The Texas judge, Matthew Kacsmaryk who issued a trainwreck of a decision trying to ban the abortion pill is separately in the news for potentially hiding an article he authored while being considered for his judgeship. The basic gist of the story is that he submitted an article to the Texas Review of Law & Politics, a conservative law journal, attacking legal protections for trans Americans. While the article was being edited he removed his name from authorship and replaced it with two colleagues (Stephanie Taub and Justin Butterfield), allegedly so he could avoid disclosing the article to the U.S. Senate, which was in the process of considering his nomination to a life-tenured district court position.
Many people think this seems pretty sketchy. I'm inclined to agree. But I want to see if I can drill down as to why, because I have conflicting intuitions about some similar fact patterns, and so I'm not sure what's driving my judgments here. So let's work through some hypotheticals.
Let's call the two relevant authors K and J. Fact pattern number one is going to be essentially what Judge Kacsmaryk is accused of having done:
1. K writes an article, submits it to a law review, and has it accepted. After it is accepted, K decides he doesn't want his name associated with piece during the pendency of his judicial nomination, so he arranges to remove his name and have J -- not previously listed as an author -- be the public author on the piece.
And here is, as far as I can gather, the explanation of what happened from Judge Kacsmaryk's supporters -- i.e., this is his defense/apologia:
2. J writes an article, but K submits it to the journal under his name as a "placeholder". After it is accepted, K eventually removes his name and has it replaced by J, who was the legitimate author of the piece.
People are reasonably focusing on Kacsmaryk trying to hide information from the Senate. But there's also a more basic academic ethics problem here, that's present both in the accusatory and "defense" version of the story. Simply put, if J did sufficient work on the article to be legitimately credited as a co-author on the piece, why wasn't her name on draft to begin with? And if J didn't do sufficient work to credibly be deemed a co-author, it's dishonest to present her as having written the article.
Indeed, at one level the "defense" story is worse, because the paper was initially submitted under false pretenses -- K is by stipulation not the actual author, but his name was the sole author listed on the piece when it was submitted and accepted. I have been a law review editor and advisor, and of course have written numerous law review articles (and have many colleagues in each of those roles) -- I have never heard of this "placeholder" authorship idea. The only reason I can imagine someone doing it is to try and get a paper accepted by a journal based on the prestige of the (non-)author's name. Absolutely not okay.
So from that vantage point, either way you slice it Judge Kacsmaryk seems to have done something shady. But I want to tweak the scenarios a bit, because as I said some small changes at least for me change my intuition sharply, and I'm not sure what to draw from that. Consider this variant:
3. J and K write an article together, and submit it with both their names on it. The article is accepted, but at some point in the editing process K decides he no longer wants his name on the piece. The article is ultimately published under J's name only.
This intuitively feels less problematic, but I'm not sure if my intuition is correct. The driver, I think, is twofold: J was always presented as an author of the piece, and the piece is being published under the authorship of someone who we know was (one of) the author(s). Is that enough to make this okay?
One reason I'm inclined to approve this is that the alternative seems odd to me: a piece that J co-authored can never be published if K doesn't want to move forward, even if K is fine with the article being published (so long as his name isn't on it). That seems wrong to me; I don't like that form of limbo. It's different if K was the only real author; I'm not convinced he can hand off his solo work to someone else and say "publish it in your name." But if J was already one of the authors on the piece, I don't feel as bad about letting her take over sole authorial credit (with K's permission) if K wishes to withdraw. Think of it as a sort of joint tenancy in the paper (or, if you prefer, joint and several liability over the paper's contents). Each co-author has full claim over the entire paper; we don't try to subdivide and say "this part is J's share, this part is K's share." And so if K pulls out of the paper, it is fine for the entire paper to revert to J.
If we do think of scenario 3 as problematic, then the question is what, if anything, can cure the problem.
4. J and K write an article together, and submit it with both their names on it. After it's accepted, K decides he no longer wants his name on the piece. They withdraw the piece from the journal it is accepted at. Later, J (with K's permission) submits it to another journal with J listed as the sole author.
To the extent our problem with #3 is that the accepting journal was under the impression that J and K were both authors, #4 fixes that by only representing J as the author from start to finish. To the extent that we think that the problem is that K "really" was an author on the piece and it's misleading not to include him as such, then #4 fixes nothing, but then we still have this weird limbo problem.
Which brings us to scenario 5, which is some form of disclosure short of co-authorship:
5. J and K write an article together, and submit it with both their names on it. After it's accepted, K decides he no longer wants his name on the piece. J continues on with publication, but in the acknowledgements he states that he collaborated with K on an earlier version of the piece and that K gave permission for the piece to be completed on its own.
This seems like the appropriate move to make.
For what it's worth, I was in a somewhat similar situation with my "Epistemic Dimension of Antisemitism" article. I initially was working on the project myself, later asked on a colleague as a co-author, and we submitted the piece to a journal under both our names. That publication venue petered out during the editing process (through nobody's fault), and my co-author in the interim changed jobs to one where it would have been awkward for her to be writing pieces like that. So, with her permission, I continued on with the project solo, and when it was finally published (in a different outlet) I included in the acknowledgements a line saying "Special recognition is due to [former co-author], with whom the author collaborated on an earlier version of this project and who graciously gave permission to the author to complete it on his own."
That, to me, was an adequate resolution to the issue (though maybe people disagree): my name listed as the author, but with disclosure. And the disclosure solution, to be clear, only "works" (to the extent you think it does) insofar as I was always at least in a co-authorial position in the article. So it doesn't cover Kacsmaryk's case insofar as there was a complete replacement of authorship -- persons who were not listed as authors magically "became" the author (whether that's because the true author, Kacsmaryk, disappeared, or because the actual true authors, Taub and Butterfield, were inexplicably left off the draft in its initial submission).
But Taub and Butterfield's article also does not contain any acknowledgement or reference to Kacsmaryk whatsoever (which surprised me). And it is worth noting that, even had he been thanked in an acknowledgements section by the "new" authors, that probably would not have drawn Senate scrutiny (certainly not the same degree as if the article went out under his name). That is to say, leaving aside the "who are the true authors of this article" question, my solution to this problem probably would have "worked" as a means of throwing the Senate off the scent. Which maybe undermines it as actually a valid play; or it just suggests that the norms associated with being considered for a life-tenured judicial position are more stringent than normal academic conduct.
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