Alan Dershowitz

I would guess that most law professors research and write this way. Maybe they try to be fair-minded, but one doesn’t envision Ruth Ginsberg saying, “Wow, reviewing the legislative debate has convinced me that the legislature really had a rational basis for treating men and women differently in this statute,” or Eugene Volokh saying, “Wow, reviewing these 500 Massachusetts cases from the 1790s shows that judges back then really didn’t think of bearing arms as an individual activity,” or Catharine MacKinnon saying, “Wow, my meta-analysis of the psych literature shows that consuming pornography really has very little influence on people’s attitudes towards women.”

Practising lawyers often write this way, and generally there’s nothing wrong with it. If they know the legal lay of the land within their own specialties, they are likely to have a sense of what the law is, or would have to be to fit with what else they know, without having at hand the actual supporting authority. (It actually makes for better-written briefs to draft an actual argument, in your own words, and filling in and integrating the supporting authorities later.) Issues of integrity come in when you find out, as often happens, that what you thought you knew wasn’t so, and others have pointed out what that requires.
But I would think that legal academics, just by virtue of the nature of their jobs and the differing demands on their time, probably ought to have more supporting authority at their fingertips than even relatively learned practitioners.

Forgive me for not being all that interested in (or knowlegeable about) US academia. But this bit I did think was fascinating:

“Fryer is a media star: He has appeared on CNN and been written about in the New York Times, Esquire, and this issue of 02138 (see page 34). Fryer’s group, the American Inequality Lab, works on a half-dozen or more major research areas at a time. To do so, Fryer now employs seven full-time “project managers,” mostly recent college alums, and works with dozens of others. The students, generally recent college graduates like David Toniatti, each manage a research project, from designing the methodology to collecting the data and running the numbers. Fryer writes the final papers, for which he is accorded primary authorship. “It’s him casting a vision, us working through the details, and him correcting it,” Toniatti says. “Everyone can run the regression; it’s really the idea that counts.””

The way this piece reads this is behaviour on a level as awful as what Dershowitz is doing. But this is what I thought professors were supposed to be doing.

“Oooh, this is interesting! Why don’t you go and have a look at that and together we might be able to make something of your results”.

Or have I (again) completely misunderstood some vital distinction within academia?

(BTW, the current English English phrase for what Dershowitz is said to be doing is policy based evidence making and I’m agin’ it.)

I wonder whether Dershowitz’s researchers should be considered to be individually complicit in torture in the same way that CIA agents who are just following orders are.

As a footnote to Henry, one of the things you are not supposed to do as a litigator, for the reasons Henry gives, is to state or imply that you personally are convinced of the merits of the case you are arguing.

I was once in mediation in a case where I and another lawyer were representing an individual who was claiming to have been mistreated by his colleagues in an organization. The mediator came out of a huddle with the defendants, took me and my co-counsel aside and said, “You need to understand that the problem here is that the other side can’t stand your client.” (They were all being very civil to one another in public.) We immediately said, more or less in chorus, “Of course we understand — we can’t stand him either.” Lay people can have trouble understanding the professional pride involved in not letting a detail like that make a difference to your work.

@ 11: Except for his positions on Israel, Alan Dershowitz is generally identified with the left.

And I would add, that Alan Dershowitz fits right in with the left in Cambridge, or on the Upper West Side, which exists in a rather strange alternate universe in which support for Israel is part of a leftist worldview. The existence and positions of Pat Buchanan or James Baker are a major part of this worldview, proving that the opponents of Israel are conservative Republicans. The existence and positions of people like Henry Farrell are simply ignored.

13: I think He posts in the Wonkette comments sometimes.

With regard to whether you have to cite contrary authorities, I think that depends a lot on the area of law you’re talking about. In my practice (Canadian immigration/refugee) much of what I do is before administrative tribunals, and so caselaw is rarely cited because many decision-makers are free to disregard decisions from their level of the process, and are only bound by caselaw decided in Federal Court or the Supreme Court of Canada. A great deal turns on the facts and evidence that is led, and this is not constrained by the normal rules of evidence.

When actually in court, I would only cite cases where [1] the facts are identical and the outcome was favourable, and [2] cases where a legal test was developed or applied in a relevant way (whether it went for or against the appellant). Unlike civil litigation, I’m never up against a non-state party, and in court I’m only ever appealing decisions so leading evidence or testimony are rarely part of the proceeding.

Incidentally, re roac’s comment above, I chose immigration/refugee because it’s one of the few areas where I can genuinely get behind almost all of my clients. I found my forays into criminal and civil litigation unrewarding because I found myself unmotivated to advocate for those clients.

Matt – We have similar requirements in the provincial rules of conduct (which are binding on our conduct) and federal canon (which is not). The Immigration and Refugee Board will hear caselaw if necessary, but the law itself isn’t especially complex (immigration and citizenship are governed by a single statute each) and most cases will turn on things like documentary evidence and credibility. Importantly, refugee cases are not reported unless they’re appealed, so it’s not really possible to be able to cite similar-fact situations where they were decided favourably.

