Sunstein to Head OIRA:

The WaPo reports this morning that Cass Sunstein is going to be the OIRA Administrator. This is really terrific news and continues the remarkable tradition of the extraordinarily high talent level that has occupied that position over the past many years (Dudley, Graham, Katzen, etc.).

Given Sunstein's apparently close connections to Obama, this also suggests that President Obama anticipates a muscular role for OIRA in his administration. And the appointment of Susntein presumably also reflects commitment to cost-benefit analysis in regulation, which is exceedingly good news and may provide a brake on some more extravagant regulatory initiatives. Given Sunstein's long record of scholarship on many of these issues, it will be interesting to see how he translates his ideas into practice, especially CBA, behavioral law & economics, and discounting. For now though, the obvious point is congratulations to Cass and Obama both.

I am currently doing a moot court that involves admin law and cost-benefit analysis, and I have relied a great deal on Sunstein's book on the subject, The Cost-Benefit State. It is a great book, and Sunstein is a remarkably clear and efficient writer. Sunstein is a great choice for OIRA Administrator.
1.8.2009 8:26am
I like his perspective and intellectual firepower, but question whether he has the administrative ability to function well in the role.
1.8.2009 8:27am
Agree with DC2. When I think of Prof. Sunstein, "administration" does not come to mind. But he's both nice and intelligent, so I wish him the best.
1.8.2009 8:51am
This gentleman may be able to reassert OIRA authority assuming that he demands that OIRA operate within its charter to act as an independent group to check potential abuses of agency rulemaking, and also assuming that the new President does not emasculate the current Executive Order that defines OIRA's charter.

Some rulemaking of recent vintage in which OIRA has played a prominent role concerns initiatives by the USPTO that if enacted would impose significant financial burdens on patent applicants. They are an interesting study in the role OIRA plays in the rulemaking process.
1.8.2009 9:42am
Al Maviva:
It's not like EO 12866 lacks teeth; it's that OIRA has to rely on the agencies to implement it. OIRA and OMB generally make a good effort, but the overall executive branch approach to rulemaking is "don't stop me unless I'm forbidden to regulate," rather than, "would it be a good idea to try to regulate?"

Economic analysis and cost/benefits in proposed rulemakings, which Rob Portman tried to implement, is frequently laughable. Economic conjecturing ("imagine if we had a million widgets") is bad enough to begin with, without adding a layer of presidential management agendas, individual career goals, and Congressional micromanagement. I wish him Sunstein all the luck in the world, but he inherits the regulatory docket of the most heavily regulating administration in U.S. history, and agencies that are generally confident that they are capable of fixing everything, if only they could issue just one more regulation...
1.8.2009 9:54am
arbitraryaardvark (mail) (www):
OIRA = Office of Information and Regulatory Affairs.
1.8.2009 10:07am
one of many:
I dislike the headline ("Obama to Name Lawyer Friend To Regulatory Affairs Position"), we're not talking about some no-name who's primary qualification is that he knows Obama.
1.8.2009 10:26am
Dale Carpenter (mail):
Sunstein was my Con Law professor. He was a fantastic teacher, is a great scholar, and is a generous, intelligent, and sensible person. I wish him the vey best.
1.8.2009 10:51am
Ming the Merciless Siamese Cat (mail):
An appointment only a fellow law professor could love. A theoretical, academic, egg-head with no substantive administrative or management experience whatsoever.

Plus, taking ConLaw from Prof. Sunstein was like being taught by Rain Man.

Less "intellectual firepower" and more practical exprience please.
1.8.2009 11:56am
Sunstein Skeptic:
Does this position require Senate confirmation? If so, won't Sunstein have to answer, under oath, questions regarding the rumors that for years he's delegated both the research and drafting work on most of his publications to others, typically law students, and thus is typically merely the "editor" rather than the true "author" of what he puts his name to? In other words, that Sunstein's a notorious user of ghostwriters.

