of ghostwriters. [Notice the idea of "defensible rationalization for . . . . deceit."] It is that in the case of a public figure what is important is not authorship but commitment (This is another way of saying the public is not really fooled.)" (P. 25.) For by claiming authorship, the celebrity or politician or judges "are affirming their commitment to the contents of the work" (p. 25).

With regard to Hillary Clinton, Posner says that although the public does not expect originality from a celebrity or politician, and therefore is not fooled when a book is ghostwritten (a questionable, even highly dubious proposition), still this may not be always be the case because "the increasingly common practice of identifying the ghostwriter in the book may create the impression of celebrity authorship when no ghostwriter is mentioned, as in the case of Hillary Clinton's book It Takes a Village, where the contract with the ghostwriter forbade disclosure of her role. Yet one cannot imagine the public caring."

"One cannot imagine the public caring"? That statement struck me as incredible. Let's face facts. Clinton and her husband are widely thought to be two grasping, dishonest, basically immoral, excessively ambitious characters who simply used each other for the purpose of getting ahead in politics. Forget Bill and Monica. In the Senator's own case she gave us the business about not being a Tammy whoever it was just standing by her man, is accused of having been a major reason for the failure of reform of medical care, somehow quickly converted a thousand dollars into $100,000 in cattle futures, suddenly had long lost billing records (I believe they were) show up in plain sight on a table in the White House after many months of being "lost", has apparently changed positions to support certain big businesses that gave her a lot of money for campaign funds, dissembled on Iraq, and, as I think Senior Wences used to say, etcetera, etcetera, etcetera. Her reputation for honesty and straightforwardness is not of the highest, shall we say, and a lot of people despise her because of it. Yet, this woman is now a presidential candidate, and on occasion one reads a trumpeting of her views as she expressed them in the book she is said to have written, "It Takes A Village." Yet the truth is that she did not write this book? And the truth also is that, obviously for the purpose or at minimum with the effect of deceiving us into thinking she did write the book, and to get politically advantageous credit for writing it -- in order, that is, to do what was done by the deceitful John Kennedy who to this day falsely gets credit for writing a book that was in fact written by his aide, Ted Sorenson, and even got a Pulitzer for it ("Profiles In Courage") -- this woman who has been regarded as deceptive, even outright dishonest, made sure by contract that a ghostwriter would not "blow the whistle" by revealing that she, not Clinton, had actually written the book? Yet, despite this, "one cannot imagine" anyone caring? No one is going to care, or to act on the knowledge, even as she runs for President? No one would speak out about it and criticize her, even as she runs for President?

Wow. I would think that The Wall Street Journal editorial page and other conservative organizations too, as well as lots of liberals who dislike her, sometimes intensely, would have a field day as the primaries and the election draw closer.

Now, it is my own ignorance, but before reading Posner's book, to the best of my recollection I had never heard or read anywhere that Clinton's book was ghostwritten or that the ghostwriter was contractually forbidden from disclosing her role. I had not heard it from colleagues who can be called news junkies, some of whom despise the Clintons and seem to regularly have a list of their sins or claimed sins in mind. Asking colleagues about the matter, some had a dim recollection of having heard of the ghostwriting, but none could recollect having heard of a contractual agreement preventing disclosure. So I had the matter googled by an expert googler. It turns out that the matter had come to public knowledge and been written about over ten years ago. In 1996, for instance, Time Magazine had a very short piece on it, and an article in The New Republic had a few paragraphs on it. Then in September 2002 the ghost herself, Barbara Feinman (by 2002 Barbara Feinman Todd), wrote of it as part of a much longer article in the (low profile) magazine of The Association of Writers and Writing Programs. Feinman Todd pointed out that the White House had issued a press release early on saying she was helping on the book and, when her name did not appear on the published work, or in its acknowledgements, "the anti-Clinton forces went to town," "with the likes of everyone from Don Imus to Maureen Dowd to Rush Limbaugh weighing in." "The book," said Feinman, was "a best seller and its audio version won Mrs. Clinton a Grammy," though in the ghost's opinion "it was at best a mediocre political tract." (Thus the power of celebrityhood.)

