Professional Responsibility

Character

<1> When used loosely, character means little more than the superficial and idiosyncratic sum of virtues and vices we imagine in another's life. Character, used in this superficial way, is a substitute for personality. Character can be used in a different way, to evoke images and sensibilities that lead to thinking and talking about "the kind of people we should be, [with] the kind of virtues...we should have." [Stanley Hauerwas, Natural Law, Tragedy and Theological Ethics, 20 Amer. J. Juris. 1, 5 (1975)]

What kind of experiences, before and during law school, have most shaped your character?

What kind of new character(s) have you seen in law school?

Would it disturb you to learn that your colleagues did not see you as having character? How would you explain such a judgment on their part?

Is there an incident, conversation, or something you've read or learned during the course of your legal education that has introduced you to individuals who have character?

How has the legal education affected your character? Have the intellectual attributes associated with a legal mind--objectivity, detachment, precision, discipline, cool demeanor--become a part of your character?

Based on what you know about legal education are the attributes of character you see most often in law school the kind of character you want?

What other attributes of character, beyond those acquired in law school, might be demanded of you in the practice of law?

Do you agree with Gerald Postema that it is a "self" that "awaits the person entering the role [of lawyer]? [Gerald Postema, "Self-Image, Integrity, and Professional Responsibility," in David Luban (ed.), The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 286-314, at 287 (Totowa, N.J. : Rowman & Allanheld, 1983)]

<2> The philosopher and theologian Martin Buber says that as soon as his students saw that he wanted to educate their character, they resisted. Was Buber misguided in his belief that teachers should educate the character of their students?

Do you resist those who would educate your character?

Buber argues against the use of the Socratic method unless it is in pursuit of truth: "Not for a moment may he [the teacher] conduct a dialectical maneuver instead of the real battle for truth. But if he is the victor he has to help the vanquished to endure defeat . . . ." [Martin Buber, Between Man and Man 108 (New York: MacMillan, 1965)]. How is the battle for and against truth in the classroom Socratic dialogue an education of character?

<3> What kind of education does one need to be a person with character?

<4> What do we mean when we say a lawyer has character? Law students, asked to write about the meaning of character, suggested that it means:

to favor what is ethically right;

to perceive what is right;

to possess underlying values necessary to make moral decisions;

to consider fellow beings and society, rather than solely satisfying personal needs or desires;

to have the ability to do the right and just thing because it is right and just, despite personal consequences or emotional feelings;

to function with the moral standard of what is right and wrong within a profession, community or society;

to make decisions that make it possible to live with yourself;

to have high values and beliefs (based on what is defined and accepted by the community);

character arises from the conflict between a person's morals or philosophy and the morals of his society;

to stay with our beliefs when we are tested;

to have a framework that guides our behavior when we face ethical problems;

to have the strength of conviction;

to use rules to govern relationships with others in both personal matters and business affairs;

to obey the rules of society;

"we become persons of moral character not merely by following rules or standards of behavior to please others, to please ourselves, or even to adhere to some abstract ideal, but by internalizing these standards or values so that they become part of who we are";

to be committed to establish and live up to a set of standards and values designed to give dignity, purpose and beauty to life, and wherever possible enhance the quality of life for his fellows;

the basic thread that shapes our personality and governs our actions;

to have a personal sense of right and wrong;

to be committed to behavior that is in accordance with one's view of what is good or bad and right or wrong;

to understand obligations and ideals;

to have a sense of fairness and justice and to be guided by this sense of fairness in distinguishing right from wrong;

leads us through life and makes us the people that we are;

to follow our convictions about right and wrong when making judgments;

to adopt the mores of the society as one's own and behave accordingly;

to act in a manner that meets the approval of society;

one's learned conceptual framework of right/wrong, permissible/impermissible, acceptable/unacceptable;

the stronger our moral character, the more we are likely to confront our ethical problems directly;

to conform to standards of what is right or just;

to have integrity, strength or fortitude;

to have virtue;

to recognize fairness, honesty, compassion, justice and integrity;

to be compassionate;

to be honest, dependable, trustworthy and ethical;

to be consistent

to be strong in principle and action and care about the well-being of others;

to serve as a guide;

aids in living a happy, productive life;

shapes our realities, as well as our hopes for the future;

to follow general principles of right conduct;

the presiding force in one's decision-making;

to help us resist or turn back temptations

What pattern, if any, emerges in these expressions about moral character?

