Constitutional law professors and our critics
crossf at mail.utexas.edu
Thu Sep 30 07:13:52 PDT 2004
Somehow, I think I agree with Eugene's post but disagree that it's a
defense of the Weekly Standard. We don't expect journals of opinion to
produce evenhanded commentaries, and they have no obligation to. I think
we should expect such journals to be correct in their facts, though, as
As I read it, the Weekly Standard accused Tribe of plagiarism and then
cited numerous examples to evidence this. I think we are all agreed that
one of those examples, the 19 word sentence, qualifies as plagiarism. I
think we are nearly all agreed that many of the other examples are simply
not plagiarism. Referring to Truman's "crony appointments" is not
plagiarism, though the article pretty clearly implied it was. Thus, I
think many of the factual claims of the article were wrong.
Would they have hung an entire article on the single 19 word sentence? I
doubt it. Thus, I think they had to scrounge up false claims of plagiarism
in order to even have an article. I suppose the article might provide some
service (beware stealing even a single sentence in a long book), but I
believe it was also false in its broader implication. For this article to
have salient meaning, to be newsworthy, it implicitly states that Tribe's
work is beyond the pale for academic work generally. Given what the
Standard came up with, I suspect it is better than average for these works.
At 11:18 PM 9/29/2004, Volokh, Eugene wrote:
> Hmm; seems to me that opinion journals -- the Weekly Standard, the
> Nation, the New Republic, or whoever else -- in the process of expressing
> their opinions, also make factual claims. They have an obligation to be
> accurate in their factual claims. But if they make accurate allegations
> about Prof. Liberal, what reason is there to ascribe to them some sort of
> obligation to try to find some unknown conservative professor to make
> similar allegations about?
> Seriously, say that you find The Nation accusing a conservative
> professor of plagiarism, or for that matter a conservative Senator of
> hypocrisy or folly or what have you. Would you say "No, the Nation
> shouldn't do this, since opinion magazines should engage in
> opinion"? Would you say that The Nation now has an obligation to find
> liberal Senators who are guilty of similar offenses? Would anyone on
> this list? If so, I'd very much like to hear it, since my understanding
> is that this has never been understood as the obligation of ideological
> magazines such as The Nation, The Weekly Standard, and the like.
> The "mistake" in the posts I was criticizing is a category
> error: The assumption that because we demand evenhandedness from, say,
> The New York Times or other newspapers that hold themselves out as
> neutral reporters of the news, we should likewise demand it from
> ideological journals. I don't think that this is their job. They
> criticize their adversaries, and rarely their friends; they certainly
> don't go out of the way to try to discover friends to criticize, which is
> what I understand Bryan's and Bobby's posts to be demanding. That's
> been, as best I can tell, the general expectation of some journals, and
> there's nothing wrong with their doing it.
> Let me tie this back to us constitutional law academics. We are an
> era where (1) constitutional law scholars are quite likely to become
> public intellectuals and political players, or in any event influence
> legal debates, and thus draw criticism, and (2) there are more media
> outlets than ever -- here it's a magazine, but for instance in the
> Bellesiles scandal it was originally a blogger and a discussion list
> participant, Clayton Cramer, who began to intensely check and criticize
> Bellesiles' work, and as to Tribe and Ogletree much of the criticism has
> been conveyed by a blog and e-mails -- that are willing to engage in such
> criticism. We will hear more such charges in the future.
> It does our field and its values no good to try to minimize the
> charges by pointing out alleged lack of evenhandedness by the
> critics. Of course any particular person or organization is going to
> want to criticize some targets more than others; if the consequence of
> that is that the critics unearth genuine problems, then that's a net
> plus, not a net minus. It's better to have ten people finding errors on
> the Left and ten on the Right than to limit the error-finding to the much
> narrower zone of supposedly neutral observers. And in any event, if the
> charges accurate, they deserve to be dealt with regardless of the
> critics' motivation (and I stress again that Tribe, whom I much respect
> and like personally, did deal with them graciously and correctly).
>From: RJLipkin at aol.com [mailto:RJLipkin at aol.com]
>Sent: Wednesday, September 29, 2004 5:17 AM
>To: Volokh, Eugene
>Cc: CONLAWPROF at lists.ucla.edu
>Subject: Re: FW from Erwin Chemerinsky re: Tribe
>In a message dated 9/29/2004 1:23:13 AM Eastern Standard Time,
>VOLOKH at law.ucla.edu writes:
>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.
> Why is it "in the nature of" and opinion magazines to expose
> plagiarism-related issues of anyone at all? Opinion magazines, as I
> understand their function, should engage in opinion: "Tribes'
> constitutionalism is harmful," "President Bush's war is morally
> required," and so forth. Reporting on (and charging) plagiarism is not
> paradigmatically opinion if it is opinion in any significant and
> interesting sense at all. If that's true, and generally speaking, what
> justifies the remark (not quoted above) that "these writers [in opinion
> magazines] "have
>no obligation to be evenhanded." Surely, they have no constitutional or
>legal obligation, but these are not the only possible obligations.
>Evenhandedness seems to be a journalistic obligation, and in my world, a
>fundamental moral obligation. Thus, I'm not sure I can identify what kind
>of 'mistake' it is to lash out against these watchers on the grounds that
>they're somehow not evenhanded." Criticizing bad faith or hypocrisy in
>these matters for anyone believing in evenhandedness on moral grounds (and
>probably journalistic grounds also) seems far from a mistake; rather such
>criticism seems morally required.
> For me at least, it would be helpful for Eugene to indicate just
> what he means by 'mistake' in this context. I would think it fairly
> obvious that, in general, if an opinion magazine (or anyone for that
> matter) enters the arena of plagiarism watching, it does have an
> obligation to be evenhanded. So Eugene's explanation here would be helpful.
>Robert Justin Lipkin
>Professor of Law
>Widener University School of Law
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Herbert D. Kelleher Centennial Professor of Business Law
University of Texas at Austin
Austin, TX 78712
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