It is not certain, one gathers, exactly how much of "It Takes A Village" was ghosted and how much (if any?) was written by Clinton herself. Feinman Todd says "we produced drafts in a round robin style," but that Clinton's "extremely hectic schedule" made "writing a book without assistance . . . logistically impossible." As a bottom line, after one reads on the subject, it would seem that the ghost wrote a lot of it, regardless of methods of collaboration or other things.

Also in 2002 (in March) a Washington lawyer named Gregory Baruch (who specialized in the law of unfair trade practices and copyright), wrote a fairly long piece in a Sunday Washington Post in which he briefly mentioned Feinman's ghosting. Baruch's view on ghosting, let it be noted, was this: "There's a word for it when you persuade people to pay money for something under false pretenses: fraud . . . . But publishers seem exempt. These days, entire books are written by people other than their purported authors. Only it's not called fraud. It's called ghostwriting. And it's a common practice in the literary trade." Indeed, "publishers have taken the practice a step further. Not only are there ghostwritten celebrity memoirs, there are also ghostwritten celebrity novels. One such example is 'Swan,' the 1994 tale of a fashion model who is the victim of blackmail, supposedly written by supermodel Naomi Campbell. The publishers insisted that Campbell wrote the book, despite her apparent unfamiliarity with it. During an interview she admitted, 'I just did not have the time to sit down and write a book' (although she did have time to promote it)." Baruch goes on to explain the techniques being used to hide the ghosting, and points out that the point is to "brin[g] out products that make money off unwitting readers." That, of course, is indeed the point -- to make money off the unknowing.

It is true that one may say, on behalf of Posner's comment that "One cannot imagine the public caring," that after it was known at least to some that Clinton's book was ghostwritten (to some apparently significant extent), she was elected Senator from New York. But one would think that a race for President could be quite a different story. This writer, at least, is hard put to think that known dishonesty -- attempting to hide ghostwriting -- will not be something her opponents, especially Clinton haters of all political persuasions, will seize upon.

Posner's view about the ghostwriting done for another figure whose fame basically arose from politics, though she was not herself a politician, is also interesting -- and, one again thinks, dubious. He says "Margaret Truman, President Truman's daughter, is widely believed to have sold the use of her name to one or more professional mystery writers, who wrote and published mysteries 'by Margaret Truman' without acknowledgement of their role." (P. 43.) He says "Some readers would have been indignant" had they learned the books they thought had been written by Truman had in fact been ghostwritten (p. 44), and calls this "another case where a harm results not from the plagiarism but from its discovery" (p. 44), thereby indicating that maybe it's okay to cheat, just don't get caught because there is no harm if you're not caught. He then asks "Would that [indignation] have been a justified reaction?", and finds that the answer is no. Readers who "were attracted to the books by the celebrity of the 'author' and perhaps [perhaps??] the oddness of presidential offspring writing mysteries" would not seem to have been "hurt by the deception itself. Did they forego reading better mysteries? But they did not read the Truman books in expectation that they were superior mysteries by virtue of their authorship." (P. 44.)

Posner then finds that there were others, however, who were injured by the rumored "deception" (if it really occurred, which, as I say, has not been proved)." (P. 45.) They were not readers, nor were they the ghostwriters because the latter "consented to and were compensated for the deception." (P. 44.) Rather, "They were other mystery writers, who lost sales to readers attracted to the Truman books by the celebrity of the supposed author." (P. 45, emphasis added.) In other words, there was plagiarism because other writers were harmed by loss of money.

Now, from all of this (and from other points in his book), one deduces that there seems to be an underlying idea which is pretty clear. To Posner, injury often -- not always, but often -- requires economic injury. The fact that one has been had, that one has been played for a chump, that one has been the victim of deceit, that one can be quite outraged by this and even deeply emotionally upset by it, does not necessarily cut any ice with him. Unless, there is some kind of evident monetary damage, there is no damage. (Again, not always, but often). That is why he thinks readers of Truman's books suffered no damage whereas competitors did. It also relates, inevitably, to his claim that nobody would care who wrote Hillary Clinton's book. For implicit in his stated view that nobody would care that she herself didn't write it, is that nobody would care about being had, about being deceived, or about having paid good money for her book -- the theoretical argument in the latter regard may be that they would have spent the money anyway, maybe on some other book. (Of course, in economic terms, they would have suffered opportunity cost damage.)