Which of these expressions best reflect your own view of character?

<5> Is courage a necessary virtue for lawyers? One theme law students associate with moral character is the idea of standing up to others, resisting pressure, and being willing to accept the consequences. There is, in this view of moral character, an element of courage. Sometimes it is put obliquely: A person with moral character is someone who chooses to do the morally "right" thing or the professionally ethical thing regardless of the situation. One student put the point more directly:

[A] person of sound moral character, in finding a solution to an ethical problem, may face scorn or ridicule should that solution be implemented. Such a person willingly faces public humiliation in order to remain true to his or her sense of values. Someone who has moral character, then, knows the difference between right and wrong and is willing to risk disapproval rather than depart from what he or she believes to be the proper course of action.

Other students argue that we are tempted to do what we want to do and ignore what is morally required of us. As one student put it, "An ethical problem arises when there is a conflict between what one does or wants to do and the guidelines adopted by his particular class or profession." Courage lies in the resistance to temptation. One student pointed out that "People with strong moral characters adhere to their system of belief in the face of adversity." We must, if we are to have character, this student says, swim against the tide. Moral character puts us in conflict, in conflict with those who will oppose us (become our adversaries), or with some part of our self.

<6> Some law students writing about moral character point out that an individual must assess the consequences of her actions and consider the harms that follow from the choices that she makes. This feature of moral character is expressed in a variety of ways:

"To possess moral character one must not only be aware of right and wrong but also attempt to do what he believes is right. Moral character does not require that one always do what he believes to be right; he may, in fact, engage in an activity which he knows to be wrong. But, he will struggle in making his decision and will have feelings of guilt when [he] has committed an act which he believes to be wrong. The man who, in anger, strikes another man, is not necessarily devoid of moral character. He may be if he does not care that he has injured another person and feels no regret for his actions. but one who possess moral character will realize that his actions were wrong and will be concerned that he performed such an act."

"Moral character reflects the ability to foresee the consequences of our actions."

"For most of us in our society, the standards that we call our moral values, we derive by thinking about how our conduct affects others."

"A person with strong moral convictions attempts to treat everyone with respect, not just his family."

"A person with moral character cares about the well-being of others . . . .'

"Our moral character should guide and influence the decisions we make in the face of ethical problems, such that we are mindful of the good and bad consequences of our actions."

<7> In the market place of contemporary life, success depends on selling ourselves, on what Erich Fromm calls a marketing character. [Erich Fromm, Man for Himself: An Inquiry into the Psychology of Ethics (New York: Rinehart & Co., 1947)]. The marketing of character places emphasis on personality over ethics. Prestige and status substitute for an authentic self. The following passage from the journal of a first year law student hints at the process described by Fromm:

I can remember how favorably my parents, friends and neighbors reacted when I told them I was going to law school. I suppose this is because they see it as an excellent opportunity to get a good paying, highly respected position.

Besides the general congratulatory feelings and attitude a few people close to me exhibited, people treated me the same as they always had. This soon changed. After classes had begun and I went home for a visit, people started to treat me like a lawyer. People would discuss local cases, tell me lawyer jokes, kiddingly refer to me as "counselor" and ask me legal advice.

I expected the jokes and the teasing, but I certainly did not expect someone to ask me for advice.

I liked these incidents for two reasons. The first is purely egotistical, it was very complimentary to have people recognize in me a nonexisting expertise. Secondly, because I was enjoying this role playing, I was reinforced that my decision to attend law school was correct and that one day I would enjoy being a lawyer.

