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March 07, 2005

Academic Misconduct: Laurence Tribe and his Green Bag History

Romesh Ponnuru wrote a Feb. 25 piece for National Review detailing how Professor Laurence Tribe of Harvard Law School, already caught an one instance of plagiarism, seems to have manufactured a personal story about the Supreme Court. In essence, Ponnuru says that in an article in the journal Green Bag Tribe says that he pushed a daring and successful 9th Amendment argument onto the Supreme Court in his first oral argument in 1980 in Richmond Newspapers, 448 U.S. 555 (1980) , a case about whether courts had to let reporters in to observe trials when the defendant had waived his right to a public trial. Rather, Ponnuru says that Tribe made other arguments, but the 9th Amendment argument of an amicus brief was what drove the Supreme Court's ruling.

A critic of Ponnuru, Scott Goldstein, has a new website set up on the matter at http://tribeponnuru.blogspot.com/. At VC, Juan Non-Volokh on March 4 said,

For what it's worth, I thought the initial Ponnuru piece on Tribe cam up a bit short. Even accepting everything at face value, it hardly seemed like scholarly misconduct. At most it demonstrated that that Tribe engaged in a bit of puffery, so it hardly seemed worth all the space in National Review.

Given the generally poor reputation of Harvard faculty when it comes to plagiarism, I thought I'd look into it. The charges seemed serious enough to me-- in effect, lying about the historical record-- but of course sometimes accusations of lying aren't true. One needs to look at the Green Bag article and Tribe's Supreme Court briefs, and, if one is to be complete (which I wasn't), the transcript of the oral argument. This is hard for people who don't have Lexis, so I've excerpted the important parts of the document below.

The first question is whether it mattered to the Green Bag article that Tribe says he argued the 9th Amendment and won. i think it does. The article essentially says, "My father was dying during my first Supreme Court oral argument, but I withstood the stress and won using an innovative 9th Amendment argument." The two central points are that Tribe won despite the personal stress and that he won using a daring 9th Amendment argument.

The second question is whether Tribe actually did rely on a 9th Amendment argument. Here, Ponnuru is correct, at least as far as the briefs are concerned (I didn't look at the oral argument transcript): Tribe does make that argument, but puts 90%+ of his weight on other arguments, throwing the 9th Amendment argument in rather carelessly towards the end. Instead, most of his brief is devoted to two other arguments: a 1st Amendment argument and a 6th Amendment argument.

Some objective evidence might help. The Ninth Amendment is mentioned 10 times in the Green Bag article. The word "father" is mentioned 24 times. The First Amendment is mentioned 3 times, all 3 times only to say that the First Amendment argument was very weak in this case. The Sixth Amendment is mentioned twice, in the introduction to say that the defendant had waived his rights under that amendment.

In Tribe's Supreme Court brief-- his written argument for the Court-- the Ninth Amendment is mentioned only twice--once as "Ninth", once as a cite to "IX". The First Amendment, in contrast, is mentioned 53 times (this requires a careful search, since "first" is used in other ways too). The Third Amendment is mentioned 4 times. The Fourth Amendment is mentioned 4 times. The Fifth Amendment is mentioned twice. The Sixth Amendment is mentioned 52 times. The Fourteenth Amendment is mentioned 9 times.

In terms of amount of space, the 9th Amendment argument section which I quote below is 4558 characters out of 142,953 in the entire brief-- about 3.2% (noting that not the entire section IID is 9th Amendment-- only its first third or so, so the "seven pages" claimed by Goldstein is not accurate). Double or triple that if you like, since much of the brief is made up of introduction, remedies, and suchlike, but you won't get the 9th Amendment argument to be prominent.

Thus, I think Juan Non-Volokh has it wrong when he says Goldstein has the best of it. Not at all!

Does this matter? I think so. Tribe's piece is not what would count as research for a tenure review, but it is published in a scholarly journal as a historical account of relevance to other legal scholars and to increase their esteem for Tribe's legal talents. If they rely on it, they will get history wrong and they will overestimate Tribe.

Below I have quotations from the Tribe article and brief that pertain to the 9th Amendment argument.

