The Magazine

The Big Mahatma

From the October 4, 2004 issue: Laurence Tribe and the problem of borrowed scholarship

Oct 4, 2004, Vol. 10, No. 04 • By JOSEPH BOTTUM
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SUPPOSE you were doing a little research into the history of Supreme Court nominations, and you learned from one book that Grover Cleveland "bested Benjamin Harrison by almost 100,000 votes in the election of 1888, but the vagaries of the electoral college caused him to lose the election" (p. 130).

And then, browsing through a later book on the topic, you read that Harrison is remembered for "losing the popular election in 1888 by 100,000 votes and still managing to take the Oval Office from incumbent President Grover Cleveland through the vagaries of the Electoral College" (p. 63).

Perhaps you'd think it merely a matter of curious--but not impossible--chance that both authors had used the same, memorable phrase: "vagaries of the Electoral College."

Suppose, however, more curiously, that further along in the newer book was the following description of the controversy surrounding Harry Truman's 1949 nomination of Sherman Minton to the High Court: "several Senators called on Minton to appear before the Judiciary Committee. Minton declined the 'invitation' and said that he would stand on his record as a Senator and a federal appellate judge" (p. 84).

Those ironic quotation marks around the word "invitation" might seem familiar. And, sure enough, there they are--and then some--in the earlier book, as well: "Republican Senators Homer Ferguson of Michigan and Forrest C. Donnell of Missouri requested that Judge Minton appear before the Senate Judiciary Committee to respond to questions. He declined the 'invitation,' noting that he would stand on his record as a Judge and Senator" (p. 231).

By now, of course, your radar would be fully active, and you'd be scouring both books for telltale, otherwise inexplicable parallels. Like the phrase "Holmes mold," which appears in the later book as: "The chairman of the Judiciary Committee, Senator George Norris, immediately made it clear to President Hoover that he and his fellow committee members, mostly Democrats and Progressive Republicans, would insist upon a liberal jurist in the Holmes mold" (p. 80).

In the earlier book, the same sentence can be found almost verbatim: "But almost at once the Chairman of the Senate's Judiciary Committee, George W. Norris, made it plain to the President that he and his fellow committeemen, largely Democrats and Progressive Republicans, would insist on a judicial liberal in the Holmes mold" (p. 191).

It would no longer seem just a coincidence that both books refer to Truman's "buddies" benefitting from a "crony appointment" (p. 224 in the older book and p. 68 in the newer)--followed by "Truman . . . liked them; he liked their politics" in one, and "Harry liked his friends, and he liked their politics" in the other (p. 224 and p. 69).

Or that the earlier book recounts how "Others were rather more specific" when they "urged Hoover to nominate Benjamin Nathan Cardozo, Chief Judge of the New York Court of Appeals"--since, after all, the later book recounts much the same thing, in much the same language: "Others were more specific" when they "urged Hoover to nominate Chief Judge Benjamin Cardozo of the New York Court of Appeals" in the newer (p. 191 and pp. 80-81).

And what if, finally, you were to discover an identical nineteen-word passage in both books: "Taft publicly pronounced Pitney to be a 'weak member' of the Court to whom he could 'not assign cases'"? (p. 164 and p. 83). The conclusion would then seem unavoidable: The later book is doing wholesale borrowing from the earlier.

Or, to make things rather more specific: In 1985, Harvard University's Laurence H. Tribe, the most famous and widely cited constitutional law professor in the United States, signed his name to a book called God Save This Honorable Court that now appears--how shall we say it?--perhaps "uncomfortably reliant" on a 1974 book called Justices and Presidents by the University of Virginia's Henry J. Abraham.

POOR HARVARD seems to be going through a spate of such incidents. A national news cycle was generated in 2002 when THE WEEKLY STANDARD broke the story that Doris Kearns Goodwin--a member of Harvard's Board of Overseers and a former professor of government at the school--had done some serious copying for her 1987 book, The Fitzgeralds and the Kennedys, and then bought off one of the authors from whom she lifted her material.

Next, in a more complicated case, Harvard law school's Alan Dershowitz was accused of overusing a single secondary source for his 2003 book, The Case for Israel.

Finally, just a few weeks ago, on September 3, Charles J. Ogletree, Harvard's Jesse Climenko Professor of Law, admitted on the university's website that the assistants who'd actually prepared his new All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education lifted six consecutive paragraphs from a 2001 book by Yale's Jack M. Balkin.