The student realizes his "nonexisting expertise" but derives satisfaction from the fact he is able to sell himself to others, that he has a role others will buy. While he ascribes to others the notion that lawyers are well paid and respected, it is equally possible that we are seeing his own fantasy, a projection onto others of ideas he is unable to consciously attribute to himself. His identity as a professional rests on respect that comes from role, not skill; from the acclaim of others rather than self-worth.

The marketing character is not centered in self but in an image of success, respect, power and prestige, all of which depend on others. Self-esteem for such individuals depends on others, "One is driven to strive relentlessly for success, and any setback is a severe threat to one's self-esteem; helplessness, insecurity, and inferiority feelings are the result." [Fromm, at 79-80]

<8> Character and Public Discourse: Commentary

We cannot talk about what lawyers do, and should do, without bringing into the conversation the idea of character and our own moral sensibilities. In thinking about ethics, or talking ethics, we do not start with a clean slate. Sidney Hook, a philosopher, points out that "[w]e never start de novo or from scratch. We carry with us a heavily funded memory of things previously discovered to be valuable, ends or goods to which we feel committed as prima facie validities." [Sidney Hook, The Quest for Being 52 (1961)]. By holding moral views expressed in living the way others see us living, telling the stories we tell, and using the rhetoric we deploy in providing reasons for our choices, ethics becomes an integral part of our day-to-day practices and character.

* * *

It is Sunday, September 27, 1987, and my Sunday New York Times provides a wonderful day of diversion from work. I find a booth at the Dove Restaurant, order the $2.09 breakfast special (three eggs scrambled with diced ham and three pancakes). Following the custom of Sunday paper readers, I discard sections as I read them. With the paper pared to manageable portions, I turn to the news of the day. My attention on this long ago Sunday focuses on two "character" stories. The first is an account of an NFL football player who crossed the picket line of football colleagues during an NFL players' strike. The other story concerns Senator Joseph Biden and revelation of his law school plagiarism.

But first, the football story . . . A caption on the sports page catches my eye--WHY DO THEY CROSS THE LINE? [William C. Rhoden, "Why Do They Cross the Line?" NY Times, September 27, 1987, p. 1S, c.2]. The two columns of story print are sandwiched between pictures of Chris Brown and Jay Brophy, two of the three NFL players who crossed the picket lines in the NFL strike. The caption under Chris Brown's photo says: Chris Brown, dreamer: "It's not every day that you get an opportunity to play pro ball." The picture of Jay Brophy is captioned: Jay Brophy, among the needy: "Believe me, I never wanted it to come to this--I never wanted to have to play this way."

There is, one suspects, something symbolic about a picket line. Even in an era of declining unionism, a picket line stands for something. For those of us with working class parents (my father was in the carpenter's union, my mother in a clothing workers' union), picket times were a symbol of courage and sacrifice, of seeking by collective effort the dignity owed those who must work for a living wage. A picket line may have no meaning to Mr. Brown and Mr. Brophy, yet, they feel it necessary to justify to the journalist William Rhoden, the public, their fellow players, and perhaps themselves, their reasons for crossing a player union picket line. They cross the picket line and argue that we should respect their decision to do so.

Mr. Rhoden asks: "What manner of dream prompts a man to cross a picket line of hostile football players and endure the daily humiliation of jeers and tossed eggs?" For Mr. Brophy the justification is basically economic. Released from the New York Jets during the summer prior to the strike he returned home, to Akron, Ohio, to work with his brother in an asbestos-removal company. "I want to play football; I don't want to go back working asbestos. I never thought I'd cross a line, I grew up in a union family. My father drove a truck for 27 years as a member of a union." Brophy tells the reporter:

"But right now I'm unemployed, I'm out of a job. I can go back and work in asbestos, but it's still not going to pay the bills I need to pay right now. I understand the players' point of view of people crossing the line, but right now, I'm not a member of a team, I'm not a member of anything. I got bills to pay, I got kids to take care of. I've got to do what's best for me and my family."

