Fwd: Re: Weekly Standard on Laurence Tribe

[Matthew J. Franck]

I forward this reply to J. Frank from Steve Burbank, who is not on this 
list.  An earlier message of his can be seen below the text of mine from 
yesterday evening about 7:00 p.m.

Matt
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu
www.radford.edu/~mfranck
***************************
>Date: Tue, 28 Sep 2004 11:37:13 -0400
>From: sburbank at law.upenn.edu
>To: J Frank <jfrank9101889 at fastmail.fm>
>Cc: Conlawprof <conlawprof at lists.ucla.edu>, Tribe <tribe at law.harvard.edu>,
>    Dershowitz <alder at law.harvard.edu>, Ogletree <ogletree at law.harvard.edu>,
>    Franck <mfranck at radford.edu>, Graber <mgraber at gvpt.umd.edu>
>Subject: Re: Weekly Standard on Laurence Tribe
>User-Agent: Internet Messaging Program (IMP) 3.1
>X-Originating-IP: 140.247.230.132
>
>This seems to me just a bit overheated, but I am happy to acknowledge
>that one part of my initial post reflected a misunderstanding, namely
>the source of the media's interest in the story. That was not,
>apparently, Professor Abraham. I believe, however, that it is
>not "venerable" (not unethical, simply not "venerable")for a scholar
>to remain silent about what appears to be the use of another scholar's
>work without attribution -- particularly his or her own work -- for
>nineteen years. I also believe that it is not "venerable" for the same
>scholar to respond to a media inquiry by characterizing the person
>apparently responsible as a "big mahatma [who] thinks he can get away
>with this sort of thing." Of course, neither originally nor now do I
>wish to "attack" Professor Abraham (note in that regard that I
>referred to the "unfairness of the situation" confronting Professor
>Tribe), any more than I want to appear to condone the practices of
>scholars that lead to use of another scholar's work without
>attribution.
>
>Steve Burbank
>
>P.S. I would appreciate it if you would post this to the conlaw list,
>of which I am not a member.
>
>
>
>
>
>Quoting J Frank <jfrank9101889 at fastmail.fm>:
>
> >
> >
> > Matt Franck (as previously pointed out, no relation) in his post of
> > yesterday evening is correct in stating Steve Burbank was wrong in
> > his
> > private e-mail attack yesterday on Henry Abraham.  Burbank's e-mail
> > attacked Abraham "for his behavior in this matter" and alleged
> > "unfairness" toward Larry Tribe, on the ground that Abraham
> > supposedly
> > waited nineteen years to bring this issue "to the media's attention
> > because of pique," rather than "promptly and directly" bringing it
> > to
> > Tribe's attention.  As of this moment, Burbank has not posted to the
> > list to retract that charge.
> >
> > Franck is also correct in his post of this morning:  Alan Dershowitz
> > "should be ashamed of himself" for his public attack on Abraham in
> > yesterday's Harvard Crimson, in which Dershowitz is quoted as saying:
> >
> > "Abraham sat on this story for 20 years.  If he had a gripe, he
> > should
> > have written to Larry 20 years ago."
> > http://www.thecrimson.com/article.aspx?ref=503493.
> >
> > This "blame the victim" strategy is disgusting, especially when
> > directed
> > at someone as venerable as Abraham.  Nor is there any factual
> > support
> > for these comments.  The Weekly Standard article makes clear Abraham
> > was
> > not the source of the tip to the Weekly Standard.  Abraham merely
> > offered comments once its reporter contacted him for comment.
> > Abraham
> > can hardly be faulted for truthfully answering questions once he was
> > contacted.  Was he ethically obliged to say no comment, or pretend
> > he
> > never knew about Tribe's borrowing from his book, or pretend it did
> > not
> > bother him?
> >
> > The article sets forth the following chain of events:
> >
> > 1.  Tribe sent an email to a law school dean, which was posted on a
> > blog, agreeing with the dean that the problem of writers "passing
> > off
> > the work of others as their own" is "a phenomenon of some
> > significance."
> >
> > 2.  "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.'"
> >
> > 3.  Based on that tip, THE WEEKLY STANDARD investigated.  It
> > concluded
> > there was a serious problem involving borrowing of material.  It
> > then
> > contacted Abraham for comment.
> >
> > Still, there may be something to Steve Burbank's point criticizing
> > the
> > long delay in reporting this matter, but not for the reasons he
> > identifies.  If the WEEKLY STANDARD's reporting is credited, this
> > law
> > professor must have known about, or at least suspected, the
> > borrowing
> > for years.  Yet the snitch remained quiet.  Does it follow that
> > after
> > allowing so much time to pass, the snitch should have continued to
> > remain silent, forever, on the ethical ground that it would be unfair
> > to
> > Tribe for this information ever to come to light?  No.
> >
> > The appropriate criticism is that the snitch should not have waited
> > until Tribe discussed the problem of plagiarism.  The snitch should
> > have
> > acted much sooner, out of a general desire to see scholarly norms
> > enforced, rather than out of evident anger at Tribe's hypocrisy
> > after
> > (as reported by the article) Tribe invoked his own pristine
> > reputation
> > for meticulous attribution in defending Doris Kearns Goodwin against
> > charges of plagiarism in 2002, and then more recently opined about
> > the
> > problem of plagiarism in his email posted on the dean's website.
> >
> > The snitch's motives, it should be pointed out, quite possibly are
> > not
> > grounded in actual fact.  One need not conclude Tribe intentionally
> > meant to mislead in defending Goodwin by citing his own reputation
> > for
> > meticulous attribution, or that his subjective intent was to be
> > hypocritical in expressing concerns about plagiarism to the dean.
> > Tribe
> > may have had no idea someone familiar with both Tribe's book and
> > Abraham's book could view his statements on Goodwin as misleading,
> > or
> > his email to the dean as hypocritical.
> >
> > >From the Weekly Standard article, citing reporting done in the
> > early
> > 1990s, it seems much of the book was drafted for Tribe by a student
> > research assistant, so Tribe may have had no way of knowing about
> > the
> > borrowing of Abraham that went into the production of the text.  If
> > in
> > fact Tribe knew nothing about the borrowing of Abraham because, like
> > Charles Ogletree, he did not write the part of the book in which the
> > borrowing appears, then Tribe did not intend any misrepresentation
> > or
> > hypocrisy in speaking out as he did.  If these are the facts, if
> > anything, Tribe should be affirmatively commended for his willingness
> > to
> > comment on the record about plagiarism stories at Harvard.
> > However,
> > one can understand why a law professor, not knowing the actual facts
> > (assuming these are the facts), could perceive Tribe's statements as
> > hypocritical and/or misleading, and be motivated to finally to speak
> > out
> > on that basis.
> >
> > The appropriate criticism of the delay is not Burbank's, that no one
> > should ever have spoken out after so long.  The appropriate criticism
> > is
> > that the reason which motivated the snitch to speak out is hardly
> > the
> > best reason for speaking out, perhaps not even a virtuous reason.
> > The
> > best reason for speaking out in a situation such as this is to help
> > see
> > scholarly norms enforced, by helping see that possible violations
> > are
> > appropriately investigated and disciplined, regardless of whether on
> > the
> > particular facts concerning Tribe's book he has committed some sort
> > of
> > violation.  Perhaps we can all learn a lesson from this incident
> > about
> > the need to better police standards in our field.
> >
> > jfrank at 9101889@fastmail.fm
> >
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