Update:  Regnery issues correction in Labunski dispute

On a Sunday night in January, I turned on “Book TV,” the weekend program on C-SPAN2 where authors talk about their non-fiction books and editors discuss the publishing industry. Chris DeRose, a Phoenix lawyer and political consultant, was explaining how the Bill of Rights became part of the Constitution. Focusing on the political and personal relationship of James Madison and James Monroe, he devoted particular attention to the crucial election between them for a seat in the U.S. House of Representatives in the First Congress.

I knew that election was of immense importance because I had discussed it in detail in my book, James Madison and the Struggle for the Bill of Rights (2006). Madison won the election by only 336 votes, allowing him to use his extraordinary legislative skills to guide those amendments through Congress. If he had lost to Monroe, we may not have had a bill of rights then or perhaps ever. With Americans worried about the lack of protection for individual rights in the new Constitution, Anti-Federalists might have succeeded in organizing what would have been a disastrous second constitutional convention. Few people know how close we came to not having those amendments.

Mr. DeRose’s book, Founding Rivals: Madison vs. Monroe, The Bill of Rights, and The Election that Saved a Nation, was published in November 2011 as one of the first books in the new Regnery History imprint. In the opening minutes of his presentation, Mr. DeRose told the audience at the Arizona bookstore and those watching on TV that he remembered reading about the election in a book, but found it included only a line or two. He then made this statement:

“So I decided I would read everything that I could about this 1789 election, and what I found was that no one had ever written anything about it before I decided I was going to tell this story.”

I was astonished to hear him say that. I didn’t understand how someone writing on this topic would not have known that I devoted a substantial portion of my book to that election. Other authors before me had written about it, although usually briefly.

My surprise turned to anger when I got a copy of his book. Not only did he know about my work, he used my research without attribution. He does not mention my book anywhere in his -- nowhere in the text or the citations -- even though he covers many of the same topics, in the same order, and using the same sources, as I did.

Mr. DeRose made similar statements on his Facebook page, writing that “Founding Rivals is the never before told story of the most important Congressional election in American history…This is literally the campaign that saved America, told here for the first time.” He added that his book is a “chance to fill a historical gap with a fascinating story.” The book’s flap copy said historians have “virtually ignored” this election.

I have decided to discuss this matter on HNN because it is not just about an author who exaggerates the originality of his work or the failure of a publisher to require him to cite the source of factual information not generally known to readers of American history. This is mostly about how difficult it is prove that someone intentionally used your research without acknowledging it and how few options are available to resolve this.

My book and the story of the Madison/Monroe election

I am a journalism professor at the University of Kentucky and the author of five books and many other publications. I have taught at the University of Washington (where I was tenured), Penn State, the University of Nevada-Reno, and the University of California-Santa Barbara, where I earned an M.A. and Ph.D. in political science. My J.D. is from Seattle University School of Law. I am a tenured full professor at UK.

During the many years I have taught media law, I became increasingly interested in how the first ten amendments were added to the Constitution. I knew the Bill of Rights was proposed by the First Congress and ratified by state legislatures, but I wanted to know more.

That introduced me to James Madison who is, in my view, the most underappreciated of the founders, at least by the general public. He was present at all the major events of that era, including the Annapolis Convention of 1786, the Philadelphia Convention of 1787, the Virginia Ratifying Convention in 1788, and the First Congress in 1789. He deserves most of the credit for persuading delegates at the Virginia convention to approve the Constitution and join the union, thus allowing George Washington to become the first president and avoiding almost certain catastrophe.

After overcoming numerous obstacles to get elected to the House -- including defeating his friend and the future president, James Monroe -- Madison had to deal with colleagues who were indifferent or firmly opposed to adding amendments to the Constitution. That he was able to persuade two-thirds of the House and Senate to propose what became the Bill of Rights was a remarkable achievement.

After writing several chapters and a book proposal, I contacted James McPherson, the Pulitzer-Prize winning historian and professor at Princeton University. He and David Hackett Fischer, another Pulitzer-Prize winning historian and professor at Brandeis University, are the editors of Oxford University Press’s “Pivotal Moments in American History” series. The books in the series are published by OUP’s trade division and are energetically promoted. Although scholars are an important audience for the books, they are priced for the general reader.

OUP had a multi-level approval process for the series that required not only the assent of Professors McPherson and Fischer, but also the support of Peter Ginna, then OUP’s editorial director of the trade division, and others within OUP. After my chapters and proposal were reviewed, they offered a contract. I was excited about my book being in the series.