Rhoden, on the question of money, reports:

A second-round draft pick in 1984, Brophy earned a healthy six-figure salary with the Miami Dolphins and received a Super Bowl check. What happened to his money? "Uncle Sam takes half of what you make if you don't invest it," Brophy said. "The more you make the more you have to do with it. I own two condos in Miami that I'm trying to hold onto--one's rented out, one's not. Then your first couple of years you buy all the things you couldn't afford when you were in college and broke. So the money goes, and when you get cut, you lose your insurance."

* * * *

"It's hard to think that it's really over," he said. "You always think that there's some team out there and there's something you can do for somebody. Believe me, I never wanted it to come to this--I never wanted to have to play this way, but it was an opportunity for me. If the roster is expanded to 49, it might open up another linebacking spot."

Chris Brown's story follows a different logic. Like, Brophy, Brown makes clear that he is not anti-union.

"When I'm not playing football, I work for Pepsi driving a truck, and I know when we went on strike we didn't look too kindly on people who crossed the line . . . ." So why, asks Rhoden, is he crossing the players' picket line? "It's not every day that you get an opportunity to play pro ball . . . . You've got to tilt the scale in your favor. Twenty years down the line, I don't want to say 'What if?'. . . . I get the feeling that by the time next summer rolls around, they won't remember a lot of this . . . . It's hard to remember all these faces. You just keep your mouth shut."

Another player interviewed by Rhoden, Maurice Turner provides another twist to the story. He says, "It was some kind of funny . . . . Two weeks ago nobody wanted me. Now I'm a wanted man." Returning to the New York Jets, who had earlier cut him from the roster, Turner says, "I've been fighting odds all my career . . . . I've never carried the ball in two full years. That's 32 games. My job has been special teams. Everybody's got a role, a job. I considered it an honor to be drafted because I can always tell my kids, 'I got drafted.'" Rhoden points out that Turner has a degree in business administration and is prepared to work but is "still full of football." Turner tells Rhoden: "I was talking to Freeman McNeil during training camp and he put it in a way that I never thought of, but it's true . . . . He said he was committed to the game of football, and that's why he played. I feel the same way. Why else would I keep fighting the odds and trying to make it if I wasn't committed?" Rhoden wonders whether money wouldn't prompt a man to cross the line. "That's the bottom line," Turner said. "But I don't look at the materialistic aspect of it, I look at how I feel about what I'm doing. If I'm playing football I believe that I'm successful because that's what I enjoy doing."

Both Brophy and Brown express support for the union. They want the reader to believe they can see the situation from the perspective of colleagues on the picket line. But their empathy does not affect their actions. What then is one to make of this plea of empathy? When empathy does not result in action, is it empathy or platitude? Perhaps bad faith? For Brophy, the justification seems to be hard times. When you owe bills and you have a family to look out for, crossing picket lines is justified. But the argument begins to look suspect when Mr. Rhoden explores Brophy's financial situation. Brophy is intrigued with the possibility of making money, more money than he can make in an asbestos-removal business with his brother in Akron. As Brophy puts it: "I'm just looking after myself and my family."

The "I just want to play football" reason for crossing the picket line is more perplexing. Football, one must assume from these stories, gets in the blood. It is like rabbit hunting, farming, or being a trial lawyer, not everyone can do it, or wants to. And so, Maurice Turner talks about crossing the player picket line because of his commitment to football. We are asked to believe he crossed the picket line because of his joy in playing the game. One sees here a claim that the love of the game is sufficient to justify crossing union picket lines. But the union players, too, express their love of the game, and support the strike. Turner's notion of principle implies that no football player or classroom teacher (at least those who love their work) would strike. Love of the game, it seems can be so perverted that being in the game is all that counts.

