Document 37

October 21, 1998

Professor Charles Nesson,
Professor Peter Berkowitz,
Berkman Center for Internet & Society,
Harvard Law School,
Pound Hall 511,
Cambridge, MA 02138.

Dear Charlie and Peter,

Many thanks for your letter laying out in detail the points you made during our meeting last week. You have asked me if I have the ‘authority, power, and will to redress wrongs in the tenure review process of Peter Berkowitz.' You list two wrongs, with some subheads. Let me respond.

First, let me make a general point. As you know, I supported Peter for tenure and indeed testified before the ad hoc committee. I was unhappy when both he and Bonnie Honig were turned down. So were their supporters among my colleagues. Nevertheless, 18 months on, I am convinced that the last thing the senior members of this department want is to reopen either case, to pick the scabs off the wounds before they have fully healed. I---and my colleagues, too, I believe--adopt a ‘win some, lose some' attitude towards tenure decisions, whether taken within the department or at presidential level, and while some decisions may be particularly hard to accept, one moves on.

If in any particular case, a senior faculty member wanted to dispute a presidential decision, then it should be done immediately. I imagine that the proper procedure would be to raise the matter at a senior meeting and try to win a vote mandating the chair to protest to the Dean and/or the President. That didn't happen in this case then, and now is too late.

On you point (1): It is certainly legitimate for you and Peter to protest the composition of the ad ho committee if bias can be demonstrated, but the department's recommendations are simply that, recommendations. The Dean has the final word, presumably to ensure that no Department can pack the committee to ensure success. Of course, there is nothing to prevent a Chair questioning the composition of an ad hoc committee, though inevitably it would be post hoc, but I don't believe it was done in the Berkowitz case.

On Dennis Thompson's role: Since you both have law degrees, you are better judges than I of the legal weight of your complaints (a), (b), and (c). My observation would simply be that the President can, and doubtless does, consult anyone he wants in the ad hoc process, and not just the formal committee, and he can attribute whatever weight he chooses to whatever opinion he hears. I must emphatically reject one of your points, however. I don't think anybody who knows my senior colleagues would argue that any of them would have voted with Dennis Thompson in hope of advantage or fear of penalty from Massachusetts Hall or a KSG program. Even leaving aside the sterling qualities and plain orneriness of our tenured faculty, the central administration has too little to offer them, and their potential sources of funds are too numerous, for that to be a serious consideration.

I applaud your zeal, Charlie, on behalf of a junior colleague whom you believe wronged; I hope that your efforts will be helpful to Peter's career, which I know will continue to be distinguished. I am not sure that a collectivity of University Professors would be the best body to review the merits of Peter's case, but I think it would be a very appropriate body for the President to consult if he decided that the process of the review should be looked at again.

Yours sincerely,.



Roderick MacFarquhar