FW from Erwin Chemerinsky re: Tribe

Tue Sep 28 22:20:47 PDT 2004

	As I've mentioned in some other places (most recently on my
blog, but also on a conservative professors' list that I'm on), I also
think that the Tribe matter is much ado about nothing, and I cite no
source for that last phrase, or at least about very little.  I also
agree that errors (deliberate or not) in people's works are much more
dangerous than failures to attribute.

	At the same time, while the Weekly Standard article overdoes
things, it did correct a mistake -- as Larry Tribe himself graciously
and promptly acknowledged -- and gave an author credit that he rightly
deserved.  It also reminded the rest of us that there are now more
people watching us and commenting about us, at least us constitutional
law scholars.  And this scrutiny is probably good for legal scholarship,
even if the criticisms are at times somewhat excessive.

	I also think that it's a mistake to lash out against these
watchers on the grounds that they're somehow not evenhanded.  They have
no obligation to be evenhanded.  "Fair and balanced" is not the slogan
of the American Spectator any more than it is of the Nation or the
National Review or the New Republic.  Naturally opinion magazines will
spend more of their time and effort exposing the problems in the work of
those with whom they disagree than of those with whom they agree.  So?
That, for better or worse, is the nature of opinion magazines; and
they're still doing a service by exposing the problems, and if the Left
exposes the Right's errors and the Right exposes the Left's, the result
is still more problems exposed and, as here, corrected.  And since we
are scholars, not opinion journalists, we should happy to see problems
in legal scholarship exposed and corrected, whether or not we share the
politics of those doing the exposing.

	(I think that even opinion journals should be fair within each
story they run -- they shouldn't, for instance, cite only inculpatory
evidence and not exculpatory evidence.  But they have no obligation to
be balanced in their choice of whom they pick on.)

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bryan 
> Wildenthal
> Sent: Tuesday, September 28, 2004 10:05 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: FW from Erwin Chemerinsky re: Tribe
> 
> 
> To respond to Bob Sheridan's point, I think it would be 
> perfectly acceptable (in terms of attribution/plagiarism 
> rules), and perhaps sufficient for a "popular" book (though 
> not precise enough to suit my notions of academic 
> scholarship) to write (without footnotes),
> 
> As Holmes said [or suggested], the life of the law is not 
> logic but experience.
> 
> The lack of quotations would be appropriate because it is a 
> paraphrase or non-exact quotation, and attributing to Holmes 
> in text substitutes for a footnote. A footnote would also be 
> appropriate, though it is perfectly normal not to have 
> footnotes in college textbooks or "popular" books, like 
> Tribe's in this case. Having written one college textbook and 
> several encyclopedia style articles, I have been told by 
> publishers and editors that one uses notes of any kind 
> (usually embedded in text) only when directly quoting -- 
> otherwise listing a source in the biblio at the end of the 
> chapter or book is sufficient. I found it difficult to adjust 
> from my usual legal/academic writing style which of course is 
> footnoted or endnoted to death.
> 
> I share Bob Sheridan's view that Tribe's failure to attribute 
> or quote 19 words in a popular book without footnotes (where 
> he did credit the source in a biblio essay at the end) is 
> "much ado about very little" (paraphrasing and deliberately 
> altering Shakespeare!) although his mea culpa was certainly 
> appropriate. If only politicians (including a certain 
> incumbent President!) were so quick and gracious to admit a 
> mistake when called to their attention!
> 
> A 19-word passage is not very long. Fragments of that length 
> can get burned into one's memory or transcribed via notes, 
> research assistants' notes, etc, to the point where the 
> original source is forgotten or lost. I can easily imagine 
> that being an innocent mistake that got lost in the shuffle 
> of completing the book. I think anyone who has actually 
> written a book (or even a lengthy article) would sympathize 
> with this risk that haunts us all as scholars.
> 
> Did the Weekly Standard ever protest the often egregious and 
> outrageous distortions of historical evidence in some 
> rightwing legal scholars' work?  Interestingly, when I 
> glanced at my copy of Tribe's book in question, I noticed 
> that in his biblio essay at the end, he recommends to his 
> readers a look at the late Raoul Berger's "Government by 
> Judiciary" (Harvard, 1977), a work whose mistakes and 
> distortions (I assume none deliberate) are legendary, but 
> which has remained very influential in conservative circles. 
> Berger republished that book in 1997 (2d ed Liberty Fund), 
> adding supplementary essays further defending his views and 
> responding to some critics' points, but completely failing to 
> respond on numerous points raised by critics who had pointed 
> out rather egregious mistakes in various historical arguments 
> and misleading quotations in some cases. Berger repeated such 
> mistakes and distortions without indication or 
> acknowledgment, many of them highly misleading on the central 
> substance of his arguments. The defense of innocent mistake 
> of course becomes more difficult to sustain on the 2d 
> edition, since critics had called these to his attention and 
> he had even responded to such critics and their articles, in 
> length, in other fora, years before republishing the 2d edition.
> 
> In completing my book on the 14th Amendment/Bill of Rights 
> incorporation debates (forthcoming, I hope, next year from 
> NYU Press), I have had the unpleasant task of tracking down 
> and documenting the almost bewildering array of mistakes and 
> distortions in Berger's work on that subject, and his 
> persistent repetition of such mistakes and distortions even 
> after having them pointed out to him.
> 
> That experience, and the overall experience of researching 
> and writing that book, has made me both less tolerant of 
> scholars who pursue systematically distorted and one-sided 
> arguments, and fail to respond adequately to critics, and 
> more sympathetic to the occasional, inevitable, innocent 
> mistakes and glitches that haunt us all.
> 
> On present evidence to my knowledge, I think Tribe is far 
> more deserving of tolerance and sympathy (and respect as a 
> scholar) than (for example) Berger. So let the rightwing 
> critics be a little more "fair and balanced" here.
> 
> Bryan Wildenthal
> Thomas Jefferson School of Law
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Bob Sheridan
> Sent: Tuesday, September 28, 2004 9:26 PM
> To: Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: FW from Erwin Chemerinsky re: Tribe
> 
> 
> This does seem much ado about very little.
> 
> Part of the problem may have to do with language, or at least 
> typographical conventions.  When using quotation marks, we 
> have come to 
> expect literal exactness.  If I want to quote an idea from an 
> authority, 
> such as Holmes's "The life of the law is not logic but experience," I 
> have to look up the exact quote, which reads, "The life of 
> the law has 
> not been logic:  it has been experience."  (p.1, The Common Law, any 
> edition, since it's page one.). Otherwise I've misquoted by 
> leaving out 
> the has beens.  I like my way better.  I've improved on 
> Holmes.  In my 
> mind, at least.
> 
> I think we need an easy, typographically acceptable way of 
> making clear 
> that we're borrowing the ideas of others using some designation apart 
> from exact quotation marks.  Roscoe Pound said something to 
> the effect 
> that *one must not expect justice, but the best that the local 
> jurisdiction offers.*  If I want to refer to that idea, and 
> life is too 
> short for me to search out the exact Pound quote, what do I 
> do?  I can 
> say thanks to Pound who said something close to this.  I can 
> invent the 
> use of asterisks, as I just did.  Just not quote marks.  Or I 
> can say, 
> "Someone once said,..." and forget about Pound.
> 
> "'Tis a puzzlement."
> 
> Someone once said that. 
> 
> On Broadway, if I'm not mistaken.
> 
> rs
> sfls
> 
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