Such questions have particular relevance with Sunstein coming to D.C. from Harvard Law, which by all appearances officially condones its professors using student ghostwriters to draft up books for them -- 3 famous professors were caught doing so a few years ago, and none were punished for it: (Thus, the rumors about Sunstein's use of ghostwriters hardly would have been a barrier to Harvard Law hiring Sunstein; that Harvard recently made him a professor thus hardly suggests he's somehow clear of the past charges.)

Even if Sunstein's clean (and I hope he can state in simple language that he's never had people, other than listed co-authors, draft for him any part of the works on which his name appears as the author or, alternatively, show that only in a relative handful of situations has he had some drafting done for him), won't the Harvard Law ghostwriting scandal be an issue for Dean Elena Kagan in her confirmation hearings into whether she's fit to hold a top Justice position?

In particular, my recollection is that Charles Ogletree admitted to former Harvard president Derek Bok (who investigated on behalf of Dean Kagan) that he'd farmed out the writing of a book to law students, yet Dean Kagan didn't impose any punishment.

What was the problem for Dean Kagan? Did she conclude it wasn't politically correct to punish an African-American law professor for dishonest scholarly practices? Was she afraid that if she imposed punishment against such a prominent minority professor, she'd weaken if not destroy her chances for a future government appointment? What does such timidity in the face of political pressure say about how she'd conduct herself as Solicitor General? Would she, in that new position, continue to cave into the PC crowd to the degree needed to preserve her chances of a Supreme Court appointment? I trust someone in the Senate will look into such matters.
1.8.2009 11:59am
Does this position require Senate confirmation? If so, won't Sunstein have to answer, under oath, questions regarding the rumors that for years he's delegated both the research and drafting work on most of his publications to others, typically law students, and thus is typically merely the "editor" rather than the true "author" of what he puts his name to? In other words, that Sunstein's a notorious user of ghostwriters.

Only if somebody asks.
1.8.2009 12:09pm
Sunstein Skeptic:
Well, wasn't Sunstein already asked? Even though he's a close friend of Obama, my understanding is that to even be considered for this appointment, Sunstein had to fill out a very detailed questionnaire, w/ 63 questions. You can read it here:

It would appear to me that questions 62 &63 required Sunstein to flag the ghostwriting rumors (however unfair he might think it would be for anyone to ask him about this subject).

Also, if in fact Sunstein had some of his works drafted for him, so he wasn't the true "author," wouldn't questions 10 and 61 have required him to disclose his associations with ghostwriters, and state which of his works were drafted for him?

I don't think it would be a deal-killer if it turns out that Sunstein in fact relied on ghostwriters to produce some, or even most, of his stuff. The real problem would be if Sunstein said nothing at all about the ghostwriting issue on his questionnaire, especially because Richardson recently got canned in part for not having been sufficiently forthcoming about the pay-to-play issue during his vetting process.
1.8.2009 12:37pm
Steve P. (mail):
Yeah, and has anyone seen his birth certificate?
1.8.2009 12:38pm
UChi 97 (mail):
I had Sunstein for three classes at Chicago, including Ad Law, Enviro Law. While his politics (and Obama's) aren't mine, he's very clear headed about the effect and cost of regulations. He probably thinks it's worth paying more often than I, this is a great pick as regulations won't be stupid if he has something to do with it. Wrong. But not stupid.

I wonder how he'll be as an administrator. And I wonder if he can make his office in DC as awesomely messy as it was at Chicago.
1.8.2009 12:41pm
Sunstein Skeptic:
One more thing -- isn't Dean Kagan in trouble if she didn't flag the ghostwriting scandals as something people might raise, in response to questions 62 &63? She ought to know that this matter could easily blow up into an embarrassing situation. If she didn't mention it at all in her questionnaire then that would seem to reflect poorly on either her judgment or her candor.
1.8.2009 12:41pm
Sunstein Skeptic:
Steve P.,

Why would his birth certificate be relevant?