At Federal Court, where you’re usually appealing a decision by the Board or a government Ministry by way of Judicial Review, all normal common-law rules of appellate advocacy apply. However, there is a standard Book of Authorities that everyone cites. You can cite other cases, but much of the important stuff is in the standard book. The law isn’t really that complex (except in a few of the rarely-adjudicated sections of the legislation).

This is quite different from civil litigation or even criminal law, where there are innumerable cases dealing with any number of factual variations and zillions of judges all deciding differently. I imagine the opportunity to — intentionally or otherwise — lead the court astray regarding the law must be much greater in those areas.

I wonder if a practitioner from a European non-common law jurisdiction might have even more different experiences.

I wonder whether Dershowitz’s researchers should be considered to be individually complicit in torture in the same way that CIA agents who are just following orders are.

No.

Oh, also. Do you beat your wife? Just askin’!

‘Several of his researchers say … On several occasions where the research has suggested opposite conclusions, his students say, … says one student who has firsthand experience … Other students point … ‘

Unnamed sources, innuendo, and tendentiousness. I wonder why this magazine folded. Mind you, The Daily Mail is still going so it can be hard to generalise about this sort of thing.

“…it happens in medical schools, as well, though it is slightly harder to get away with”

From casual reading (meaning I’m too busy/lazy to look up the cites), it’s possibly worst of all academic fields. IIRC, it was revealed that the majority of psychiatrists who worked on the latest DSM section on (depression?) were in the pay of pharmaceutical companies. The New England Journal of Medicine finally declared that they wouldn’t publish the results of any clinical trial not registered with them ahead of time, due to the widespread practice of running multiple trials, and only reporting favorable results. It’s normal practice for pharmaceutical companies to write contracts with researchers which give the company control over the data, so that they can control unfavorable results, and so that multi-center trials are conducted so that the researchers in one center don’t know what’s going on in another center.

My guess would be that academic fields could be ranked by the amount of money at stake in the short term (i.e., a decade), and that that ranking would very accurately predict the amount of corruption.

@25 et al.: Politically committed scholarship is hardly unique to the law faculty: try the women’s studies department, for example. More generally, even in the hard sciences, much research consists of looking for an expected answer to fulfill one’s preconceptions. For example, one sets up an experiment with a half-silvered glass to detect the “ether wind” with the confident expectation of finding said wind. Now, obviously, scholarly integrity dictates that one report the failure to find the wind, but not that one conduct the experiment with no expectation as to the result.

Finding no ether wind, the scientist formulates an alternative hypothesis. Similarly, I presume that, on the unusual occasions when Alan Dershowitz’s research assistants report that there is no case law (or whatever) support for his argument, he revises his analysis. That is certainly what would happen in a law firm if the associates reported that a proposed analysis in a current litigation had no support: we would revise our argument. (Conceivably, we would advise the client to increase its settlement offer.)

There is nothing wrong when a lawyer who is advocating for a client does this but it is problematic when done by a scholor or judge. On a side note, I beleive this is exactly how Scalia and Roberts go about conjuring up their “original intent of the founders” reasonings.

Incidentally, based on my poll of Harvard LS graduates (sample size: n=1), the students despise most of the superstar professors, specifically including Dershowitz, as self-aggrandizing jackasses with no interest in participating in the actual process of education.

When US News a few years back did a survey of student satisfaction at US law schools, Harvard came out very, very close to rock bottom. My sample says these phenomena are not without causal connection.

The students, generally recent college graduates like David Toniatti, each manage a research project, from designing the methodology to collecting the data and running the numbers. Fryer writes the final papers, for which he is accorded primary authorship.

If the student really designed and managed the whole research project, then he/she should also be writing the paper and be the primary author, with Frye as a coauthor if and only if he actually contributed to it. From the quote, it isn’t clear whether the students doing the work are graduate students working towards a dissertation, or just hired assistants. The context suggests the latter and if that is the case, my question would be why Frye chooses so. In my understanding this kind of work ought to be done by graduate assistants who take ownership of their work, while benefiting from the professor’s experience and advice. The reason may be that hired assistants are easier to control by the professor and results easier to shape in the way he wishes. I have no idea whether this is true in that case but I think it should be a concern.

Here’s another disconcerting quote from the article:

Yet if the undergraduates doing this research attempted the same outsourcing of written work in their term papers, they’d face disciplinary proceedings, and several student researchers told me they felt uneasy about this cognitive dissonance between expectations for their own work and that of their professors.
Indeed.

As a sort of coda to Chris’s post of a couple of days ago, 02138 magazine ran an article a few years ago on how various well known Harvard professors used research assistants.

02138 magazine ran their article (a few years ago) as a sort of coda to Chris’ post (of a couple of days ago)? That was pretty clever of them.

In my experience, a “project manager” is in charge of a number of other people who do the actual work, so it would seem there are other questions also raised by the article.

“Designing the methodology” struck me as unusual at first but could describe a pretty broad range of activities.