Posner is not unaware that monetary damage is not the only type of damage people suffer in this continuously, omnipresently damaging world. Elsewhere he has talked of hedonic damages -- which, as best I (quite imperfectly) understand it, is damage to the quality of one's life, to one's joy in living -- and in "The Little Book of Plagiarism" itself he mentions "the European doctrine of 'moral rights' . . . [which] entitles a writer or other artist to be credited for his original work . . . ." (P. 35.) But, nonetheless, he very often conflates damage with economic damages, and does not give credence to people's hurt and anger at being had -- and being had is, one notes, a constant today, to the point where a lot of people have ceased believing, or believing in, a lot of things, including government.

What I take to be Posner's lack of sympathy, or empathy, for people who are outraged at being had, raises, of course, a couple of fundamental points about our society. One is evident. One may not be.

The evident point, of course, is that for at least about 47 or 48 years or so, this has been a society that, at least in its upper reaches -- its elite reaches where judges, politicians, big businessmen, Wall Street tycoon, big media and celebrity academics dwell -- places an ever lower premium on honesty. Liars and cheats in power usually suffer nothing. Most of them don't go to jail, aren't made to pay huge fines or damages, manage to make comebacks when caught out doing something wrong (a point Posner discusses a bit). Do I really have to elaborate the history of this horror show since about 1959 or so? That so low a premium is placed on honesty has not always been true. In England in the 1600s believe it or not, as historian Stephen Shapin recently argued, "lying was seen as incompatible with a civilized society." But the 1600s are a long time ago. Today all is different. Deceit is everywhere. It could even be considered the prerequisite to success in many areas, particularly including politics, even though it may also be the precursor to long run failure despite short term success. Again, is it really necessary to elaborate in this regard as to what has happened in so many areas of life in this country in the last 47 years or so?

As deceit -- lies, half truths, deceptions, frauds -- have become more and more ingrained in our society, the idea that being had, being fooled and deceived, is ipso facto an injury has declined. (This isn't 17th century England, you know.)

Of related low standing among the elite, at least among the federal judges segment of it (but other segments too), is the idea that outrage -- fury -- at horrid policies that may even be destroying the country should be considered an injury to the ordinary person. But it is an injury, you know. It is a deep seated emotional injury, even trauma. But the powers that be in this country (George Bush, Congressmen), often don't give a damn that people suffer this kind of trauma, and judges have developed legal doctrines -- legal claptrap, if you ask me -- that let them ignore the outrage.

So, as I say, the low regard for honesty is the point that is evident. A less evident point is that Posner is making stuff up when building his arguments. He is making it up that people won't care that Clinton didn't write her book and tried to stifle knowledge of this, or that people were or were not harmed if Truman's books were ghostwritten, or with regard to lots of other statements of claimed facts he makes throughout the book (a few of which I will discuss later). Now, don't get me wrong. I don't fault Posner for this. What he is doing is what every one of us in the law has been taught to do since our first day in law school. Posner is simply better at it than almost anybody else, just as he is better than almost everybody else at most intellectual tasks in law.

In law, we often -- even usually perhaps -- work on problems where necessary or desirable facts are missing (as is also the case in business, politics, the military or what have you). We are also taught from day one to build a logical argument. Since facts are missing, one substitutes logical sounding hypotheses as to what the facts are likely to be, and as to what conclusions are likely to flow in the real world from one's arguments. Thus, Posner posits the fact that (allegedly) the public would not care that Hillary Clinton did not write her book and contractually tried to hide this. He doesn't and, as far as one knows, couldn't point to surveys or statistical studies showing, for example, that 93 out of every 100 people wouldn't care a bit if they knew Clinton's book was ghostwritten and that the ghostwriter was contractually bound not to reveal his or her role. So he makes it up because it seems logical to him -- and expresses the idea by saying "One can't imagine" -- not "it has been shown by extensive factual investigation," but "One can't imagine" that the public would care who wrote her book. It's pure invention.