UChi 97,

Who cares how messy his office is? Didn't Obama admit he's not a tidy desk guy? Lots of people are productive without keeping their desks neat -- or maybe because they don't spend all their time keeping their desks neat.
1.8.2009 12:43pm
Thales (mail) (www):

Care to put a name behind your circulation of rumors, or the names of actual aggrieved accusers? This isn't exactly an innocuous, content-free blog comment, and it's a serious allegation. In any case, it's certainly not close to the pay to play corruption alleged of Richardson, Blagoevich and others.

On a less individualized rumor basis, shameful or not, such behavior as is alleged (unattributed co- or sole authorship by graduate students) is widespread in American universities.
1.8.2009 12:44pm
JP_ (mail):
Like UChi 97, I'm wondering about how is office will look. I'm also picturing him trying to walk right past White House security while walking his dog and reading a book.
1.8.2009 12:52pm
Sunstein Skeptic:

Unfortunately, I have to agree with your "widespread" comment. Based on the dozens of articles and blog posts listed on the "Harvard Clown School" blog (almost all of which I've read; the stuff is fascinating), it seems that professors' use of students to ghostwrite their books and articles is well accepted even at Harvard Law School -- which is why, unfortunately, all Harvard Law School professors are in effect PRESUMED to use student ghostwriters, unless the opposite is established.

Of course, this presumption is quite unfair to those "old schoolers" who, in fact, do not use student ghostwriters. But there's an easy remedy for anyone coming out of such a tainted environment who is innocent of involvement in such practices: such a person can state that he or she has never had others (besides co-authors) draft material published under his or her name, or else state that this is generally true, and then itemize whatever exceptions there are.

Thus, even though the majority, perhaps the vast majority, of Harvard Law School professors apparently use students to help draft their books and articles, if Sunstein doesn't have that practice, he can clear himself by simply saying so. I assume people would take him at his word about the matter.

Obviously, relying on professors to state whether or not they are among the majority who use ghostwriters is the most efficient way of resolving questions over particular professors' practices. How else would you propose resolving such matters? I didn't have a video camera on Sunstein 24/7 for the past two decades to see what he drafted and what he didn't draft. Are we supposed to write all his research assistants and quiz them on whether they did drafting? The easiest solution is for Sunstein himself to address whether or not he, too, has used ghostwriters -- and why, if he has used ghostwriters, he didn't disclose that fact on his questionnaire (if in fact he didn't disclose it).
1.8.2009 1:05pm
If you work for him, do you have to follow instructions given while he is crouched on his desk in a semi-fetal position, arm wrapped around his head, fingers scratching his scalp, while he sways gently back and forth? More importantly, if you walk out of a meeting (only for an hour or so) while he is doing that, will he even notice?

Nice guy, great (if often wrong) thinker, but putting him in charge of anyone is a disaster in the making.
1.8.2009 1:26pm
I don't see why this should come up in confirmation hearings. Does Sunstein have a blog? If so, and if he doesn't use ghostwriters, he should just do a blog post saying that, and any issue will go away -- he will have addressed it. If he doesn't have a blog, he should guest blog on Volokh or Balkinization or ACS or something like that.

If he has had drafting help on some things he's done, he should just say it, and likewise any issue will go away. Mark Tushnet did something like that a few years back, I think on Balkinization, so there's precedent for an air-clearing post like this.

I found it -- Tushnet's 9/26/04 post on Balkinization is here.
1.8.2009 1:36pm
Look, Anon1111, it's no fair pointing out Sunstein's odd/creepy personal characteristics.

Obama wants diversity in his Administration, and he's making sure his staff "looks like America." That's why he's hiring guys with Asperger's Syndrome (Larry Summers and Cass Sunstein) and girls with anger management issues (Elena Kagan). Throw in a few substance abusers and paranoid schizophrenics and it'll really look like America!
1.8.2009 1:40pm
Katl L (mail):
So, he really writes dozens of articles and books a year
1.8.2009 2:29pm
Thales (mail) (www):
Katl L: Why not? Richard Posner does.
1.8.2009 2:46pm
Big Posner Fan:
Richard Posner was both president of the Harvard Law Review and had the best grades in his class. Justice Brennan, for whom Posner clerked, said Posner was one of only 2 geniuses he'd ever met (the other being Justice Douglas, another amazingly fast writing machine, whatever his faults). Posner has publicly stated that he does all his own drafting, on everything.

