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Wonky Scholarship Question

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. peter says:

    is it possible that whoever quoted them in the 1980s made copies, or at least notes, and would be willing to share them?

  2. Gerard Magliocca says:

    The answer appears to be no.

  3. Alfred says:

    That’s a tragic story. I’m always sorry to hear about documents being lost, particularly in recent times.

    Historians face this every once in a while. Didn’t Edmund Morgan deal with some colonial Virginia records that were destroyed during the Civil War in American Slavery–American Freedom? I thought Morgan used the work of a historian from antebellum Virginia who had used the records and explained why he was relying on them.

    My guess would be that the best answer would be a combination of 1, 3, and 4 — discuss this problem at some point in the introduction (or perhaps in the notes depending on how much you rely on them). Then discount them as appropriate. The question is what’s appropriate….

    The amount of weight to give them is partly determined by how reliable the other historian’s account of them is, no? Are you concerned that they weren’t transcribed accurately? That contradictory quotes were omitted and, thus, these are incomplete/misleading statements of Bingham’s thoughts?

  4. reader says:

    I also think a combination of 3 and 4 would be appropriate, unless you have other reasons for doubting the accuracy of the sources from the 1980s.

  5. Gerard Magliocca says:

    Well, I have no good reason to doubt the accuracy of the quotations, and it’s not as if they contain bombshells. They really just add color to the story, but they’d add a lot more if I could read the original documents.

  6. Dan says:

    I think #3 is enough. You are a scholar, who must make the choice about what seems reasonable for your own book. Other scholars may reasonably disagree with some of your choices. But so long as you are transparent about the issues relating to the letters, then no one can accuse you of being an irresponsible or careless scholar.

  7. I agree, # 3. Unless you have some reason to think that the prior scholars were irresponsible or capable of intentional misrepresentation, you should use the best resources you have available. However, much like courtroom testimony, you should give only as much weight to the statements as the credibility of the source deserves.

  8. Dissent says:

    I would go with #1 and #3, but I wouldn’t say to view the quotes with a grain of salt because if you don’t give the quotes more credence than that, you probably shouldn’t be incorporating them. Let readers form their own opinion of how much weight to give the material once you’ve explained the issue that the original documents are not available for verification.

  9. Logan Roise says:

    I would use them but explain in a footnote that you couldn’t review the original documents. Like Dan said, some readers/scholars will disagree with whatever decision you make so in the end you just need to explain why you feel you made the right decision (whatever that ends up being).

  10. A.J. Sutter says:

    “[Q:]is it possible that whoever quoted them in the 1980s made copies, or at least notes, and would be willing to share them? [A:] The answer appears to be no.” The question is a compound question — to which part does the negative apply? And why?

    If the original author is unavailable because he or she has passed away or can’t be found, then maybe #3 is OK (with, as Dissent suggests, maybe a more moderate caveat than the “grain of salt”).

    Maybe the same if the author is alive but claims the notes were lost in a move, house fire, etc. — but this is already not sounding good. If he or she claims not to have made copies or notes at all, that seems odd, don’t you think? And if the author claims they exist but refuses to share them, that’s creepy. Or if you just prefer not to ask the author, that’s not good either.

    In those cases, I’d go with #2 — especially since all the quotes do is add interesting but nonessential details, if I understand your metaphor correctly. I’m writing a book currently myself and have foregone tasty bits in exactly this context. Also, discovering multiple examples of citations to wrong editions in celebrated works of scholarship (e.g., quotes from 5th editions claiming to be from 1st editions in a context where the dates of the quotes are important), has made me very queasy about borrowing quotes of primary sources from secondary ones.

    A less draconian possibility is to exile all your discussion of the quotes (and attendant caveats) to a discursive footnote, leaving them out of the main text altogether.