Now I'm not faulting Posner for making it up. To repeat, this is what all of us in the law -- unlike scientists and historians, perhaps? -- have been trained to do from the day we walked into law school. We have been trained to make up arguments and putative, but we think likely, facts in support. Posner is much better at it than most, as said. But a problem with making things up and saying them because they seem likely to you is that somebody else may have a very different, if equally unprovable, view of what is likely. One's view is bound to depend, will almost certainly depend, on one's life and one's history, one's sympathy and ideals, one's view of human beings, etc. That is why law schools say, and had a big role in persuading the Supreme Court, that affirmative action is needed to obtain diverse views in the classroom. That is why Posner says the public won't care who wrote Hillary Clinton's book, whereas I think lots of people would care if they knew (and the same dichotomy of views would exist for Truman's books). And that is one of the reasons why judges, and their hot shot clerks who finished at the very top of their classes at "elite" law schools, and people at the top of the Executive Branch, and top Wall Streeters, members of the elite all, often see the world a lot differently from those of us who have not had, or have had many fewer, "elite" experiences.

There is, of course, great potential harm to be done to the ordinary guy when the elite, who often seem to live in a different world than you and I and other men on the street, make policy on the basis of world views -- on the basis of made up facts (WMDs, anyone?) -- far different from the facts that others of us think exist. Posner, I hate to say, may be an excellent example, ironically because of his brilliance. He is so fluent, so smoothly convincing, and so influential that the views he states can have a lot of impact -- in fact, much of the legal world has adopted his creation called law and economics. Yet to use a word I hate (standing for a philosophy that leaves me cold), when one "deconstructs" what Posner is saying, when one "unpacks" it (to use another jargonistic word), it may not hold water, or may at least be highly debatable. It may significantly be unproven, an ipse dixit, an ex cathedra prenounciamento with which people of other backgrounds, especially less elite ones, could disagree, even bitterly disagree. One notes in this regard that in the past there have been articles which savaged Posner, at least in part because of claims that he was making up things that the writers thought untrue or was using methodologies they found absurd. The savaging was of a degree not often seen, though Posner himself once did the same in regard to William O. Douglas.

Let me make a few additional points before turning from the subject of harm that occurs when people claim credit for stuff written by others. There are times when the existence of harm is not a mere matter of disagreement between people who see the world differently, or between people who place more value on the need for honesty and those who may place a lower value on it or find overriding moment in other factors. There are times, that is, when harm is factually palpable. The pharmaceutical industry pays noted doctors to sign articles extolling drugs or other medical products. This is done, of course, because it helps persuade other doctors to use the drug or product discussed in an article. Noted doctors sign these articles as the alleged sole authors, even when they have had little or no input into the writing, or even the editing, of the article. The articles may actually have been written, indeed, by the pharmaceutical company's marketing department. Nobody with any experience has to be told that language, emphases, omissions, tone, etc. can be, usually are, very different depending upon who writes a piece -- in any field. Even more likely must this be when the writer is a marketing department, whose job it is to sell its company's drugs, not a careful scientist or medical man. This kind of falsely claimed authorship is positively dangerous; if memory serves, it has already proven dangerous in practice because, to the harm of patients, doctors who read the articles prescribed the drugs or products in reliance on the reputation and statements of the supposed authors, who of course are not in fact the authors. There is here plagiarism, fraud, call it what you will. Whatever you call it, it is dangerous. My view is that the people who do it should go to jail, doctors who falsely sign as the putative authors and drug company executives alike.

Yet, above and beyond specific harms that one can conjure, or can point to in the real world in specific areas, lies an even more important question, one regarding the basic philosophy of persons and nations. It is a question alluded to earlier, the value placed on honesty, especially when honesty is pitted against other factors. It is this writer's opinion, as said here before, that honesty and intolerance for dishonesty -- is the single most crucial aspect of a society, is the aspect on which all else, or at least most else, depends.