* * *

Still another Sunday, 1987, brings news of Senator Joseph Biden's withdrawal from the race as a Democratic candidate for President of the United States. Mr. Biden has withdrawn because of news accounts of plagiarism during his first year of law school, his use of other politicians' speeches without credit, and lying about his law school record (that he graduated in the top half of his class when he was actually at the bottom, that he had a full academic scholarship when he had a non-academic scholarship). Biden contended that the plagiarism and the distortions of his academic record were trivial, or at least, irrelevant to the larger issue: Whether he was qualified to serve as President. Those who made an issue of Biden's misrepresentations contend that plagiarism was no small matter, and that the plagiarism, in conjunction with the speeches he "borrowed" without credit to their authors says something about Biden's character.

How are we to talk about Senator Biden's character in light of these revelations? R.W. Apple, in the New York Times, has an article, "Candidates Transgressions Loom Large on Home Screen," prefaced with a smaller lead-in "Biden Flunks the 'Character' Test." [New York Times, September 27, 1987, p.E1, c.1.)]. Mr. Apple argues that Biden was

done in by a series of transgressions that, taken alone, might have been overlooked--borrowing from the speeches of other politicians, living and dead, American and British; an instance of plagiarism when he was a freshman in law school, and exaggerations while campaigning in New Hampshire of his academic accomplishments. Taken together, they were too much . . . .

Lurking in the Biden story, as when Gary Hart withdrew from a Presidential race after admitting he had spent an amorous night on a boat with Donna Rice, a woman who was not at the time his wife, is the idea that it is the press disclosures rather than character flaws, that were responsible for thwarting Biden's and Hart's presidential ambitions. Mr. Apple uses the word "transgressions" to describe Biden's actions. It is a swing word, it sounds weighty, but being so seldom used, its meaning is unclear. Is transgression used to suggest that Mr. Biden's actions have moral implications? Transgression has a theological ring to it. Or is it used to suggest trespass, a technical violation of a moral code?

Mr. Apple lumps Mr. Biden's plagiarism as a first year law student, with his use of political speeches written by others (not written for him). Is there no difference, one might ask, between an old transgression and a new one? Old and new transgressions exist on different moral planes and have different moral meanings for an evaluation of character. The old transgression might be used to show that Mr. Biden's character has long been suspect, or having once gone astray, he is now entitled to be seen as a man of character, character evidenced by growth. But Biden's "use" of someone else's political speeches and the resulting deception of his audience, leading them to believe that the sentiments of others are his own, cannot be so easily dismissed. Mr. Biden may share the sentiments of those he quoted without arbitration, in which case the deception is one of authorship rather than reporting sentiments as one's own, which are actually sentiments of others. But the only way to know what sentiments Mr. Biden represents as a political candidate is to hear Mr. Biden speak for himself. To know his sentiments, I must know what ideas he holds and how he presents them. Sentiment, as I use it here, means the interaction of thought and feeling. It is difficult to suggest that ultimately any idea is original or belongs to a particular person, knowing the adage that there is nothing new under the sun. But it is not just ideas that Biden voices, but sentiments and the subjectivity of feelings and emotions of others. Mr. Biden thieves another's words, and claims them as his own.

Senator Biden defended his thieving by claiming that no politician today speaks for himself. Biden is, in this view, being punished for transgressions now common in political life. Perhaps, we should simply accept the fact that politicians are serving up warmed-over ideas and that we are fools to expect anything personal, real, or original. Biden's transgressions are trivial, then, because they reflect what politicians do every day. We learn to ignore political speeches and indeed "politics" because politicians do not speak for themselves. We accept all manner of fraudulent political speech as routine and ordinary. Politicians are not frauds because they do not write their own speeches; they are frauds because their speech is constructed to reflect what we most want to hear. What speech writer today writes speeches to reflect the views and sentiments of the speaker in contrast to speeches that tell an audience what it wants to hear. Political speeches have little moral weight because we cannot determine whether they reflect the concerns of the speaker or the speaker simply panders to our fears and desires.

