Third article in a four-part series:
When Harvard Law School offered Elizabeth Warren a tenured faculty position in February 1993, administrators at the school knew that her scholarship had been criticized harshly. Between 1989 and 1991, three leading academic experts on bankruptcy wrote devastating critiques of the 1989 book she co-authored with Teresa Sullivan and Jay Westbrook, As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America. The reviews, published in highly respected academic journals, belied claims made at the time of her hiring by Harvard Law School Dean Robert C. Clark that her work reflected “excellent scholarship” and by Appointments Committee member Professor Charles Fried that she was “at the very top of her profession as a scholar.”
Charges from one expert, Professor Philip Shuchman of Rutgers Law School, that Warren and her co-authors engaged in “scientific misconduct” were made in a 1990 edition of the Rutgers Law Review. Those charges remain controversial to this day.
Breitbart News has learned that at least one member of the faculty at Harvard Law School brought the Shuchman allegations to the attention of the Appointments Committee in late 1992 as it began to consider Ms. Warren’s qualifications to join the faculty on a permanent basis. Neither former Dean Robert C. Clark nor Professor Charles Fried, both of whom served on the Appointments Committee at the time, have confirmed this report.
Another member of the Harvard Law School faculty during that period, Professor Alan Dershowitz, told Breitbart News that he was unfamiliar with the Shuchman allegations. “I was not on [the Appointments] [C]ommittee,” he said, “and do not recall any such charge.” Professor Dershowitz noted that Ms. Warren’s qualifications as an instructor were strong. “She was regarded as the best classroom teacher at the law school,” he added. His knowledge of Ms. Warren’s scholarly qualifications, however, was limited to what the Appointments Committee communicated to him during the meeting held on February 5, 1993 to consider her appointment to a tenured faculty position.
Based on the evidence currently available to Breitbart News, it appears that neither the Appointments Committee nor Dean Clark investigated the merits of Shuchman’s allegations of “scientific misconduct,” nor did they inform the full faculty that such charges had been made. In addition, they appear not to have informed the full faculty of the two other substantive critiques of Ms. Warren’s work that did not involve allegations of “scientific misconduct.” Indeed, based on their subsequent public statements that incorrectly characterized the quality of Ms. Warren’s record of scholarship, it is possible to speculate that both Professor Fried and Dean Clark likely failed to point out Ms. Warren’s academic shortcomings.
A second expert, Marjorie Girth, a 1962 graduate of Harvard Law School and at the time a Professor of Law at the State University of New York at Buffalo, was also highly critical of Ms. Warren’s scholarship. Girth’s 1989 article in the Indiana Law Journal, “The Role of Empirical Data in Developing Bankruptcy Legislation for Individuals,” was unrelenting in its criticism of the research methodology and the conclusions reached in the 1989 book Warren co-authored. In a section titled “Conclusions Where Data Appear Invalid or Non-Existent,” Girth stated:
“Sullivan, Warren, and Westbrook reach very negative conclusions about Chapter 13 as an alternative for bankrupt individuals in their sample. The authors characterize the Chapter 13 petititoners as people who ‘bought a bill of goods’ and ‘were cheated by a system that made unjustified promises of successful repayments and reestablished creditworthiness’ and who ‘paid money they could ill afford for advice to file bankruptcy in a way that was likely to bring them nothing but grief.’
“The evidence that the authors marshal for this stinging assessment is not impressive….[T]he only firm data that the authors can report are for cases that had failed by the time their data collection occurred…Since Sullivan, Warren, and Westbrook could not wait to ascertain the final result of the open cases, … [t]hey then attempt to reenforce their pessimistic prediction about the ultimate outcomes of these cases by reference to an unspecified number of interviews with judges and attorneys who ‘suggested’ that most of the pending cases ‘probably failed.’… In fact, we simply do not know from these data what the success rate would have been if the sampled cases had been followed to their conclusion.”
Girth sampled a total of 292 separate Chapter 13 petitions from Western New York in 1981. Her results were dramatically different from Warren and her co-authors. On the merits of their work she concluded:
“Because of the methodolgical weakness of Sullivan, Warren, and Westbrook data in the Chapter 13 context, bankruptcy policy-makers should not take their negative conclusions about the Chapter 13 alternative seriously.”