Well, in a way. But there was one problem, at least as I saw the case: To make an argument based on the First Amendment freedoms of speech and press, one classically needed to have a willing speaker: the right to observe and hear is just the flip side of a right to broadcast or speak, and in this case nobody in the courtroom wanted to speak to mere spectators -- not to the Richmond Newspapers, and certainly not to the victim's family. So the First Amendment didn't completely suffice -- unless one treated it as a very broad structural guarantee of access to information in an open society, a guarantee not enumerated anywhere in the Bill of Rights, but one reinforced by the Ninth Amendment's mandate that the Constitution's "enumeration ... of certain rights, shall not be construed to deny or disparage others retained by the people."

But the Ninth Amendment, I learned as I briefed Richmond Newspapers and as I found myself being lobbied hard by the pillars of the media bar, was barely to be mentioned in polite society, much less was it ready for prime time.

Who was I, an utter novice at Supreme Court advocacy, to buck the conventional wisdom on something so basic? Well, I was a lawyer who'd taken a case because he believed in it, who'd been teaching and would teach generations more of law students about the kinds of questions the case raised, who'd gone on record a couple of years earlier in a treatise, American Constitutional Law (1st ed. Foundation Press, N.Y. 1978) (now in its third edition as of 2000), on most of the issues the case touched, and who cared a lot more about keeping faith with what he'd feel bound to write and teach in years to come, and with how he thought the Court should be approached, than with what the Pooh-Bahs of the establishment thought of him. That's who I was. And am. So the Ninth Amendment argument stayed in. And, I'm happy to report, in the end it hit its target.

As Justice Stevens was to write in his concurring opinion, "never before had [the Court] squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever." Where was that protection to be found in the Constitution's text? Nowhere, exactly, but the plurality opinion of Chief Justice Burger made a point of recalling how James Madison -- responding to widely voiced concerns at the time of the Founding that adding any finite list of rights to the Constitution to assuage the fears of some about potentially excessive government power might perversely backfire, carrying a negative implication about rights not mentioned -- had spearheaded a move that "culminated in the [*291] Ninth Amendment," which was to operate as a "constitutional 'saving clause,' ... to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined." The right recognized in Richmond Newspapers, although it was later described simply as a First Amendment right (and might thereby be said to have emerged with free speech wings that had shed the Ninth Amendment chrysalis from which it sprang), became the first of only two rights ever grounded by a Supreme Court majority or plurality in an analysis that spelled out its debt to the Ninth Amendment as a rule about how to construe the Constitution. The other such right was that of reproductive choice, whose reaffirmance in a 1992 plurality opinion, Planned Parenthood of Pennsylvania v. Casey, 505 U.S. 833 (1992), was also expressly linked to the Ninth Amendment as a rule of construction.

. . .

I know that urgent phone calls imploring me, above all else, to forget that "crazy Ninth Amendment argument," didn't even scratch the surface of what I was feeling. Literally all I recall [*294] about writing the reply brief -- which ended (I've just reread it) with a call upon the Court to vindicate "a tradition ... demonstrably central to the public awareness and institutional accountability that define our form of government" -- is that I refused to use that brief as a vehicle for backing away from the Ninth Amendment,...

. . .

Reflecting now on my resolute commitment to arguing the case in Ninth Amendment terms -- and thus in terms of the Constitution's "tacit postulates," which my opening brief had reminded then-Justice Rehnquist and Chief Justice Burger that they had only recently described as no less "engrained in the fabric of the document [than] its express provisions," Nevada v. Hall, 440 U.S. 410, 433 (1979) (dissenting opinion) -- I think my grief may have permitted me to see a bit more clearly through the fog of superficial arguments and objections and may have steeled me against the kinds of eleventh-hour distractions and importunings that co-counsel, meaning to be helpful, are prone to inject as a Supreme Court argument nears.

Here's the entire mention of the 9th Amendment in the reply brief that Tribe says he re-read in writing his Green Bag article:

Nor have appellees addressed any of the reasons offered by appellants for concluding that the First, Ninth, and Fourteenth Amendments, in conjunction with the Sixth, have long secured a right to attend and observe criminal trials. Id. at 27-43, 51-59.

So much for "I refused to use that brief as a vehicle for backing away from the Ninth Amendment,..."

From Tribe's original brief we this summary of his entire argument. This, his own summary, never mentions the 9th Amendment by name, but the 9th Amendment is part of the argument of the last paragraph, which I've boldfaced.