Mr. Apple seems to agree with Mr. Biden's appraisal his withdrawal has resulted from the "exaggerated shadow" that now plagues his campaign. Mr. Biden tried, early in the fight to remain in the Presidential race, to show how the matter was being exaggerated. Mr. Apple does not say how the shadow of Biden's transgressions have been exaggerated. The important point, from Biden's perspective, was that he did indeed have a scholarship at Syracuse, although admittedly not an "academic" scholarship as he had claimed. In the use of speeches written by or for others, he argued that he had sometimes given appropriate credit, and at other times he had not. In the plagiarism episode at Syracuse, he had quoted one paragraph from the plagiarized article--of which he used five pages--and cited the plagiarized article only for the quoted paragraph.

Following these public disclosures, Biden seemed to accept responsibility for his downfall when he told campaign workers not to be bitter, that it was his own fault, and that the press had treated him fairly. In these statements, he retreats from the earlier suggestion that his transgressions were "exaggerated by the press."

To say that a shadow fell over Mr. Biden's candidacy and exaggerated the problem, as Mr. Apple does, is a way of saying Biden's actions have no moral bearing on his candidacy for the Presidency. Mr. Apple goes on to observe that emphasis on character in the Presidential campaign was also being debated. What, if anything, are we to learn about a person's character from the kind of transgressions committed by Senator Biden? The real question is whether and how Mr. Biden's actions, old and new, then and now, should be used to assess his character, and his fitness to be President?

Again, Mr. Apple is ambivalent. "In the early stages of a courtship, transgressions can be fatal," Mr. Apple reports, "but in a well-rooted marriage, they may be quickly forgiven; so it is in politics." There is something peculiar about the use of courtship and marriage as a metaphor for politics. First, one might want to quarrel with the analogy. Is it really the case that deception and lying are "quickly forgiven" in marriage? Or is it more likely that we so quickly forget transgressions of our national leaders (those who are already in office, those to whom we are of necessity bound by a "public marriage") because each week brings to light new transgressions? In political life, transgression is a way of life. We become numb to the constant parade of transgressions in political circles. But there are those who do not quickly forget the transgressions of spouses or politicians.

Mr. Apple's account of Biden's character is itself a study in ambivalence. Immediately following the courtship-marriage metaphor, Mr. Apple suggests Mr. Biden "had done things that most people consider a bit questionable at best." To say that actions are "questionable" and only "at best," conveys the idea that we are talking about the most minor of moral matters. For Apple, the question is not one of ethics, or even character, but actions "most people" consider questionable.

Mr. Apple comments on an emerging public concern for character in politics. Character finds its way into Presidential races, according to Apple, because "'personality'--a familiar and overused word for character- will count for more" in a campaign where there is so little difference between candidates on the issues. Mr. Apple suggests that in the juxtaposition of campaign issues and character, issues are privileged over character; character is equated to personality. Mr. Apple sees character as a fancy word for personality. But to equate character with personality is to devalue character, to trivialize it. Mr. Apple alludes to a background of disillusionment that may heighten voter suspicions and offers Lyndon B. Johnson and Vietnam, Richard M. Nixon and Watergate, Jimmy Carter and the hostages in Iran, Ronald Reagan and the Iran contra-controversy as examples in which the electorate has watched Presidents become involved in activities that raise grave questions about their judgment, competence, rectitude, and character.

One is struck by Mr. Apple's fondness for lumping things together: What do the Vietnam War, the Iranian hostages, Watergate, and the Iran contra-controversy, have in common? The juxtaposition of such dissimilar events, each having its own cast of characters, muddles our efforts to evaluate the character issue. Is Mr. Apple suggesting that Jimmy Carter and Richard Nixon are to be viewed as having similar moral character? No one, so far as I know, has asserted that Jimmy Carter's moral character was impugned by his handling of the Iranian hostage situation. The American people may have decided to turn Carter out of office for his failure to resolve the matter in a timely fashion, but that is a decidedly different matter than Mr. Nixon's forced resignation from the Presidency for events which he might well have been held criminally liable had it not been for the pardon extended him by Gerald Ford. When we talk about judgment, competence, and rectitude, as Mr. Apple seeks to do, some care must be taken not to indiscriminately equate Lyndon Johnson and Ronald Reagan, or Jimmy Carter and Richard Nixon.

