Warren Accused of 'Repeated Instances of Scientific Misconduct' Before Harvard Hire

Harvard Law School hired Elizabeth Warren as a Visiting Professor in the fall of 1992, then offered her a full-time tenured faculty position in February 1993, despite a withering 1990 critique of the academic standards used in the 1989 book she co-authored. The critique was made by one of the nation’s leading legal scholars in personal bankruptcy at the time.

In 1990, Rutgers University Law School Professor Philip Shuchman wrote a review of As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America, the 1989 book Ms. Warren co-authored with Teresa Sullivan and Jay Westbrook. In his review, “Social Science Research on Bankruptcy,” published in the 43rd volume of the Rutgers Law Review (pages 185-244), Professor Shuchman assailed Ms. Warren’s academic credibility in a lengthy article that culminated in this hard-hitting charge (see page 187):

Most of their study replicates several earlier research publications. These are hardly mentioned. The writers make extravagant and false claims to originality and priority of research. There appear to be serious errors in their use of statistical bases which result in grossly mistaken functions and comparisons. Some of their conclusions cannot be obtained even from their flawed findings. The authors have made their raw data unavailable so that its accuracy cannot be independently checked. In my opinion, the authors have engaged in repeated instances of scientific misconduct. [emphasis added]

You can read Professor Shuchman’s review in its entirety here.

Professor Shuchman, who died in 2004, was a professor at Rutgers University School of Law in Newark, New Jersey -- Elizabeth Warren’s alma mater -- from 1981 to 2000. Ms. Warren graduated in 1976 and taught there until 1979, prior to Professor Shuchman’s arrival.

Professor Shuchman’s obituary in the Star-Ledger describes his numerous academic accomplishments:

Earlier, he had taught at the University of Connecticut Law School and Benjamin Cardoza School of Law in New York City. He also maintained a private practice in Philadelphia for many years…[in addition he was] a board of director member of the Consumers League of New Jersey, as well as co-chairman of the Coalition to Save Bankruptcy for Consumers…[and] deputy director to the U.S. Commission on the Bankruptcy Laws of the United States and testified before the U.S. Congress during the 1980s.

Professor Shuchman’s passing was also noted in the Rutgers Law School News.

A contemporary tribute to him on his death in 2004 written by Neil Fogarty and available online at the Consumer League of New Jersey website was equally glowing:

Professor Shuchman was a champion of the underdog-- the average debtor in bankruptcy. In the early 1980s, creditors attacked the 1978 Bankruptcy Code, and claimed that bankrupts could afford payment plans, hence bankruptcy should be made more onerous. Professor Shuchman set out scientifically to see what the facts were. He decided to do a statistical study of bankrupts. He enlisted law students to go the Court and get the data right out of the bankruptcy petitions. In an era when computers were still too hard to understand, he enlisted one of his law students with a computer background to write custom database programs to keep track of the information…

Professor Shuchman spent a lifetime teaching and writing and testifying for decent bankruptcy and consumer credit laws. He will be missed by all who strive for justice for consumers.

Speaking with Breitbart News this afternoon, Mr. Fogarty was quick to point out that Professor Shuchman and Ms. Warren both came to the same conclusions about the causes of personal bankruptcy.

If Ms. Warren ever offered a response to Professor Shuchman’s allegations, Breitbart News has not yet discovered it. An e-mail request this morning to her co-author, Jay Westbrook, to learn if he or co-authors Warren or Sullivan ever responded to Professor Shuchman’s allegations remains unanswered at the time of publication.  

In light of these revelations about allegations of academic misconduct made so publicly against Elizabeth Warren by a nationally prominent legal scholar in her chosen field of expertise—personal bankruptcy—further inquiries of those who hired her at Harvard Law School seem warranted. Was there, for instance, any discussion of these serious and compelling charges, most certainly known to most members of the Harvard Law School faculty, during the deliberations that took place prior to her hiring in February 1993?

Both former Harvard Law School Dean Robert C. Clark and Professor Fried, the two most significant members of the Appointments Committee that successfully recommended Ms. Warren’s hiring in 1993, were given an opportunity to comment this morning on the role Professor Shuchman’s charges against Ms. Warren of academic misconduct played in the discussions surrounding Harvard Law School’s offer of a tenured faculty position. As of publication time, neither have responded.

