Mercy of the Court of Public Opinion

By M. AIDAN KELLY

The system of regulations that prohibit and condemn plagiarism are full of subtle distinctions and delicate rules, and an unwary writer can easily slip into illegal territory. But if anyone should be able to stick to the rules, it seems, it should be those who deal with complicated codes for a living—like the faculty at the Harvard Law School. Perhaps that was why the outcry over a string of alleged instances of plagiarism involving Harvard Law School professors—including Frankfurter Professor of Law Alan M. Dershowitz, Climenko Professor of Law Charles J. Ogletree Jr. and Loeb University Professor Laurence H. Tribe ‘62—caused such a vicious and popular controversy.

In 2003, Dershowitz was accused of inappropriately lifting material from Joan Peters’ 1984 book “From Time Immemorial: The Origins of the Arab-Jewish Conflict Over Palestine” while writing “The Case for Israel.” Especially vocal among Dershowitz’s detractors were his ideological opponents, including Norman G. Finkelstein, a political science professor at DePaul University and a frequent critic of Dershowitz Dershowitz denies any misdeeds, and explained in an e-mail to FM that he was only “finding quotations in secondary sources, checking them against the original and then citing them to original rather than the secondary source.”

“Even on its facts the charge was false” said Dershowitz in an interview with FM. But “even if the facts were to be true [my attribution] would constitute proper citation.” He added that Finkelstein “has similarly accused virtually every prominent pro-Israel writer of plagiarism.” Dershowitz sought a Harvard investigation and was cleared of any wrongdoing.

The committeee determined that Dershowitz did nothing wrong, but accusations of plagiarism at the law school had just begun to fly. Shortly after the April 2004 publication of Ogletree’s “All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education,” an anonymous note was sent to Ogletree’s superiors at Harvard and to Jack M. Balkin, a constitutional law professor at Yale. The note alleged that three complete pages from Balkin’s “What Brown v. Board of Education Should Have Said” appeared in Ogletree’s work.

While a subsequent Harvard’s investigation found “serious scholarly transgression,” the University declared that Ogletree had committed “no deliberate wrongdoing at all.” Ogletree admitted that his research assistants had accidentally taken material from Balkin’s work and Derek C. Bok, the then-former University Harvard who led the investigation, told the Boston Globe in September, 2004 that Ogletree “marshaled his assistants and parceled out the work and in the process some quotation marks got lost.”

But Harvard’s absolution did not silence Ogletree’s critics; indeed, those like Joseph Bottum, the Books and Arts editor at the Weekly Standard, questioned the integrity of Ogletree’s scholarship and methodology.

“Ogletree conceived much of the book as a kind of double plagiarism: He set out to put his name on work done by his assistants, who, he knew, were merely rephrasing work written by other people,” wrote Bottum. Such heavy use of research assistants in the construction of his work, Bottum charged, was academic dishonesty serious enough to have Ogletree’s tenure revoked. Harvard saw things differently and did not dismiss Ogletree; the professor continues to teach at Harvard Law School.

Just a few weeks after Ogletree’s admission, the Weekly Standard lambasted Laurence Tribe—who had vocally defended Ogletree—and pointed out numerous places where his 1985 “God Save This Honorable Court” was strikingly similar to Henry J. Abraham’s 1974 book “Justices and Presidents.”

Once again, Bottum led the charge against an HLS professor, reprinting passages from both works side-by-side to show their similarities while commenting on the disparity between Tribe’s reputation and his apparent transgression. For Bottum and others, Tribe’s status as a giant of the legal world—he had argued nearly three dozen cases before the Supreme Court—made the controversy especially notable. Tribe’s colleagues rushed to his defense, including Dershowitz—who said that the Standard’s charges were political motivated— and Ogletree.

But the professor eventually told The Crimson via e-mail at the time that he recognized his “failure to attribute some of the material The Weekly Standard identified.” Tribe continues to teach at HLS and referred to the incident in a recent e-mail to FM as “one isolated and decades-old instance of carelessly incomplete attribution for which I apologized at the time and which the University concluded involved ‘inadvertence rather than intentionality.’” The embattled academic never lost the support of his fellow professors, and Dershowitz referred to Tribe in an interview with FM as “a phenomenal teacher and scholar” who had clearly made a “totally innocent mistake.”

Though they are often grouped together, these three cases should be recognized as very dissimilar matters. Much of the fire aimed at Dershowitz came from critics that were strongly opposed to his ideological views; he maintains that he committed no plagiarism, but rather made reference to the original rather than secondary sources.

There is no doubt that Ogletree’s book contained appropriated material, but HLS accepted his claim that the pages in question were the result of research assistant error. Still, some critics who accepted that he did not intend to plagiarize still question the integrity of his scholarship and his laxity in policing the work that bears his name.

Tribe’s book contains many passages which seem strikingly similar to passages in another work. But as Dershowitz pointed out at the time, Abraham offered no explanation for why he remained silent for twenty years if he noticed the similarities when the book came out, as he claims.

These three instances of controversy have many more differences than similarities. Still, they are often mentioned in the same breath in indictments or criticisms of the Harvard Law School faculty, especially in primarily conservative publications like the Weekly Standard. For better or worse, their largely superficial similarity—the common thread of a Harvard Law School professor accused of plagiarism—have yoked them together in the public imagination.