Wednesday, November 24, 2004

Managed Books in Academia - The Harvard Cases

Managed Books in Academia - The Harvard Cases



Two cases of alleged plagiarism by reputable professors at Harvard have led to some published statements about the matters, the core of which must be corrected.



The Instapundit Posting



Glenn Reynolds has posting about "managed books" in academia at:

Instapundit.com



"IT'S NOT PLAGIARISM -- they're 'managed books:



'Managed books,' Professor [Howard] Gardner [of Harvard] said, 'are a recent phenomenon in which some academics rely on assistants to help them produce books, in some cases allowing the assistants to write first drafts.'



I don't think that's good."




Managed Books - A Good Thing?



Sorry, Glenn, but in the opinion of LawPundit, you are wrong on this point.



"Managed books" are nothing new. The label may be new but otherwise students have been helping professors to write books without authorial attribution for quite some time. There is in my view nothing wrong with this long-standing practice as long as the authoring professor or professors retain and fulfill their responsibility for the content and accuracy of the final manuscript.



Managed Books are Nothing New



As a law student at Stanford Law School between 1968-1971 - over 30 years ago - I worked for a total of five professors as a student assistant. Let me say that this was one of the great experiences of my life, adding a quality to my law school education shared by very few students and being immensely useful to me personally in the ensuing years. I am thankful to all of these men for having given me such a great opportunity.



One of those professors, the late Professor John Kaplan (obituary November 27, 1989 in the New York Times), was an extraordinarily brilliant man and good friend. Obviously, John Kaplan did not need me to help him write his books in any way, but in the course of my assistantship he offered me the opportunity to help with the creation of two of his books. It was an opportunity which I gladly accepted and fulfilled. Any law student of promise would have jumped at the chance.



Kaplan knew precisely what he wanted in his books. He just needed someone to help him do some of the time-consuming footwork.



Managed Books and the Role of Assistants



It was quite clear that my contributions as a "researcher" and "editor" were being made without any attribution as an author, which would have been absurd. After all, Kaplan was at that time a leading authority in his field and I had not yet even graduated from law school. Still, there were numerous ways in which I was able to save him a lot of valuable time, and that is one reason why student assistants are hired. I wrote and selected a minimal amount of "draft material" on which Kaplan always had the final word and on which he did the final editing. From my point of view, I was thrilled: I was being paid for work which I was enjoying immensely, and from which I was learning a great deal.



I would write MY books...later.



After all, it was HIS book, not mine. It was HIS reputation that was on the line when his authored books were published, not mine. It was HIS responsibility that all materials be properly selected, and accurately written, cited, and footnoted. It was HIS intellect that was the guiding force behind what was being produced: in fact, Criminal Justice (which John co-authored with a professorial friend), one of the books that I initially helped to edit and put together, became a leading college textbook bestseller which at its peak was used in more than 300 colleges and universities.



Even though my actual role may have been only something like 5%, I like to think that not only did I play my small part in making that book appropriate in style and content to the requirements of the ultimate users, but I really think that my contribution was useful in making the book popular - and John was smart enough to see that. We were constantly asking - what ideas are we trying to get across and what material will get those ideas across in the most interesting manner to the young people John was trying to reach. The result was that we threw out a lot of boring material and put in things which were fresh and exciting.



John knew what he was doing. Indeed, I would imagine many professors could use a second or third voice in the selection of text and materials for textbooks and other publications. Allowing young people to help put educational books together puts a dynamics into the equation that might otherwise be missing.



In any case, many written documents in our modern society are "team" efforts, often worked on by many people who do not get "authorial" attribution. Major law firms are full of law associates who do tremendous amounts of quality work, all supervised or "managed" by junior or senior partners, who ultimately put their John Henrys or law firm seals of approval on documents. This is neither unusual nor undesirable.



The New York Times spends time on a Simple Oversight



In the case of the November 24, 2004 New York Times article by Sara Rimer, "When Plagiarism's Shadow Falls on Admired Scholars", this is the kind of journalism that should ordinarily be criticized for making mountains out of molehills.



Obviously, in the cases of Professors Charles J. Ogletree Jr. and Laurence H. Tribe, one has accidentaly left out the proper citations to TWO paragraphs in Ogletree's book and one 19-word sentence in Tribe's book. No one would intentionally plagiarize such small amounts of material in books running to nearly 400 pages. It was obviously a scholarly oversight and as the New York Times article writes: "The two professors said their errors were accidental, and no scholar has suggested otherwise...."



Teaching - not Scholarship - is the Core Activity of a University



What Professor Howard Gardner writes, that "Scholarship - the core activity of the university - cannot be delegated to assistants," is completely at odds with the realities in the academic world where e.g. teams of laboratory assistants do the work, supervised by a major guru. Why should it not be the same in law? It is simply more efficient, and efficiency is economically desirable.



Moreover, Professor Gardner is greatly in error in stating that "scholarship" is the core activity of the university. Scholarship is the core activity of tenured professors and those wishing to get there. The major job at a university is passing on knowledge - i.e. TEACHING - and that too is done increasingly by assistants in the form of "assistant" professors, lecturers, fellows, adjuncts, etc. So why should research and ultimate publication be any different?



Was This Plagiarism? - Hardly



In a profession where precedent and stare decisis rule, we are bound by what has been written before us and are in fact obligated to use it. We just have to cite it properly. The instant alleged "cases" of plagiarism are insubstantial as compared to the corpus of the entire book materials. It was obviously not intentional.



