Surprise:

I’ve gotten a bunch of messages from people who say they’re surprised that we haven’t posted anything about the Laurence Tribe copying controversy (see here and here).

Here’s a tip: Never be surprised when people don’t invest a good deal of time and effort into stuff that they aren’t really required to do. Actually, my tentative sense is that while the 19-word literal copying by Tribe was wrong — and that he was right to apologize for it as soon as the charge was made — the paraphrasing of the other material was probably not wrong. (I can’t speak, of course, for my cobloggers on this.)

In a book aimed at a mass market audience, which doesn’t have footnotes or endnotes (and publishers, I’m told, often dislike having footnotes and endnotes in such books, since they make the book seem more daunting and add pages), it’s legitimate to rely on facts reported by others without having to prefix each sentence with “As Professor X said, Y got 100,000 votes more than Z, but lost in the electoral college.” Nor is there a need to credit people for short phrases like “vagaries of the electoral college,” where the alleged novelty is simply the use of the word “vagaries.” In a law review article, you’d drop a footnote, but when you don’t have footnotes, you’d often just generally list the book in a bibliography and be done with it. Copying really original ideas from another book is a different story, but I really didn’t see much of that in the charges against Tribe.

But I say “tentative,” because this is the sort of stuff that requires work to reach an informed opinion about, especially when the charges are allegations of personal misconduct, and allegations in my own professional field, where my judgments are likely to seem like expert judgments and not just a layperson’s speculation. I don’t want to give an off-the-cuff definite answer. Rather, I’d have to look at the books (I asked the library for them yesterday, but haven’t gotten them yet); check to see the quotes in context; look carefully again at all the quotes; think some more about what the norms are or should be in this particular medium (a professor writing a book for a lay audience, without footnoting); and more.

That, as I said, takes work. Work takes time, especially when it’s not your day job. At some point, the work becomes more trouble than it’s worth, which means that I might conclude that I don’t want to publish any definite view on this subject at all. In fact, I wouldn’t have even taken the time to write this post if so many people hadn’tt e-mailed me about the subject.

So please, never be surprised that we’re not blogging about something, and especially not when blogging about that something actually requires a good deal of time and effort. Sometimes we’ll invest that time and effort, if we’re interested enough, and if we’re inclined to set aside our other business. Sometimes we won’t. Nothing at all surprising about it.