None of these things is true of Sunstein. The two aren't even in the same ballpark.

In particular, Sunstein didn't even make Law Review at Harvard (I think he was on CR-CL). And unlike Posner, he hasn't publicly stated that he does all his own drafting. I wonder why.
1.8.2009 3:03pm
frankcross (mail):
I know for a fact that Sunstein does some of his own drafting. He may well have students work on other articles. But he surely doesn't just take their work, as ghostwriters, and print it, that would put his substantial brand at significant risk.

Don't laud the "old schoolers" Professors for many decades have been having students do research for their articles and do first drafts. I did this way back when I was a student. But they reviewed and edited those works, sometimes substantially. Would you have any evidence that Sunstein is not the author/editor of his works?
1.8.2009 3:20pm
Big Posner Fan:
Prof. Cross,

I googled to see what you've said on this subject in the past and found a 9/28/04 post attacking the Weekly Standard's article on Larry Tribe as a "partisan hack job." That article showed that Tribe had delegated much of the writing of a 1985 book to a 1st-year law student. You expressed the view that what Tribe did wasn't any big deal, though you did concede: "There is, I think, a problem of professors relying unduly on the writings of research assistants sometimes." You were quick to add, though, that you suspected the Tribe book was "one of the weaker instances of that problem."

That post, and your current one, shows that you hold legal scholars to what seems (to me at least) an astonishingly low standard: it's okay for a law professor to delegate the writing of much of a book to a law student -- even a 1st year law student -- as long as the professor "does some of his own drafting" and gives what the student drafted a good read and edit. Am I putting it fairly?

Do you know if there's anything in writing, in terms of rules governing the faculty and students, at Harvard or U. Texas (where you are), or elsewhere, stating that it's acceptable for professors to have students research and draft their scholarly work, without disclosure of that fact? My understanding is that it would be a serious ethical violation for a student to hire another student to write a paper on which academic credit is given.

I don't see how a professor could legitimately hire a student to draft a book or article on which academic credit is given the professor (i.e., to count toward tenure or, even post-tenure, to go on the resume). I don't think it would make any difference that the professor did careful editing of the draft, just as it would make no difference that a student who hired another student to do a draft of a paper did careful editing. Editing is not authorship, and for someone to claim "authorship" (at least sole authorship) of something he merely edited is fraud.

You claim that for decades at law schools professors have been having students research and draft their articles. Does anyone agree with that descriptive statement? Even if it's an accurate descriptive statement, does anyone agree that, normatively, it's okay for professors to follow this practice, even without disclosing in the book or article the people who did initial drafting, and what they drafted?

Prof. Cross, I noticed you graduated in 1980 from Harvard. That's nearly 3 decades ago. In making your "decades" statement, are you relying on your own experience as a Harvard student? That is, did you help draft parts of publications of one or more Harvard Law professors back then? If that's the basis of your statement, it would be helpful if you'd explicate. If you truly believe there's nothing wrong with professors having students draft their works for them, and if you participated in this practice as a student, then I assume you're quite identifying who you worked for who had this practice at Harvard in the late 70s.

Until you further clarify, my working assumption is that the stuff you drafted as a student was for Larry Tribe (perhaps one reason you attacked the Weekly Standard article on Tribe, out of understandable loyalty to a former professor). It's an open secret at Harvard that Tribe's had students ghostwrite most of his books and articles for the past three decades, including the first edition of his landmark treatise (though I can't say I have any admissible evidence as to that, or as to Sunstein, either), but I hardly think that means most professors did, or even now do, what Tribe has long done. Rather, it seems Tribe decided long ago to cut corners and delegate his scholarly work in order to work on politics and profitable litigation. I would be surprised if there were many other professors would have done what Tribe apparently has done for "decades."