This stunning revelation comes as Elizabeth Warren’s story that Harvard Law School hired her solely on her teaching and academic merits continues to crumble. Speaking with Breitbart News, the former Dean of the University of Pennsylvania Law during Ms. Warren’s years there offered a significantly different description of the quality of her academic scholarship than either Ms. Warren or the two Harvard Law School officials most responsible for her hiring have given.

Colin Diver, Dean of the University of Pennsylvania Law School from 1989 to 1999, and now President of Reed College, had this to say about the quality of Elizabeth Warren’s academic scholarship at the time of her hiring as a tenured full time faculty member by Harvard Law School:

Her scholarship was thoroughly respectable. Elizabeth chose an area of research in which not much work had been done. Commercial bankruptcy had been the focus of most bankruptcy scholarship. Elizabeth made her name in what was then the sleepy little corner of personal bankruptcy, an area ignored by most legal scholars. [emphasis added]

Though Ms. Warren is also widely described as an excellent teacher, Harvard Law School does not hire tenured faculty “on the merits alone” if they are excellent teachers but merely “thoroughly respectable” legal scholars. Clearly, factors beyond teaching and quality of academic research played a role in her hiring.

Both former Harvard Law School Dean Robert C. Clark and Professor Charles Fried, two of the six members of the Appointments Committee that successfully recommended her hiring as a tenured professor in 1993, have offered descriptions of the quality of her academic research at the time of her hiring that is simply not supported by other contemporary accounts.

As the website Masslive.com reported on May 7, 2012:

Robert Clark, the dean at Harvard Law School when Warren was hired, released a statement last week saying three factors contributed to the faculty’s decision to hire Warren: “Our goal of adding a top-notch academic expert in debtor-creditor law to the regular faculty; her excellent scholarship in that field; and her fabulous success as a teacher.” Clark said her Native American heritage was not a factor. [emphasis added]

On May 8, 2012, Professor Fried told WGBH:

"She was hired because she is a superstar in her field. She’s at the very top of her profession as a scholar. She was one of the two or three best in the country," he said. Glowing student evaluations have continued to show her abilities in the classroom, he added. [emphasis added]

Ms. Warren herself has encouraged repetition of press reports that her academic scholarship was “excellent” and “at the top of her profession as a scholar,” relying almost exclusively on the public statements of former Dean Clark and Professor Fried as evidence to support that claim.

Dean Clark’s description of Ms. Warren’s academic qualifications has been consistent over time. As the Harvard Crimson, February 1993 reported on February 5, 1993, when the offer of a tenured position was first announced, it reported:

In a press release issued yesterday, Dean of the Law School Robert C. Clark praised Warren's appointment.

"Liz Warren is a spectacular addition to our faculty," he said. "She is a leading scholar in the fields of bankruptcy and commercial law, and she is one of the rare legal academics to have devoted herself to a large-scale empirical research project of great relevance to legal policy making."

But even Dean Clark has recently acknowledged that gender played a role in her hiring. As he told Breitbart News on May 29th:

According to Clark, when the offer was made, it was primarily due to Warren’s teaching and her reputation as a scholar. He added, however, that “her gender may have been in the minds of several members of the faculty. Many thought that hiring more top-ranked women scholars was an important goal of the appointments process.” 

Former Penn Law School Dean Diver agreed that gender played a role in her Harvard hiring:

Harvard Law School’s offer to Elizabeth didn’t surprise me. She was a spectacular teacher, solid scholar, and on top of that a woman teaching a mainstream area like commercial law. To find a woman willing and capable of teaching commercial law was unusual in those days. She was a strong role model for women law students, who at that time were becoming half of the student body.

All acknowledge that her gender played a role, and that Harvard Law School—like all law schools in those days—was under tremendous political pressure to add “diversity” to the staff. As Diver told Breitbart News:

The AALS and the ABA were pressing all the law schools on diversity,in admission and hiring. We all felt the pressure—shared the moral pressure—to support a legal profession that looked more like the American it was supposed to serve.

Diver’s statement that law schools felt AALS pressure to increase minority hirings was confirmed in a blog post today by University of Chicago Law School Professor Brian Leiter, a defender of Ms. Warren,  who noted that “folks who were at both Penn and Texas had told me”:

[N]o one gave a damn that she had some Native American heritage (though her gender may have been a plus for Harvard), but both schools were eager to add her to their list of "minority" faculty so as to avoid the predictable AALS scrutiny for not having enough ethnic diversity. [emphasis added]

Diver also acknowledged that Ms. Warren’s claims of Native American heritage were part of her “persona” while she taught at Penn, though he de-emphasized the significance of those claims:

The Cherokee thing was one-tenth of one per-cent of the Elizabeth Warren persona. Her persona was more about her “Okie” roots. She saw herself as someone who pulled herself up by the bootstraps and was now a respected professor at a top law school. [emphasis added]

Diver’s acknowledgement that Ms. Warren’s Cherokee heritage claims were part of her “persona” represent the first time a law school official has acknowledged that Ms. Warren’s heritage claims played a role in her professional career, though he downplayed the significance of this persona.