This opinion, to be honest (yuk, yuk), came to me as I wrote the four volumes of the memoir of a career called Thine Alabaster Cities Gleam (a title which, as explained in the quartet, is a line from a verse of the song America The Beautiful.) Writing a memoir -- at least if one writes it himself -- inevitably causes one to focus on fundamental matters, underlying matters, that one might otherwise simply skate over. And as I wrote the volumes of Thine Alabaster Cities Gleam, it became ever increasingly clear that most of the disasters of nations and individuals are in some way caused, or at minimum abetted, by some form of dishonesty, ranging from outright lies to concealment of information. Think on it in your own experience, and in your own personal life, and chances are you may come to agree. For after all, when people know the full truth, they are likely to take decent, competent action. In the public sphere (as opposed to personal life), in this writer's generation, it is immediately evident that Viet Nam, Watergate, Iran Contra, the savings and loan debacle, the stock market meltdown of the early 2000s, the current Gulf War, were all the result of, or at minimum were abetted by, some form of dishonesty, by outright lies, half truths, concealment of the truth, or all of these.

When the idea of the overriding importance of honesty took hold, I confess to having felt some trepidation that the view was wrong. After all, nobody else seemed to rate honesty as so crucial, as the fount of everything else. This trepidation was strong enough that the preface of Volume III almost apologizes for holding the idea. But, in the last year or two, mainly as a result of the debacle in Iraq, the idea has been gaining traction, one thinks. More and more, people seem to be recognizing that honesty is the foundationstone on which all else depends.

Yet, the foundational view is not, of course, universally held, and especially not among the political, intellectual and business elite, who have grown up and prospered in a different system and who think in ways that they regard as broader and more sophisticated. To the elites' way of thinking, other factors are as or more important than honesty. So it is that judges dishonestly pretend to write their own opinions when they do not in fact do so. So it is that celebrities and politicians put their names as sole authors to books extensively or even wholly written by others. So it is that lots of the big shots of society fraudulently claim for themselves, for their own monetary or prestige benefit, the credit due others. What they do is dishonest -- is fraud, as Gregory Baruch and Posner have both said. But our society allows and rewards this despite the fraud. (Yet one wonders why the fraudulent claims of Bush & Co were not heavily challenged before the war? We tolerate, even encourage, and too often do not seek to uncover fraud and dishonesty, and this was one of the factors at work before the war even though few if any have wanted to say or admit it.) It is, as said before, pretty ironic that Posner, who is not guilty of the fraud, who does all his own work, defends the fraud. This must in part reflect the hold on the American mind of tolerance for dishonesty of one type and another. In this writer's mind, however, honesty is the cardinal virtue, and, apropos of the question of harm from plagiarism or from anything else, dishonesty should be regarded as in itself dangerous and harmful to society -- because it so often proves in fact to be dangerous.

This leads to yet another point. Posner and others -- the publishers referred to by Baruch, for example -- think that in reality ghostwriting, even extensive or 100 percent ghostwriting, often is not in fact dishonest because everybody knows there has been ghostwriting when celebrities or politicians claim to have written books. Well, not everybody knows this, either in general or in specific cases. This writer, for example, while not a total naïf (although surely not as sophisticated as others), did not know about Clinton's book (which most of my colleagues didn't know about either) or the rumor about Truman's books, or the ghostwriting of a host of other works mentioned by Posner and Baruch. What seems to me to be true is that, perhaps especially in a few places like Washington, the fact of ghostwriting is known to those in the elite circles, while large numbers of us common folk do not know about it and, chump-like, and being (accurately) played for fools, think these people wrote their own books. Indeed, ala Baruch's points, one might ask why, if knowledge that the books are ghostwritten is so widespread, the false putative authors, and the publishers, often go to such lengths to heavily disguise or totally conceal the fact of ghostwriting, and (successfully) do so in order to make money and, in the authors' cases, also to claim credit. The claim that everybody knows of the ghostwriting doesn't wash. The claim is "merely" another in the widespread chasms in thinking these days between the elites and the commoners, between the first and second estates and the third estate.

I turn now from the question of harm to the question of punishment. Posner has a lot of views of great interest relating to this. Let me present a large number of them at a blow, en masse as it were, so that responses can be presented identically.