Mr. Apple has difficulty dealing with whether the moral character of candidates is a serious question. Yes, it looms "large on the home screen" as the headline suggests, but what does that mean? Mr. Apple is so ambivalent about moral character in public life that he implies that character matters only because we are in the courtship phase of the political romance with the candidates, only because there is too little differenence between the candidates on what is really important in a Presidential campaign, which is the issue, only in the context of the public's disenchantment with their President, only because what we have learned about Gary Hart and Joseph Biden confirms longstanding rumors "that Mr. Hart had been a philanderer and that Mr. Biden lacked substance and was merely a vehicle for the ideas of the polltaker Patrick Caddell." It matters only because journalists have taken on the role once performed by the electorate of evaluating candidates, only because of the news of their transgressions, in an electronic age, travels so fast. We are left, at the end of Mr. Apple's evaluative speculations in "Candidates Transgressions Loom Large on Home Screen," knowing no more about what counts as character in public life than when we started. The irony is that in careless, loose talk about character, we trivialize it even as we attempt to understand its place in public life.

*   *   *

Does anyone know what Mr. Biden's transgressions and Gary Hart's denials about Donna Rice, have to say about character? William V. Shannon, a contributing columnist, in the Boston Globe, writes that the issue of Mr. Hart's character and judgment remains unresolved. "The answers to those questions [about his character and judgment] seemed at best ambiguous and inconclusive." [Shannon, "Press and Biden," Boston Globe, September 23, p. 23, c. 5] Mr. Shannon characterizes Senator Biden's use of the British politician's speech, giving the audience the appearance that a personal statement of another political was actually his own sentiments about public life, without credit, is "much ado about not much of anything." Mr. Shannon's argument is that Biden is simply doing what politicians and others who are "inspired by masters of their craft" do, "borrowing good lines and phrases, gestures, metaphors and bits of stage business, sometimes with attribution and sometimes not." There is, for Mr. Shannon, something wrong with a world that gets things like deception, theft of intellectual property, and misrepresentation out of proportion. "In a world where a sense of proportion and a sense of humor prevailed," we would not, Mr. Shannon tells us, become so riled over the Biden matter. Mr. Shannon sees the matter as the press feasting at a political debacle. Biden received the treatment he did when the "opportunity arose to do him in by exposure and ridicule." Even Biden came around to the view that it was not the press but his own mistakes that did him in. Mr. Shannon's argument, like that of the bank robber who asks us to believe that his only mistake was to be caught, is misplaced. One might conclude that it is the robbery that constitutes the mistake. In the matter of Joseph Biden (and Gary Hart), it is hard to keep our eye on the question of character and what character means, if we follow the press accounts of character. We can't get a clear picture of character so long as we are obsessed, as is the press, with the fact that character seems more an issue to the press than to the public.

Mr. Shannon has less ability to keep his eye on the character issue than did Mr. Apple. Biden's law school plagiarism, Mr. Shannon argues, is a "borderline form of plagiarism." How the use of five pages of a published law review article in an assigned student brief could be characterized as "borderline" Mr. Shannon does not explain. Mr. Shannon argues that this "minor transgression could be duplicated in the experience of countless students, brilliant as well as mediocre." On this point, Mr. Shannon displays his ignorance of student mores and academic life. Countless students, mediocre and brilliant, may indeed be plagiarizing their way through school, but when they are caught, as was Biden, they will be fortunate to be treated as leniently as was Biden.

Mr. Shannon argues that indiscretions other than serious crimes before the age of twenty-five do not have a bearing on one's character. On this point, Mr. Shannon's plea for a statute of limitations is well taken. The problem in Mr. Biden's case is that the early incident of plagiarism is strikingly similar to Mr. Biden's practice twenty-five years later in using political speeches without giving credit to the author of the speech. The old and new transgressions are similar in character.