A third expert, University of Michigan economics professor Michele White, was equally critical of the work of Warren and her co-authors. In a 1991 article published in the Law and Society Review, “Economic Versus Sociological Approaches to Legal Research: The Case of Bankruptcy,” White began by noting Ms. Warren’s hostility to the principles of economics:
“[The] authors [of this book] are quite hostile to economics, and they attempt to discredit economic models and their predictions.”
That the future self proclaimed “godmother” of Occupy Wall Street displayed hostility to fundamental principles of economics more than two decades ago should come as no surprise. White, in her penetrating critique, stripped away the propaganda from the research, focusing as Shuchman had on problems with the data:
“[T]he type of data collected by Sullivan, Warren, and Westbrook cannot be used to study how people make the decision to file for bankruptcy, because their data set includes only people who actually filed for bankruptcy and excludes those who did not file. But the question of how people decide whether to file for bankruptcy is an extremely important one…
“Questions of this type cannot be answered using data sets such as Sullivan, Warren, and Westbrook’s. Their data tell us only the characteristics of people who filed for bankruptcy under the system prevailing at the time they collected their data. It cannot be used to analyze how the number or composition of bankruptcy filings would change if the bankruptcy system itself were to be changed.” (emphasis added)
Harvard Law School and Elizabeth Warren have attempted to prop up her scholarship by pointing to “evidence” that it is stellar. But upon close examination, that “evidence” focuses not on the quality of her scholarship, but instead on the politically correct nature of her underlying message.
Take, for instance, the 1990 Silver Gavel Award that was given to Warren and her co-authors for their 1989 book by the American Bar Association. That award, which went the following year to admitted plagiarist and Warren’s soon to be left-wing Harvard Law School colleague Laurence Tribe, is not awarded for quality of scholarship. Instead, it goes to the law book that best “educates” the public on legal issues that the ABA, a notoriously left wing organization, considers important.
In the spring of 1992, Warren, then a professor at the University of Pennsylvania Law School, was offered a one year visiting professorship at Harvard for the 1992-1993 academic year. Such temporary appointments are generally considered “try outs” for potential new hires.
Ms. Warren was well received in the classrooms at Harvard. In the fall of 1992 it became clear that she would come under consideration for a full time tenured position. With a solid reputation as a teacher, concern now turned to her record of scholarship. Her academic reputation had been seriously damaged by Shuchman’s charges of “scientific misconduct,” as well as the harsh critiques of Girth and White.
With a prestigious appointment to Harvard Law School hanging in the balance, both her former employer (the University of Texas) and her then employer (the University of Pennsylvania) attempted to repair that damage. Both schools used the cover of the University of Texas whitewashed report into Shuchman’s charges of scientific misconduct to pressure Rutgers into forcing Professor Shuchman to recant. The pressure accelerated during 1992, as Elizabeth Warren’s candidacy for a full time appointment at Harvard Law School continued to advance. But Shuchman refused to recant and Rutgers Provost Norman Samuels backed him up.
On February 12, 1992, Michael Aiken, Provost at the University of Pennsylvania, made the request in a letter to Samuels:
“As you know, an allegation of “repeated instances of scientific misconduct” was made against Teresa A. Sullivan, Elizabeth Warren, and Jay Lawrence Westbrook… in a review by Phillip [sic] Shuchman published on page 187 of volume 43 of the Rutgers Law Review.
“It is my understanding that this matter was reviewed by both the University of Texas and the National Science Foundation and that neither review supported the allegations of misconduct. Even though the investigations found the allegations to be without merit, however, they continue to have serious ramifications for Professor Warren. . . I am concerned that this matter has gone so long unresolved, with the possibility of continuing damage to Professor Warren. I hope to hear from you in the near future that it has been resolved or that you have set an early deadline for its resolution.”
On July 9, 1992, the University of Texas Vice Provost Stephenen Monti wrote to Samuels:
“While we agree that the debate on the merits of the Sullivan, Warren and Westbrook book is properly left to the academic community, a charge of scientific misconduct is not within the normal bounds of academic discourse and scholarship, or one where each “advocate” argues an opinion, but rather it is a specific indictment.
“As you know, procedures for dealing with allegations of scientific misconduct, including an institutions’s responsibilities to investigate all such allegations, and the affirmative obligation of an institution to take such steps as are necessary to repair or restore the reputations of individuals falsely accused of scientific misconduct, are covered by federal regulations. We take such allegations very seriously and therefore conducted a comprehensive investigation of these charges. As you know, the National Science Foundation carried out an independent review. Both of these independent investigations found that the allegations were not supported by the evidence. (emphasis added)
“As part of the efforts to mitigate the potential damage done by this false allegation, we requested, and certainly expected, Rutgers to publish a factual statement regarding the findings of the two independent investigations so that the readers of the original allegations would be fully informed of the facts. Obviously, it is a disappointment that you declined to do so.”
