Politics & Policy

Pearls Richer than Tribe?

Plagiarism allegations dog a Harvard professor.

Does Harvard Law School professor Laurence Tribe write all of his own material? Or does he often misappropriate the work of others? Tribe is one of the Left’s leading constitutional scholars, but these questions have plagued him for years.

In 2004, The Weekly Standard broke the story that much of his 1985 book God Save This Honorable Court had been taken, in one case word-for-word but usually with small adjustments, from Judges and Presidents, a 1974 book by historian Henry J. Abraham. Then–Harvard president Lawrence Summers, along with then–Harvard Law dean Elena Kagan, strongly condemned Tribe’s actions, but administered no punishment. (Tribe, Summers, and Kagan all now have ties to the Obama administration: Tribe, on leave from Harvard, runs the Justice Department’s Access to Justice Initiative; Summers is director of the National Economic Council; and Kagan is solicitor general and has been nominated to the Supreme Court.)

Through a source who provided information on condition of anonymity, National Review has learned that God Save This Honorable Court wasn’t the only book of Tribe’s to contain material that had been presented under different authorship elsewhere. His 1978 treatise American Constitutional Law contains language that mirrors passages in the November 1976 issue of the Harvard Law Review. You can see a side-by-side comparison of the passages in question here, or click here to download a Word document.

When National Review contacted Tribe regarding the apparent copying, he gave us the following statement:

I honestly can’t say that I recall the relevant events of 33 and 34 years ago with a great deal of clarity. The typewritten drafts (there were no computer files) from that period no longer exist. It is certainly possible that one or more student research assistants provided me with background memos simply describing certain recent court decisions while I was writing my treatise during 1976–78, and that I used in that treatise phrases from one or more such memos that the students also used in case notes published anonymously in the Harvard Law Review. I am not sure whether that possibility is worth discussing three decades after the fact, but to the extent anyone takes offense I would certainly apologize.

This, however, brings to mind an allegation that circulated after the Standard article ran: that Tribe’s student assistants sometimes play the role of ghostwriters.

The Standard itself noted a 1993 Legal Times profile of Ronald Klain, a former Tribe student who’s now Vice President Joe Biden’s chief of staff, that said that “many of Klain’s friends and former colleagues say that [Klain] wrote large sections of [God Save This Honorable Court], a claim that Tribe disputes.” On an episode of C-SPAN’s Booknotes program that aired shortly after the Standard piece ran, University of Georgia historian Peter Charles Hoffer, whose son attended Harvard Law and had Tribe as a professor (but did not work as an assistant to Tribe), said that Tribe “may not have done all the research, or much of the research, for [his] books. . . . It may be that Tribe is just a compiler.”

In early 2005, the Harvard Law School Drama Society performed a parody song (“I’m Larry Tribe,” set to the tune of “I Will Survive”) that made fun of the God Save incident. Tribe complained in an e-mail to his class, after which point Harvard Parody — “the unofficial blog of the Harvard Law School Drama Society,” written by “Frumpy the HLS Clown” — appeared. The site “retracted” the parody and replaced it with some new songs, several of which made reference to Klain, and one of which was titled “I’m a Compiler” (set to the tune of “I’m a Believer”).

In April of the same year, Lawrence Velvel, dean of the Massachusetts School of Law, wrote a lengthy analysis of the God Save incident on his personal blog that, in addition to calling for the dismissal of Summers and Kagan, suggested the possibility of ghostwriting.

When National Review asked Tribe about the role his student assistants play in his work, and whether this role ever constitutes ghostwriting, he had this to say:

As my many research assistants over the years would undoubtedly confirm, the line you describe is not a line I ever cross or even approach closely. The basic ideas and outlines and perspectives, and all of the substance, of the work I publish is mine and mine alone except when I publish with a co-author, as I did with my then-student Michael Dorf (in my book On Reading the Constitution). On the contrary, if anything, I lean in the opposite direction, as when my then-research assistant Jonathan Massey was listed as author of an amicus brief where I had a substantial but invisible hand. I rely on my students to gather information and data, and to draft (often with considerable guidance on my part and invariably with substantial editing once they are done) straightforward descriptions of statutes, regulations, and administrative and judicial decisions (including summaries of the facts and holdings and sometimes the reasoning), but not to provide the underlying ideas or analytic framework for what I am writing. I rely on research assistants much less than most judges and justices are known to rely on their law clerks for drafting opinions. So if I am, as you say, “accused from time to time of being overly reliant on student research assistants,” that accusation is frankly ridiculous. And any suggestion that my students “become ghostwriters” is truly absurd.

(Tribe’s reference to Jonathan Massey is in regard to a 1995 brief Massey and other scholars filed in the case William Gasperini v. The Center for Humanities. National Review also contacted Tribe regarding similarities between that brief and passages in the third edition of American Constitutional Law, which was released in 2000. Tribe pointed out that, in addition to working with Massey behind the scenes on that brief — a fact Massey confirmed — he had previously published some of the same material in a brief for the case Markman v. Westview Instruments Inc.)

Some of the students named as editors of the 1976 Harvard Law Review are also acknowledged in Tribe’s foreword to American Constitutional Law. One is Michael J. Dell, who, when contacted by National Review, wrote back:

Although I did not do any work in connection with the section of Professor Tribe’s treatise that is cited by your source, I can assure you that the notion that the most creative and brilliant constitutional law scholar of his generation would plagiarize, or that [the side-by-side comparison] you sent me suggests the borrowing of analysis or ideas, has no basis in fact. It is frankly absurd.

The question of what constitutes “analysis or ideas” is a debatable one; most of the passages in question involve basic descriptions of court cases, not arguments about their meanings. But at the very least, the similarities in language are striking, and consistent with allegations that have surrounded Tribe for years.

– NR associate editor Robert VerBruggen runs the Phi Beta Cons blog.

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