I would hate the fact (if it is indeed a fact; it's been alleged over and over in blog posts all around the internet, and Tribe's never disputed it) that Larry Tribe's been using ghostwriters for three decades to morph into some consensus that "everyone's done it for decades," thus permanently defining deviancy down in the world of legal academia. It would be nice if some prominent legal academics who actually do draft their own works would say so on this blog, or elsewhere, to rebut the idea that legal academic standards have sunken as low as you suggest they've sunk.

Prof. Cross, though I disagree with you about the relevant scholarly standards, and though I sure hope you're wrong about your description of common scholarly practice, I'm glad someone has articulated the view you've set forth, so it can be considered; I'm certainly not making any sort of personal attack against you, especially given that all I know about you is based on some quick googling.
1.8.2009 4:14pm
frankcross: Other fields have no problem with this. Graduate students do a lot of the writing, and then they get co-authorship. I did this in my engineering PhD program, and nobody looked down on my supervisor's articles because they had co-authors. In fact, co-authorship with graduate students was expected. A prof with no co-authors either has no students (and is looked down upon) or is not giving his students credit where it's due (and is likely to be fired!). Also, as I got closer to finishing, our papers would have me as first author not my supervisor (now, of course, he already had tenure).

Can anyone explain (again) why legal scholarship is so different from the rest of the academy (peer review, single-authorship, etc.)?
1.8.2009 4:17pm
Big Posner Fan:
I don't know exactly how the sciences or humanities graduate programs operate, in terms of how people get jobs, but I assume that in both fields, the up-and-coming graduate students need to have numerous publications to advance, because the relevant market is typically university teaching or private research as to which publication history is viewed as important. In that situation, I assume, graduate assistants will demand co-authorship of papers they help draft, because they need the credit to advance further.

In the legal field, almost none of the students who work for professors will end up teaching; nearly all will end up at a private law firm, or as a government lawyer, or at a nonprofit, and in all those areas publication is of little importance. However, for all those areas, recommendations by law professors are highly valuable -- the more prominent the law professor, the more valuable the recommendation.

This, I think, creates a situation where the most prominent professors can pressure the best and brightest of the students to engage in unethical activity as the ticket to getting a job recommendation. They can delegate the actual research and writing of their books and articles to students without fearing that the students will demand co-authorship. Rather, the students will be satisfied with glowing recommendations which allow them to obtain the jobs of their choice. Sure, any particular student might be tempted to press for co-authorship, as in abstract it would be best to have both the recommendation and the co-author credit. But if the student gets the idea that the professor isn't eager to share authorship, he or she will most likely opt not to ruffle feathers, keep good relations with the professor, and pocket the present and perhaps future job recommendations. After all, if that student isn't willing to do the drafting, he or she can easily be canned, and the professor can find someone else happy to do the drafting, and pocket the recommendation.

The bottom line is that the law student doesn't greatly need co-authorship, and the law professor doesn't want to give it, so both participants in the unethical activity go along with the deal, and no one discloses it.

Thanks for your post prompting me to think this through. Although I now think I have a better understanding of why unethical professors pressure students to do their drafting for them, and students go along, I still think the vast majority of professors do not engage in such unethical actions, and do do their own work, relying on students only for actual research (e.g., collect and summarize materials, gather and check citations, etc., and not actual drafting of the publication. High-profile and supposedly "prolific" law professors such as Tribe and (apparently) Sunstein, who employ a cadre of ghostwriters to draft up their publications, seems to be an exception to the traditional standard for scholarly behavior, which I think still hold. At least I hope so.
1.8.2009 4:34pm
BPF: It seems to me that article authorship ought to be valuable to future employers of law students, particularly judges and appellate firms, since those new lawyers will be doing a considerable amount of writing in their jobs. Furthermore, it is precisely these clerks and new appellate associates that will be most likely to be research associates while in school, so it would be primarily to their benefit to have this info on their CV/resume, especially considering that writing samples are often requested. I've known some students to go ask the judge they interned with during their 2L summer if they could use drafts of opinions they worked on as a writing sample (this has even been debated on this very blog). So for students that don't work for a judge, but instead work for a prof, being able to present an article with their name on it as co-author should be quite valuable.