Summary of Argument

I.

For centuries, it has been an axiom of every just society that the people may enter freely into its halls of justice. The right to attend and observe criminal trials was taken for granted by our Constitution's Framers as well. No single provision of the Constitution expressly and unambiguously confers that right, but each of several provisions plainly implies it, and its existence is demonstrably entailed by those provisions' interrelated meaning and structure.

A guarantee that criminal trials will be open to orderly public attendance and observation is, first of all, implicit in the First Amendment. That the freedoms of speech and press include the freedom to observe and learn, and not only the freedom to talk and publish, is beyond doubt. Self-government presupposes knowledge; and knowledge of the administration of justice lies at the core of any society dedicated to the rule of law.

Although the First Amendment does not unseal government records or unlock private files, its central meaning requires that people remain free to seek understanding and information in those forums that have traditionally been open to the public, at least when their function depends vitally upon access by the public. This nation's courthouses are the clearest illustration: open from the beginning, and unable, if sealed from view, to fulfill their mission of displaying as well as doing justice.

The case for a First Amendment right of access to criminal trials is uniquely strong, for such trials are public by constitutional command. Even if the Sixth Amendment were thought to confer only on the accused the right to demand a public trial, the very fact that the accused has that right automatically removes criminal trials from the realm of proceedings the state is free unilaterally to treat as wholly internal and confidential, and from the realm of places that the state is empowered unilaterally to cordon off. In this special context, it matters not that the freedoms of speech and press are being invoked against the wishes of the trial's participants: since it is settled that the accused has no right to demand a secret trial, government's action making it secret is simply a form of censorship.

Entirely apart from the First Amendment, the Sixth confers standing on members of the public to invoke the public trial guarantee. No one doubts that the constitutional norm of open trials does more than protect defendants from oppression. It also protects the public from prosecutorial and judicial malfeasance and ineptitude. Because the public's interest in enforcing the Sixth Amendment's public trial clause is independent of, and often conflicts with, the perceived self-interest of the participants in a trial, vindicating that public interest requires recognizing standing for members of the public who have been denied access. Doing so not only serves the purposes of the Sixth Amendment; it also fully meets this Court's constitutional and prudential tests for determining who may assert a claim under the Constitution.

Nor is the norm of open trials one that could better be vindicated politically than judicially. Like the right to vote or the right to speak, the right to watch silently the operation of our courts must be held securely beyond the reach of pluralist interest-group compromise.

Although dicta in the majority opinion in Gannett point in a different direction, nothing this Court has ever held -- not even in Gannett -- either requires or implies that the public trial clause is unavailable to persons ejected from a criminal trial at the behest of its participants. Gannett, as the majority noted and the Chief Justice stressed, involved only pre trial suppression hearings. To find no public right of access to such proceedings under the Sixth Amendment says nothing about access to trials as such, since both in history and in purpose suppression hearings and criminal trials are poles apart. The aim of the first is to keep inadmissible information from the jury; of the second, to present admissible information to the jury -- and to the community that the jury represents. It is only in the context of the pretrial suppression hearing that openness and fairness are in tension. At trial, where a battery of devices may be deployed to keep any improper evidence from the jury, the two norms converge -- even though the personal interests of the accused, the accuser, or the judge may at times be advanced by concealment.

Thus the Sixth Amendment, like the First, guarantees that criminal trials will be open to public attendance and observation. But even if the inference from these two texts seemed problematic, a judicially enforceable norm of open trials would follow from the role such trials play in the Anglo-American regime of ordered liberty and in our Nation's history and traditions. Like the right to vote, which the Constitution does not expressly mention, the right to attend criminal trials is fundamental because it preserves all other rights. And, like the right to demand proof of guilt beyond reasonable doubt, the right to observe criminal trials is constitutionally protected because it is indispensable to public confidence in the legal system. Plainly, the time-honored right to observe criminal prosecutions in progress was among the rights "retained by the people" when the Constitution was adopted.

The bulk of the argument has two parts, one based on the 1st Amendment and one based on the 6th, both rather weak. The last section of Section II of the brief, the section with the constitutional arguments, makes the 9th Amendment argument, crowded in one section with two other arguments. The 9th Amendment starts the section, is followed by a 14th Amendment argument, and that is followed by an argument that the rest of the Constitution, as a whole, requires a right to observe trials. Here is the 9th Amendment part:

D. Even if Not Otherwise Enumerated, the Right Is Implicit in Ordered Liberty and Is Among the Rights or Privileges "Retained by the People."