"[O]utside the school setting," says Posner, "[b]y far the most common punishments for plagiarism have nothing to do with law. They are disgrace, humiliation, ostracism and other shaming penalties imposed by public opinion . . . ." (Pp. 35-36.) He believes that "The stigma of plagiarism seems never to fade completely, not because it is an especially heinous offense but because it is embarrassingly second rate; its practitioners are pathetic, almost ridiculous." (P. 37.)

He further says that the more difficult it is to detect plagiarism, the greater should be its punishment in order to deter it. Conversely, there is no need of heavy punishment if plagiarism is likely to be detected (unless, perhaps, the sheer audacity in the face of likely detection calls for heavy punishment). (Pp. 78-81, 84.) "[P]lagiarism in a published work," he says, is impossible to conceal in the usual case in which the work plagiarized was also published" (p. 79), and "A deterrent to plagiarism by popular writers is that the greater the commercial success of the plagiarizing work, the more certain its plagiarisms are to be detected." (P. 80.)

"Plagiarism by professors," he continues, "tends to be punished less severely" than plagiarism by students. (P. 89.) "This is not only because plagiarism in published work is more likely to be detected than plagiarism in an unpublished student paper," but also "because professors identify more with each other professors than with students." (Pp. 89-90.) As well, "plagiarism by a published writer is a chump's crime, less likely to reflect a serious larcenous intent than a loose screw." (P. 90.) Major writers are bound to get caught, as said, and, for example, "Even [Doris] Goodwin will long bear the scars of her plagiarism," (p. 91). It should be noted that she defended it by "implausibl[e]" reasons (p. 93), and "hired Robert Strum to drum up support for her in the media. Laurence Tribe leapt quickly to her defense, contending that her plagiarism had been inadvertent (though there was no way he could have determined that to be the case) -- like his! And a string of prominent historians led by Arthur Schlesinger Jr. signed an open letter to the New York Times stating flatly that Goodwin 'did not, she does not, cheat or plagiarize. In fact, her character and work symbolize the highest standards of moral integrity.' The historians said these things though she had acknowledged supposedly "'inadvertent'" copying, and her claimed reasons for the plagiarized portions of her work were, as said, "implausibl[e]."

"Politics," says Posner, "may have played the decisive role in Goodwin's surprisingly swift rehabilitation." (P. 94.) He adds that "the Left, which dominates intellectual circles in the United States, is soft on plagiarism" (p. 94), a position Posner supports by quotes from two female writers whose statements would seem pretty far out. (Pp. 94-95.)

These Posnerian positions contain much of great interest, some of which one agrees with, some of which one disagrees with. Let us, then, "deconstruct."

Is it true that difficulty of detection should be a determinant of degree of punishment, so that, because of general likelihood of detection, we can usually rely on social punishment like "disgrace, humiliation, ostracism and other shaming penalties imposed by public opinion"? One is quite dubious about this entire proposition.

The fact seems to be that, at least in the case of such persons as celebrity authors and celebrity academics, the shaming quickly fades. Whether because of heavy, smart public relations, great talent, sometimes being a genuinely nice person, academic reputation, or other reasons, the people who have plagiarized make quick, complete (or, at minimum nearly complete) comebacks. Doris Goodwin -- who is enormously talented and, in my brief experience with her taping two one hour TV interviews on her wonderful "Team Of Rivals," seems a simply terrific person -- has plainly made a great comeback. Hillary Clinton is running for President despite the ghostwriting, which so far hasn't stopped her political advancement notwithstanding widespread dislike of her (although it could play a role in stopping her in the future). There are people at the Harvard Law School who have suffered only very lightly if at all. The absurd cases of Professors Ogletree and Tribe, and Dean Kagan, have been discussed here extensively in previous postings, so they shall not now be elaborated again. (Posner, one notes, plainly implies that large parts of Ogletree's book "All Deliberate Speed: Reflections On The First Half Century of Brown v. Board of Education" were "managed," i.e., written by assistants (p. 98), whereas this writer was aware of only six paragraphs totaling 824 words. If Posner's plain implication is right, he knows things that this writer doesn't, and the situation is even worse than I thought. Curiously, Posner does not say Tribe produced a "managed" book, although that almost certainly seems to be the case, and could conceivably have been true more than once. In any event, neither of these Harvard Law celebrities has suffered much, if at all, from their misconduct, as often discussed here previously.)