Significantly, neither official initially offered to provide Samuels with copies of the University of Texas and National Science Foundation “investigations” that purportedly exonerated Sullivan, Warren, and Westbrook. As it became apparent that a decision on Ms. Warren’s candidacy for a tenured position at Harvard was imminent, communications between officials at the University of Texas and Rutgers became more intense. In August, 1992, Texas officials finally sent Rutgers officials copies of the two “exonerating” reports.
On December 16, 1992, University of Texas Provost Stephen Monti wrote with great urgency to Samuels at Rutgers:
“In early August 1992 I provided you a copy of the inquiry conducted by the University of Texas at Austin into the allegations of scientific misconduct made against two of our faculty members and a member of the University of Pennsylvania faculty by Professor Shuchman of your Law School in a review article published in the Rutgers Law Review. This official inquiry as well as the NSF, Office of Inspector General, review of this charge (a copy of the pertinent NSF Report was also provided in my August correspondence) found that these allegations were not supported by the evidence. It was my hope that this information would lead to a final resolution of this matter, a long overdue action as this problem was brought to Rutgers’ attention over a year ago. This serious issue, however, is still unresolved. The attached letter from the current Editor-in-Chief of the Law Review clearly demonstrates that he persists in incorrectly characterizing this matter as an academic dispute, an issue subject to debate and rebuttal…
“Since the allegations were made and disseminated in the Rutgers Law Review, the only effective way to mitigate the potential damage to the reputations of these scholars is for the Review to exercise its responsibility to repair the damage it has done to these authors by publishing a factual statement in the Review that clearly informs its readers that these allegations have been found to be without merit by investigations by both the University of Texas at Austin and the National Science Foundation.”
Despite the heavy political pressure from the University of Texas, Rutgers Provost Norman Samuels refused to force the Rutgers Law Review to publish the requested statement. When contacted by Breitbart News, Samuels recalled the correspondence with the University of Texas, but had little recollection of the substance of the exchanges:
“I would like to be helpful on this issue, but that was 20 years ago in a busy office. I remember that there was such an exchange, but simply do not recall anything more specific than that.”
Presumably, if Provost Samuels read the “exonerating” investigations forwarded by the University of Texas, he found them unpersuasive. Professor Shuchman was equally unpersuaded. From 1992 until his death in 2004, Shuchman never withdrew his allegations of “scientific misconduct.”
Any concerns that Ms. Warren and her supporters had that Shuchman’s allegations and the other highly critical academic reviews of her work would hurt her chances of being hired by Harvard Law School soon washed away. Indeed, there is no evidence that Dean Clark, Professor Charles Fried, or any member of the Appointments Committee made any reference to the three critical academic publications when they made their presentation on Ms. Warren’s qualifications to the full faculty. On February 5, 1993, Harvard Law School announced Elizabeth Warren’s hiring as a tenured member of the faculty.
For personal reasons, Ms. Warren did not accept the offer at that time. However, Dean Clark made it a standing offer. On February 15, 1995, she accepted the standing offer and began teaching as a tenured member of the faculty in the fall of 1995.
After Ms. Warren became a tenured member of the faculty at Harvard Law School, attitudes within the academic community towards her weak record of scholarship shifted. Criticisms of her work, such as those made by Shuchman, Girth, and White, were rarely mentioned. Ms. Warren went on to use the prestige of Harvard to promote her ideological messaging, usually covered in a thin veneer of questionable empiricism. Only recently have scholars and journalists begun to peel back that veneer.
The fourth and final article in this series will examine the institutional problems associated with the National Science Foundation’s “investigation” into the charges of scientific misconduct brought by Philip Shuchman against Elizabeth Warren and her co-authors.
Readers can find the first two articles in this series here:
The Academic Scandal Elizabeth Warren and Harvard Don’t Want You to Know About
Michael Patrick Leahy is a Breitbart News contributor, Editor of Broadside Books’ Voices of the Tea Party e-book series, and author of Covenant of Liberty: The Ideological Origins of the Tea Party Movement.