Diver was quick to add, “I’m convinced that everything that happened in her career would have happened as it did without any mention of her Native American heritage.”

While Dean Diver may have been convinced that Ms. Warren’s career would have advanced “just as it did without any mention of Native American heritage,” removing the Native American heritage claims from Ms. Warren’s persona at the time of her hiring by Harvard Law School in 1993 to a tenured faculty position is a bit like unscrambling an egg. It can’t be done.

In an earlier report here at Breitbart News, we noted that her hiring at the University of Pennsylvania Law School in 1987 (two years before Colin Diver was named dean there) was almost certainly because she was the “trailing spouse” behind her well-regarded and sought-after husband, legal historian Professor Bruce H. Mann.

Ms. Warren’s questionable academic scholarship has come under fire recently by George Mason University Law Professor Todd Zywicki. His criticisms were foreshadowed in descriptions of her early scholarship, as well as her own inaccurate contributions to the 1993 Harvard Women’s Law Journal in which she described herself as a “woman of color.”

Diver said of her early academic work:

She made her name for herself co-authoring books and articles with Jay Westbrook and some other social scientists. Their work was more empirical, not so much legal theory, which was more the sort of thing you saw at top law schools. They looked at personal bankruptcies and concluded most were the result of middle class and working class people living at the edge of the economic cliff, who experience unusual setbacks, often of a medical nature.

But Zywicki has provided extensive criticisms that go right to the heart of the credibility of Ms. Warren’s academic research. Professor Zywicki told Breitbart News:

Questions about the validity of Warren's scholarly findings have haunted her since early in her career. Reviewing her first major scholarly work, a co-authored book, noted bankruptcy professor Philip Schuchman (now deceased) stated bluntly, "In my opinion, the authors have engaged in repeated instances of scientific misconduct." Similar questions have continued to nag her scholarship throughout her career, especially her usage and handling of empirical data and the conclusions she draws from it.

For example, her high-profile claim that half or more of personal bankruptcies attributable to medical problems has come in for especially withering criticism. Her first major academic study on the topic claimed that almost half of personal bankruptcies were attributable to medical problems and that the number of bankruptcies annually attributable to medical issues had increased 23-fold in 20 years. But as I wrote in critiquing that study, "Notwithstanding the long consensus that relatively few bankruptcies are caused by health problems and health costs, a recent study concludes that approximately half of consumer bankruptcies are caused by medical problems, a twenty-three-fold increase over a twenty-year period. Both conclusions are fundamentally unsupportable, however, and rest primarily on the way in which the researchers define and count what constitutes a medical bankruptcy rather than an actual increase in the number of bankruptcies caused by medical problems.

Then they came back with a follow-up study that claimed that between 2001-2007 the number of medical bankruptcies had actually increased to an amazing 62 percent of bankruptcies--suggesting that the number of bankruptcy filings attributable to medical problems and debts had soared in just six years. The reality was far different: in fact, the only reason that the percentage of medical bankruptcies had risen was because the total number of bankruptcies overall had plummeted as a result of a bankruptcy law enacted in 2005 that tightened the bankruptcy laws and led to a dramatic drop in the number of bankruptcy filings. As I wrote in the Wall Street Journal, "After Congress made it harder for people to skip out on their debts in 2005, the number of bankruptcy filings plummeted. In 2001, the year Ms. Warren used for the first study, there were 1,452,030 personal bankruptcy filings; in 2007 there were 822,590. Even if we are to accept the methodologies of the two studies for the sake of argument, there were 670,838 'medical bankruptcies' in 2001 and 510,828 medical bankruptcies in 2007—a drop of 160,000 per year. Yet Ms. Warren's article nowhere acknowledges that the absolute number of bankruptcies and purported medical bankruptcies declined." She has never responded to questions on this point.

Professor Zywicki and the late Professor Shuchman are not alone in the academic community in their criticisms of Elizabeth Warren’s shoddy academic research. In subsequent articles in this series, Breitbart News will explore these criticisms in even greater detail.

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.


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