More problematic still is the fact that Senator Biden gained a national reputation for his oratory skills, for his elegance in public oratory. The concern about Biden's character flows less from the indiscretions of a reckless law student, and more from a life time practice of reckless disregard in giving credit to others. The failure to give others appropriate credit is deception, plain and simple. Mr. Shannon, to the contrary, concludes with the view that Mr. Biden's "minor embarrassments" are not "mortal sins" and that we should not hold political figures to "inhumanly severe standards." Mr. Apple was, as we have seen, fond of lumping the dissimilar together; Mr. Shannon practices another shadowy intellectual move--offering two extreme possibilities as if they were our only choices. To scapegoat Biden by using "inhumanly severe standards" we would translate embarrassments into sins. But Mr. Shannon leaves the reader with the uneasy feeling that anything short of "mortal sins" are to be forgotten, and if we cannot forget, then there must be no talk about how particular actions short of mortal sins are to be evaluated in terms of character.

A. Bartlett Giamatti, one-time President of Yale and later Commissioner of Baseball, in a letter to the New York Times argued that plagiarism should not be trivialized by viewing it as simply a "literary echo or allusion" used intentionally and has as its purpose recognition rather than deception. [New York Times, September 27, 1987, p. 22 E, c. 4.]. Biden used the speeches of others in a context in which the listener was fully expected to view them as his own. Knowledge that the words were not Senator Biden's would have destroyed their intended effect on the listener, a desire to persuade an audience of Biden's political sensibilities. A "literary echo or allusion"--the use of a phrase or expression used by a famous figure that has now entered popular culture--works in exactly the opposite way. Crediting the source of such references would insult the intelligent listener. The writer/speaker creates a realm of pleasurable play that surprises rather than deceives the audience. The recognition of material, phrases, expressions, ideas, that belong to others is a mark of education, extensive reading, developed intellect, and cultural sophistication. Mr. Giametti warns that the Biden plagiarism, first in law school and now in his Presidential candidacy is not comparable with this more honorable tradition of thieving. "The theft of another's intellectual property . . . is not a trivial occurrence, excusable on the ground that everyone does it," Mr. Giamatti says. Biden's plagiarism reflected an intent to deceive, a deception that reflects on Mr. Biden's character.

Mr. Giametti does not venture an opinion about the plagiarism admitted by Senator Biden and what it says about character. Mr. Giametti's seems to be more concerned with keeping the record straight about the nature of plagiarism--he tells us it is derived from the Latin word, plagium, which means kidnapping, and that it constitutes "stealing." Is Mr. Giametti telling us that Mr. Biden should be viewed as a thief? If not, then what are we to make of this view of plagiarism?

Another letter, appearing alongside Mr. Giamatti's, points out the seriousness of plagiarism, calling "scandalous" the attempt of the dean of the Syracuse Law School to excuse Mr. Biden's conduct. But Professor Damich, the letter writer, himself a law school professor, does not go so far as to comment on "[h]ow this incident [of plagiarism] should affect Senator Biden's political career . . . ." [New York Times, September 27, 1987, p. 22 E, c.5]

Epilogue: Less than a month after the Biden story played in the news, the AP wire service carried another plagiarism story. Rosemarie Tong, who earlier in the year had been named Carnegie Foundation professor of the year, publicly apologized to her Williams College students and colleagues for plagiarizing from a book review in a speech she gave in September at Greenwich High School in Connecticut. Tong explained the plagiarism by noting that the "unattributed material was in a pile of notes" she and helpers had "quickly pasted together for the speech, which she gave, unrehearsed, at the high school." "Ms. Tong blamed the plagiarism on her haste in preparing the speech and meeting the many demands on her time since she was chosen professor the year in 1986" by the Carnegie Foundation. Ms. Tong is quoted as saying: "I tried to do too much for too many people and wound up disappointing the people who mean the most to me: my family and the Williams community . . . ." "What I have learned from this episode is that overcommitment is as much of a vice as undercommitment." Tong teaches philosophy and ethics. ["Former Professor of the Year Admits to Plagiarism in Speech," Daily Hampshire Gazette (Northampton, Massachusetts), October 16, 1987, p. 8, c. 5]