I do think that you're right that the majority of law students don't need a co-authorship for their career prospects, though, and so the recommendation mechanism prevails. Also, there's a tendency in the legal academy to see profs as big minds that generate Big Ideas (TM) all on their own. I think that this is an situation that's mostly been outgrown (in some senses) in other parts of the academy.
1.8.2009 4:54pm
Big Posner Fan:
I guess the law schools could quickly outgrow this situation by amending their existing rules on academic honesty. Typically the rules say it's dishonest, and plagiarism, for a student to accept drafting help from anyone else on any paper for which academic credit is given (as the ghostwriter counts as a "source" from which the paper is copied without attribution). Serious punishment, including expulsion, can follow from a violation.

Perhaps the rule should be changed: (1) to bar any student from providing drafting help to any professor unless co-authorship is given; and (2) to bar any professor from accepting any drafting help from anyone unless co-authorship is given (with appropriate penalties, including revocation of tenure, for a violation). With such rules on the books, I doubt either students or professors would be willing to risk co-writing on a project without co-authorship. The end result would be good for the students who are talented and hardworking enough to be co-authors, and good for scholars like Posner who are talented and hardworking enough to do all their own drafting. The end result would not be as good for other professors who can't produce good work without co-authors, but so what? Under this system, all the people we care about doing well would do well.

Such explicit rules would, in my view, merely restate the traditional ethical standards which I believe still are followed by the vast majority of professors. Such rule changes ought to be proposed in law schools nationwide. If in fact a significant portion of professors want to be able to delegate their research and writing to law students, they can seek to retain that option by speaking up at the appropriate time and opposing the proposed rule. If there's no substantial open opposition to such a proposed rule, why shouldn't it be enacted?
1.8.2009 5:13pm
Big Posner Fan,

As a student who's conducted a great deal of research for law professors and written memos and other items that I'm sure will be incorporated into larger works, I have to ask: what's your point? I was glad to have the money and the job description on my resume, the professor was (and still is, presumably) glad to have good help. Academic credit would be nice, but I'd be much better at doing a piece based on my own interests.
1.8.2009 5:18pm
Big Posner Fan:
The point is that those hopefully few professors who are too lazy, or too interested in extra-law-school activities, to write their own scholarly works but who don't want to admit they use uncredited ghostwriters will, if not constrained by rules:

1. Find eager and willing students such as yourself who will do the hard work of writing;

2. They won't disclose, even in a footnote, that much of the work was drafted by students, thus inflicting a form of fraud on readers (as Judge Posner has ably put it); and

3. By engaging in this unethical enterprise, both the professors and students such as yourself will be harming the students who are more ethical than you who are not willing to participate in such a scholarly fraud. That's my point about how people like Tribe and, it appears, the professors you've done drafting for (care to identify them?), if not opposed end up defining deviancy down, in the direction Prof. Cross seems to suggest things are moving.

Only by focusing on your individual interest in getting a leg up, and your professors' individual interest in getting publications out with as little work as possible, and by ignoring the adverse impact on people who are more deserving of better outcomes (honest and hardworking professors who do their own work and whose accomplishments are tainted by the impression created by their colleagues that no one's doing their own work, and ethical students who won't take part in scholarly fraud), are you able to try to justify your actions. I suggest your focus is far too narrow.
1.8.2009 6:00pm
Since all of the Conspirators have waded in using thier real names and praised Sunstine and only anon. posters have made ethics claims, based on no facts, its clear these anon. posters 1) don't know what ethics are; and 2) thier claims are bogus.
1.8.2009 6:36pm
frankcross (mail):
Well, I finally made it back. My comments are related to, but not exclusively, work for Tribe though mostly by others (I did more litigation stuff). But to my knowledge he always did a lot of editing work, and the authorship properly belonged to him. It was his work, not plagiarism. He did more work than that of co-authors included on social scientific articles.