And I was nervous. At the time I signed the contract, I had written only a few chapters, and I wondered whether I could do the research and write the kind of book that OUP expected. I had no background in history; my one college history course -- on the history of California -- was in my senior year at UC-Berkeley with a thousand students in an auditorium. I had studied journalism, political science, and law, and although I was very interested in constitutional history while in graduate school, I knew it was not the same as having been trained as an historian.

The list of authors who had already published books in the Pivotal Moments series was daunting: McPherson, Fischer, James Patterson, John Ferling, Ray Arsenault, to name a few. Mine would be the tenth book in the series.

I was determined to thoroughly research the subject and make the story come alive with engaging prose, but also adhere to the ethical standards that serious scholars try to follow. That meant not embellishing beyond what the records support and being careful about citing sources. With Madison, who rarely wrote about his personal feelings and did not keep a diary, telling the story of his efforts to secure the Bill of Rights and his evolving views on whether such amendments were necessary was going to be especially challenging.

My book was published in hardcover and audio in July 2006. OUP and I worked together to promote the book, and it wasn’t long before it got attention. It was the subject of a full review in the New York Times Book Review. Gordon Wood, a Pulitizer-Prize winning historian, wrote a 4,000-word review in the New York Review of Books. It was reviewed or mentioned in the Washington Post, the Washington Times, Esquire, The Atlantic, the CBS News web site, and many other outlets. The book was also reviewed in several scholarly journals and discussed in blogs. I was interviewed on radio networks, on local television, and twice on Book TV.

To help with promotion, I wrote 10 op-ed pieces that included the book’s title in the bio tag. Those commentaries appeared in such papers as the Washington Post and Chicago Tribune. The pieces appeared 29 times in newspapers with a total circulation of 6.8 million readers.

The paperback was published in July 2008. It was featured in “Paperback Row” in the New York Times Book Review, and that led to additional reviews, interviews, and appearances.

The research that ended up in Chris DeRose’s book

The chapter in my book about the Madison/Monroe election is 30 pages, and it is discussed in other sections. It’s not an exaggeration to say that if Madison had lost -- and the odds were against him in a district created by Patrick Henry for the purpose of defeating him -- the nation’s history would have been very different.

Unfortunately, primary and second sources provide limited information about the election. The vote totals in each of the eight counties were available in newspapers and reprinted in such books as Gordon DenBoer’s The Documentary History of the First Federal Elections: 1788-1790, but it was difficult to learn much about what happened during the weeks leading up to the election on February 2, 1789. Several sources revealed that it was brutally cold on Election Day -- two degrees at sunrise at Madison’s Montpelier estate -- and about 10 inches of snow were on the ground, making travel to the county seats uncomfortable and dangerous. Some counties were so large it would have taken all day on horseback or in a carriage to get to the polling place. Madison’s second cousin, Francis Taylor, left diary entries revealing that the voting took place over more than one day in some counties and a few other details.

But one important piece of information about the election was missing: How many people were eligible to vote and what was the turnout percentage in each of the eight counties?

This was particularly significant because Patrick Henry, the most powerful figure in the Virginia General Assembly, chose certain counties because their residents were opposed to the Constitution. He was confident that voters would not elect Madison, especially with Monroe as a strong alternative. After making sure Madison was denied a seat in the U.S. Senate (state legislatures chose senators then), Henry turned his efforts toward keeping him out of the House. He knew which counties to include based on how their delegates had voted at the ratifying convention. Henry also engineered the passage of a residency law requiring Madison to seek election in his home county of Orange, which was included in the district. He didn’t want Madison running in a different part of the state that was more supportive of the new government.

Henry was determined to keep Madison out of the First Congress to prevent him from introducing a bill of rights. Henry wasn’t opposed to such amendments, but he thought a second constitutional convention was the only way to reverse the transfer of power to the new government, and the movement for such a convention was energized by outrage over a lack of a bill of rights in the proposed Constitution. Henry knew that if Madison was elected and introduced those amendments in Congress, the drive to organize a second convention would dissipate. That is why Henry worked so hard to defeat Madison and why details about the election are such an important part of the story of the Bill of Rights.

To learn how many men had enough acreage to be eligible to vote, I reviewed thousands of entries in land tax records on microfilm at the Library of Virginia. In going over the records, I had to make decisions as to who could vote based on whether the first name was that of a male or female and how much acreage he owned. Some names could have belonged to either gender, and the tax records were not always clear about land holdings.