Much too much noise is being made about these cases, it is all a bit of the sound and the fury signifying nothing. When students turn in entire papers as their own, but which in fact are copied from the internet, THAT is plagiarism, but that is an entirely different problem, and one should not mix that situation up with what has happened in these two "managed books".

To be...or not to be...Chief Justice of the United States Supreme Court

To be...or not to be...Chief Justice of the United States Supreme Court



What does the Chief Justice of the U.S. Supreme Court actually do?



Frederic R. Abramson at his law blog Law, Current Events and Culture links to a somewhat unusual November 16, 2004 article by Dahlia Lithwick at Slate under the unnecessarily provocative title "Talk About Your Overrated Job: Why would anybody want to be chief justice?"



The article covers a current topic of great legal interest since present Chief Justice William Rehnquist may have to step down for health reasons, although no one knows this for sure.



See also in this regard the November 11, 2004 remarks of Theodore Olson at the CNN reported AP article "Former solicitor general predicts tough going for next justice." Olson is not an uncontroversial figure but is regarded to be among the top prospects for the position, should it become open.



Trademarks, Brands, Law and Reality

Trademarks, Brands, Law and Reality



Wendy Seltzer at Legal Tags, The Blog in her posting "Trademark Law Gone Bad" refers to some excellent discussion on trademarks, brands, law and the real world at James Surowiecki's "The Decline of Brands" and BoingBoing.



Surowiecki's main thesis is that trademarks and brands have historically provided a protective shield for companies, a legal protection whose power is disappearing:



"That sense of protection is eroding in industry after industry, and instead of a consumer economy in which success is determined in large part by name, it's now being determined by performance. The aristocracy of brand is dead. Long live the meritocracy of product."



The LawPundit does not doubt that some of what Surowiecki writes is true, but the power of trademarks and brands is still substantial, otherwise the world would already be in economic chaos with pure product quality deciding retail purchase decisions. The fact is that vast masses of humanity cling to the idea that "Nomen is Omen" (The Name Speaks for Itself, The Name Says it All). Just look at what the younger generations wear.



In any case, should you disbelieve this, just answer the following questions:



NAME one example of each of the following:



A Direct Computer Seller -

A Computer Operating System -

One Internet Browser -

A Software Manufacturer -

A Hardware Manufacturer -

One Blog Hoster -

Blog Software -



The odds that any of your answers are "no-names" is very small. Brands still rule the roost, although of course there can also be fairly rapid fluctuation or displacement among old and new coming brands. But all things still must have a name - and that name is important, because the name affiliated with any product accumulates "good will" as an asset.



Just look at the blog and domain name scene and at your own bookmarks or links.



The Concept of a "Social Minimum" and Poverty in the United States

The Concept of a "Social Minimum" and Poverty in the United States



Lawrence Solum at the Legal Theory Blog has a posting on "White on the Social Minimum" referring to Stuart White's new entry "Social Minimum" on the Stanford Encyclopaedia of Philosophy, quoting White:



"'People should not be allowed to starve in the streets.' 'No one should be denied access to a decent minimum of health-care.' 'Every citizen should be able to meet his or her basic needs.' These statements all express a widespread view that a political community should seek to ensure that its members are all able to enjoy at least a minimally decent standard of living. They assert the importance of what is often called the social minimum."



As a political centrist with more right-wing leanings than left, the LawPundit definitely agrees that the concept and the realization of a "social minimum" in modern society is essential to avoid social discontent in the short term and political revolution in the long term.



To take one example, as we have written elsewhere on LawPundit:



"During the Great Depression, Hjalmar Schacht, Governor of the German Reichsbank, 'played a crucial role in bringing the Hitler regime to power' as 'citizens were expropriated, and their living standards brutally lowered', leading to a right-wing dictatorship. The same thing is happening now [in Germany]."



There is in fact absolute empirical evidence that a judicious redistribution of wealth achieves the goal of a social minimum and we find that proof in a publication of The Century Foundation (TCF) entitled The New American Economy: A Rising Tide that Lifts Only Yachts. This publication shows that equitable distribution of wealth is the only viable solution to poverty:



"When considering only household earnings (before taxes and transfers), the United States does not have an unusual proportion of its population living in poverty. However, as the figure illustrates, after considering the effects of public policies, the proportion of the population in the United States that remains in poverty is significantly higher than that for other nations.



[See Figure 7].

As the figure makes clear, other countries do not wait for economic tides to turn, but rely much more than the United States does on active tax and transfer policies to lift families out of low-income status....



Policy decisions affecting income and wealth distributions are complex, both politically and substantively. Some income and wealth inequality is necessary to provide incentives for efficient allocation of time, labor, and capital. But for most Americans, the prospect of these ever-widening income and wealth gaps, coupled with little improvement in the economic well-being of the majority of the population, surely must provoke unease. Is this really the America we want?"




As always on tough questions, the right answer on the question of wealth redistribution is generally a question of degree, not of absolutist proportion. However, "a social minimum" must be achieved, otherwise - as history shows in untold cases - revolution and destruction of the system surely await one down the road. In other words, the redisitribution of wealth to achieve a "social minimum" for all is not - as many believe - a political, religious or moral question, but rather a simple issue of survival, not merely the survival of the have-nots, but also survival of the haves.



In other words, achieving a "social minimum" is a symbiotic "Solomonic" solution. As in the famed Solomonic judicial instance of the child claimed by two mothers, the child - here the society - is not cut into two halves (haves and have-nots), which leads to the death of both halves, but rather, reason prevails and the child survives intact.





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