Even if this Court should conclude that the right of members of the public to be present as observers at criminal trials finds insufficiently specific "enumeration in the Constitution," that fact alone could "not be construed to deny or disparage" the existence of such a right, as one "retained by the people." U.S. Const., Amend. IX.

On the contrary, a Ninth and Fourteenth Amendment right, privilege, or immunity of access to criminal trials would follow directly, even without more specific textual enumeration, from the central role of such a right in the "Anglo- American regime of ordered liberty," Duncan v. Louisiana, 391 U.S. 145, 149-50 n.14 (1968) -- a role at least informed, even if not unambiguously guaranteed, by the First and Sixth Amendments, and one undeniably revealed in "this Nation's history and tradition." Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (footnote omitted). Cf. Duncan v. Louisiana, supra, 391 U.S. at 148-149 & n.14; Johnson v. Louisiana, 406 U.S. 356, 372 n.9 (1972) (Powell, J., concurring). n46 Just as the expressive "use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens," Hague v. C.I.O., 307 U.S. 496, 515 (1939) (opinion of Roberts, J., joined by Black, J.), so, too, the observational use of the Nation's halls of justice has, from time immemorial, been among those same privileges, immunities, rights, and liberties. See, e.g., 3 W. Blackstone, Commentaries n* 373 (6th ed. 1681); 2 E. Coke, Institutes of the Laws of Englandn* 103 (1765-1769).

n46 To hold that due process of law must be open process of law would entail no elevation of a substantive zone of personal autonomy into a newly-recognized right against the majority, cf. Moore v. City of East Cleveland, supra, 431 U.S. at 537 (Stewart, J., joined by Rehnquist, J., dissenting); id. at 549 (White, J., dissenting); it would require little beyond the quintessentially procedural recognition that accessibility to the public is a characteristic "inhering in the institutional process by which justice is administered." Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J., concurring). For a public trial implies nothing about the permissible content of a state's criminal laws or sanctions; it "implies only that the court must be open to those who wish to come, sit in the available seats, conduct themselves with decorum, and observe the trial process." Id. at 589.

Indeed, the right of public access to criminal trials seems an indispensable precondition of the system of government established by the Constitution. No less than the unenumerated right to vote in state elections, Harper v. Virginia Board of Elections, 383 U.S. 663, 665 (1966), the right of access to criminal trials must be "regarded as a fundamental political right, because preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (voting). No less than the unenumerated right to proof beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970), the right of access to criminal trials has won "virtually unanimous adherence" throughout our history, reflecting "a profound judgment about the way in which law should be enforced and justice administered." Id. at 361-62, quoting Duncan v. Louisiana, supra, 391 U.S. at 155. Indeed, much like the reasonable doubt requirement, our system of open trials has proven itself "indispensable to. . . the respect and confidence of the community in applications of the criminal law." In re Winship, supra, 397 U.S. at 364. n47

n47 Where the state forbids any extrajudicial resolution of a particular dispute, this Court has held that only the litigant's unimpeded access to court can make the state's "monopoly over techniques for binding conflict resolution. . . acceptable under our scheme of things." Boddie v. Connecticut, 401 U.S. 371, 375 (1971) (indigent divorce plaintiff entitled by the due process to waiver of court costs). So too, the state's monopoly, through the criminal law, over the legitimate use of force, see Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 346-47 (1827) (Marshall C.J., joined by Duvall and Story, JJ., dissenting), is acceptable only because all have access to criminal trial courts. For the victims of violent crimes, for example, the legitimacy of insisting that official prosecution replace private vengeance is ultimately linked to the victim's ability to enter the courthouse to see justice done.

All in all, it looks like Tribe is taking advantage of 20-20 hindsight, even though he has the briefs available to help out his memory and apparently even looked at them.

Posted by erasmuse at March 7, 2005 02:08 PM

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Harvard law professor Laurence Tribe has written this response to Ramesh Ponnuru's article charging Tribe with "falsifying as fact what was,...

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Posted by: Chris at March 14, 2005 05:08 PM