I eventually determined that 5,189 men were eligible to vote in the district. I explained in a footnote in my book how I came up with that figure. Now that I knew how many were eligible to cast a ballot, I could compare those numbers to the actual votes for Madison and Monroe and say what the turnout was in each county. A table in my book on page 175 reported the results. That research had not been done before and has not been published anywhere else.

On page 247 of Mr. DeRose’s book, he lists the percentage of eligible voters who cast ballots in six of the eight counties, and each of those turnout percentages exactly matches the ones I have in my book. He also said one of the counties won by Madison had the largest turnout among all the counties that Madison carried. To make that assertion, Mr. DeRose would have to know the turnout percentage in the unmentioned county that Madison won, which is also in my book. He offers no source for the turnout figures.

In Mr. DeRose’s two chapters on the election (the first part of the first chapter is on a different election), he uses 32 endnotes. In my one chapter on the election, I have 126.

Contacting Regnery

In March, I wrote to Marjory G. Ross, the president and publisher of Regnery Publishing. I said Mr. DeRose seemed to have used my research on voter turnout without citing it. I explained that those numbers had been published nowhere else. I also said that since he had seen my book, he knew his statement on “Book TV” was inaccurate.

About a week later, I got an e-mail from Alex Novak, the associate publisher of Regnery History. He said Regnery was taking my letter seriously, they would investigate, and I would hear from them.

A few weeks later, Ms. Ross called me, and we talked for 40 minutes. I asked her to follow-up with an e-mail so I would have a written record of her explanation of how this happened, and she did that a few days later.

Their response was that Mr. DeRose’s failure to cite my work was inadvertent. Through the phone call and e-mail, I learned that even if you think you have “smoking gun” evidence that an author used your work without acknowledgement and did so deliberately, you have no way to prove it. This was not a situation where Mr. DeRose used my words. If that was the case, I could compare our writing to show the similarity. Instead, what I was arguing is that he saw the research I did on voter turnout, used those figures in his book without identifying the source, and that he did so intentionally.

Here are several issues that emerged from my communication with Ms. Ross:

I had asked that Mr. DeRose acknowledge in a letter to me that he had knowingly used my research without credit, and I asked for an apology from him and Regnery. I would get none of those things.

I never heard directly from Mr. DeRose. Ms. Ross told me on the phone that she did not speak to him about my accusations. She explained that running a company like Regnery Publishing keeps her busy, and she asked Mr. Novak to contact him. She said since the failure to cite my work was unintentional, no admission or apology would be forthcoming.

Ms. Ross excused the inaccurate statement on “Book TV” in two ways: The first statement was from the phone call, so I don’t have her exact words, but this is a summary: "Book TV" is a marketing tool. To promote their books, authors do not have to describe their work with literal accuracy; they are entitled to some creative license to make the book seem more original and appealing.

The second point came in her letter. She claimed that Mr. DeRose’s statement on "Book TV" was essentially accurate because he was saying that no book had been published that was only about the election, and he “wasn’t literally saying no word or even chapter had ever been written about it.” On "Book TV," Mr. DeRose had said “no one had ever written anything about it before I decided I was going to tell this story.” Ms. Ross wrote that “our positioning for the book has always been that there was not a full book devoted to this single election.”

I told her on the phone that I did not accept that as a legitimate explanation. No one would have written a complete book about a specific congressional election from the founding period, no matter how important, without placing it in the context of the debate over the writing and ratification of the Constitution and efforts to adopt a bill of rights. Only in that context does the significance of the election become clear. I didn’t believe that what Mr. DeRose really meant was that no book had been written entirely on the House race. Interestingly, his book devotes a chapter and a half to the election.

Regnery’s explanation for the use of the turnout figures

Ms. Ross and I discussed how Mr. DeRose used the turnout figures and why no one during the editing process required him to explain the lack of citations for that material. Here is what she said in her letter:

Mr. DeRose told us that his source for the election results is from the Documentary History of the First Federal Elections. He went on to say that he thought the turnout percentages were found in the same place as the raw totals, but he drew the material for that section of his book from notes he had made two years earlier when preparing a sample chapter and proposal. He said his notes had no reference to your book, which he added he has never owned nor taken out of any library, and that when he went back to fill in citations two years later, he did not consult your book at all. Still, Mr. DeRose did not deny that the turnout percentages could have come from your book during the initial research in 2009.

I find this explanation to be unsatisfying for several reasons:

1) DenBoer’s book reports the election results, but not the turnout figures. If Mr. DeRose noted the source for the actual votes, why would he not have done the same for the turnout percentages?