But the other disciplines credit others as co-authors, which law professors rarely do. The reason, I'm sure, is that the co-authors in the other disciplines are themselves academics (or budding academics) who need the credit. Most law students don't really care. Certainly a law student could demand credit as a condition of doing the work, but that's not important to them.

But Sunstein is a strange place to make this case. He does a great deal of work personally. And he doesn't need more articles for academic credit. His concern is surely more with the quality than more quantity of articles, which ensures his great input into content. You would find more severe problems in those who publish much less often.

And I'm a bigger Posner fan than you are!!!! And Posner's something of a fan of Sunstein.
1.8.2009 8:02pm
sgs (mail):
It seems to me the key issue is 2. (from Big Posner Fan) - does non-disclosure inflict a form of fraud on readers? Fraud is probably putting it unnecessarily highly - so we should simply ask whether not crediting involves a form of misrepresentation.

This turns on what someone represents when they put their name on their work. Broadly, the two main possibilities seem to be:

(a) I wrote all of the words contained herein (except attributed quotes);
(b) This represents my original ideas (except where indicated) and I have read, edited (where necessary) and approve and adopt the contents in its entirety.

It seems to me likely that differences of opinion about the justifiability of actions of this kind can be traced to differences of view as to which of the above representations is made. Those professors who do not credit (or "undercredit" -- using that term neutrally) the assistance of student authors are taking the view that this is not necessary because the ideas are the professors' own and they adopt responsibility for the text -- on this view, the issue of co-authorship is a matter between the professor and the student. Support for the understanding that this is the view being taken can be found in the fact that it would ordinarily be expected that original ideas of others contained in a publication would be attributed as such -- there would be little doubt about the impropriety of not doing so. I take from Frank Cross' comments that the professors' that he prepared first drafts for always 'reviewed/edited those works' that this view represents his understanding of the position -- thus, on this view, the only issue is whether the professor has not reviewed/edited the work and is passing off someone else's work as his own when he is not in a position to adopt it as his own.

The key question is whether by putting their name on the text someone should in fact be taken to represent that the words are theirs -- this turns on whether it might fairly be understood that the position is otherwise. Clearly, there are some circumstances where there are good reasons why the words must be an authors' own, notwithstanding any agreement between the "true author" and the "named author" -- for example, if the reader is to assess the work on the basis that it will lead to a qualification for the writer, then the reader needs to be able to form the view that it does indeed demonstrate the writers' qualifications -- to qualify for a law degree one needs to do more than demonstrate the capacity of ones ideas -- what is also relevant is demonstrate some degree of writing capacity (how much, and what the balance should be between ideas and lucidity of writing is not relevant for present purposes) -- so strict rules against handing up work written by persons other than you are appropriate, even if the work contains your ideas.

However, it is not clear that similar reasons apply where the purpose of the work is not assessment for the purposes of determining to confer a qualification -- whether a law professor is one who gets ahead by being a prodigious "idea" machine with a strong capacity to delegate the writing task, or is one produces work of a conspicuously high writing standard (since not written by first year law students) seems to be a matter between the professor and his employer. If it is the case that there is no reason to take a law professor as representing anything more than what is set out in (b) above -- it would not be wrong for them to have followed either course.

If the above reasoning is correct, an appropriate answer for Sunstein to any confirmation question on this matter would seem to be -- "what is relevant is that I take responsibility for and stand by my written work, which represents my ideas". Of course, the inference may be open that he does not, like Posner, write all of his own work, but the above reasoning would seem to indicate this is not improper, although any costs associated with disclosure of this fact should have been weighed in determining how to advance his career.
1.8.2009 9:00pm

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