Is the lack of long term consequences due, at least in major part (as Posner believes), to academic empathy for their own and to the left being "soft on plagiarism" -- a point which is the more important if the left "dominates intellectual circles" in the United States? (P. 94.) Academic sympathy for one's own could have a role, one thinks, especially when one views the lack of consequences for law professors at Harvard, which, as a university, is a model for most U.S. colleges and universities. (Students who plagiarize at Harvard, however, are liable to have the book thrown at them, to make a pun.) On the other hand, there have been academic institutions which lately have thrown the book (again that pun) at plagiarists, and, as discussed here in prior posts, even Harvard has done so when a plagiarist professor was not a celebrity Harvard Law professor. There is a double standard, or even a double double standard, as in so much (even all?) of life.

Whether the left is soft on plagiarism is a question. The Harvard examples might indicate the answer is yes. On the other hand, one is willing to bet that a lot of the ghostwriting and consequent plagiarism in Washington is for Republicans, not leftists. (Barbara Feinman Todd mentioned Colin Powell as having used a ghostwriter; Gregory Baruch mentioned Ronald Reagan (for his autobiography). One notes that, to support his claim that the left is soft on plagiarism, Posner cites two authors who do not appear to be widely known, who appear, indeed, to not be well known. That their comments can be held to represent the left does not seem self evident. One could think, if anything, that Posner simply seized on their views because, like a lot of conservatives, perhaps he is angry, or at least unhappy, with the much bruited David Horowitz-promoted idea that the left is too powerful in universities. And not to be overlooked is that Posner's notion that the left "dominates intellectual circles" (emphasis added), not university circles but far broader "intellectual circles," could strike one as preposterous. Most of us who are liberal think that the rise of the conservative, not to say right wing, think tanks, which have had extensive influence on American policy, has caused much of today's intellectual work and most of the ideas prevailing in at least the last decade to come from the right, not the left. The American Enterprise Institute, the Heritage Foundation, and their (many) conservative to right wing imitations are not exactly chopped liver in intellectual circles, you know.

Not to mention that, if one considers Posner a conservative, as I do, and considers this writer a liberal (as I again do) -- which lots of people think to be synonymous with the left these days (don't they?) -- one would get a wholly different idea than Posner's on who is softer on plagiarism, the right or the left.

Nor does it seem true that, at least until now, the possibility, even likelihood, of detection has deterred those who plagiarize, so that a high likelihood means that little punishment is required. The celebrities discussed here plagiarized or had ghostwriters regardless of any likelihood of detection, and who knows how many more have done so as well? And detection, when it comes, or public whistle blowing if it comes long after detection, may not occur for decades, as was true of at least one of the Harvard professors, Laurence Tribe, and of Doris Goodwin (and, in part, of Stephen Ambrose). Nor are people who have not been deterred necessarily "embarrassingly second rate . . . pathetic, almost ridiculous" (p. 37) persons who have had to resort to plagiarism in order to succeed. Goodwin second rate? I don't think so. Tribe second rate? I don't think so. One of the things that makes plagiarism so terrible is that it is a form of dishonesty, a form of fraud, that is sometimes used by the very best; not just by the second rate, the pathetic. When some of the very best are resorting to dishonesty, you know the society has a problem.

The bottom line on all of this is that, if one believes that truth and honesty are important, an idea long in desuetude but perhaps now making a comeback (due to Iraq), then one can also believe, contrary to Posner, that the perpetrators of plagiarism and unacknowledged ghosting should be heavily punished, regardless of supposed likelihood of detection. Only by heavy punishment, one would think, can this epidemic of fraud be ended.

  This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

 

Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.
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Nice to see you on OpEd News again, Lawrence!... by Jayne Lyn Stahl on Monday, Feb 5, 2007 at 11:42:48 PM
No, I cannot brag that I have read the whole artic... by Mark Sashine on Tuesday, Feb 6, 2007 at 3:07:48 PM