2) If Mr. DeRose had cited incorrectly the DenBoer book as the source for my figures, that would have presented a different case. Then he could have said that he intended to credit my work, but mistakenly cited DenBoer. This argument is undermined by the fact that there is no citation for the turnout figures. If Mr. DeRose thought the turnout figures came from the DenBoer book, he should have cited it.

3) Ms. Ross implied that Mr. DeRose looked at my book during the initial research phase when preparing a chapter and the proposal, but when he went back “to fill in the citations two years later, he did not consult your book at all.”

No matter how he got access to my book, it is hard to believe that he would have written down the turnout numbers without including where they came from. In doing a project as complex as a book, no one would jot down the turnout figures and then decide, “I won’t write down where I got them. I’ll remember the source in case I later use those figures in my book.” This explanation is missing something.

4) It is remarkable, considering how many of the same topics are covered in both books, that he does not cite mine at all. If he consulted my book for long enough to grab the turnout percentages, you would think he would remember that he had seen my work—even if it was two years before—and he would find a way to cite it. As I mentioned earlier, my book was available in bookstores all over the country and was reviewed in many news outlets and in scholarly journals.

Perhaps he did not want to take a chance that a reviewer would see the title of my book in his citations, get a copy of mine or read about it online, and then mention in a review that Mr. DeRose’s claim that he alone had discovered the importance of the election was inaccurate.

5) Finally, I asked Ms. Ross why the person editing Mr. DeRose’s book would not have required him to provide a source for the turnout figures. I told her the editors at OUP would have insisted on one.

Her response is from our phone call -- she did not mention this in the letter -- so, again, I don’t have her exact words, but she basically said with Mr. DeRose’s book having so many citations, it’s understandable that some passages that should have included a source were overlooked. She said she would speak to the person who did the editing to prevent a similar situation in the future.

Regnery’s proposed actions

In her letter, Ms. Ross wrote that Regnery would immediately post a notice on its Web site “citing your research for this data, and confirming that your book had covered this election.”

After I received her letter, I checked for weeks everywhere it might be on their Web site -- including the history imprint page and the page devoted to a description of Mr. DeRose’s book -- and never found it.

I had asked that Regnery contact C-SPAN to let them know that Mr. DeRose’s statement on "Book TV" that no one had written about the importance of the election had been disputed. His presentation was shown five times on "Book TV," the last time on March 3, 2012, shortly before I sent my letter to Ms. Ross. It has not been shown since then, and as of this writing, no future broadcasts of his presentation are listed on the "Book TV" web site.

I had also asked that she contact the two scholars who wrote blurbs for the book to see if they wanted to remove their endorsement from any reprint of the hardcover or from a paperback edition. She said in her letter she would let them know of my concerns. Richard Norton Smith’s and Larry Sabato’s blurbs are still on Amazon. The audio version of the book, which became available in April 2012, makes the same claim as the flap copy that “historians have virtually ignored” this election.

Summary

I have not used the word “plagiarism” to describe what happened in this case. Although using someone’s work without identifying the source clearly fits within the definition of that word, I avoided it because most people think of plagiarism as copying someone’s words and passing them off as their own. When words appear in a previous work almost verbatim, it is easier to demonstrate that the transgression was intentional. But in a case like this -- where the accusation is that he used my research without credit -- the proof is much harder to come by. Short of an admission by Mr. DeRose, I have no way of showing conclusively that it was deliberate.

Ms. Ross’s explanation suggests it was just a mistake. I have said that if Mr. DeRose had incorrectly cited my work as coming from the DenBoer book, Ms. Ross’s argument would be stronger. That there was no citation at all for that research could lead to the conclusion that Mr. DeRose knew what he was doing.

Although book publishers are often understaffed, an editor at Regnery should have noticed that no source was given for the turnout percentages and required Mr. DeRose to provide such information.

His book and mine cover many of the same topics and use many of the same sources. I spent a lot of time at the Library of Virginia, Virginia Historical Society, Library of Congress, and National Archives gathering information that was not available elsewhere. During the four years it took me to research and write the book, I read hundreds of pages of letters; newspaper articles; debates in the Virginia General Assembly, the Virginia Ratifying Convention, and the First Congress; and other documents that were published in various collections.

Mr. DeRose may have done similar research. But if he had checked the land tax records on microfilm at the Library of Virginia to see how many people were eligible to vote in the congressional election, his figures would have been different from mine.

My data on the turnout percentages, which were difficult and tedious to gather, ended up in his book with no citation or explanation. Only Mr. DeRose knows how that happened.