Midjourney’s vision of a contract is a contract

On Francesca Gino

Lessig
4 min readAug 18, 2023

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The click machine of modern media can’t resist the story of an HBS professor who studies dishonesty now being charged with falsifying the data behind her research. That claim was first raised against Francesca Gino by Data Colada. As a consequence, Harvard has placed Gino on administrative leave (without pay).

Data Colada offers compelling evidence that the data in four papers were manipulated. But as they plainly admit, they have no way of knowing if the anomalies they identified reflect fraud and, if so, who did the manipulation. And while anyone would presume that the beneficiary of a fraud is the most likely to have perpetrated the fraud — cui bono — it was HBS that was obligated to investigate whether that presumption is, in fact, true. The business school — like every school at Harvard — has procedures for investigating allegations of academic fraud. Those procedures were not followed in Gino’s case. Gino has filed a lawsuit against Harvard, charging them with failing to follow their own contractual procedures, while asserting absolutely that she did not manipulate any data whatsoever.

Keep that point clear: Gino is not arguing, “Mistakes were made, times were tough, I’ve got lots of work going on, etc.” Gino is claiming that she did not manipulate any data at all.

This case will take a long time resolving. But having known Gino for almost a decade, and (though I do not represent her) having seen some of the evidence about the anomalies, I strongly urge any fair-minded soul to reserve judgment in this case. There is, in my mind, exactly zero chance that Gino manipulated any data at all; and from at least the one case that I’ve seen the analysis for, it is absolutely clear that the anomalous data was part of a gift card scam. (The scammer used purpose-made email addresses, submitted from IP addresses having nothing to do with Gino, on a machine unlike any Gino has ever used.) When the full evidence is revealed by her lawyers, with the benefit of third-party discovery and a serious data forensics expert, I am certain that there will be no serious doubt that Gino is innocent of the charge made against her .

Yet there is one fact so far that is already absolutely clear — and just wrong: It is that the business school, under pressure, changed its ordinary procedures for investigating charges of academic fraud, essentially crippling Gino’s ability to mount a serious defense.

Data Colada apparently threatened Harvard that they would release data immediately unless Harvard took steps against Gino. Harvard caved to those demands, changing their procedures for investigating allegations of data manipulation, by limiting Gino’s ability to get support from forensic experts and outside counsel. Those changes made it impossible for Gino to defend herself adequately, even if they made it easier for Harvard to comply with the demands of Data Colada.

Yielding to the Internet is an increasingly common practice everywhere — and, it seems, also at the business school. The school has many procedures meant to protect faculty, students, and staff. But when publicly pressed, the administration seems increasingly quick to deviate from procedures to the detriment of that community.

That’s the essence of the charge made against the school by a superstar recently denied tenure — Ben Edelman. Though no one doubted that Edelman’s scholarship and teaching were way above the ordinary standards for tenure, a social media “scandal” (his overly aggressive calling out of a local Asian restaurant for fraud) escalated to the embarrassment of him and the business school. That led the school to depart from its standard procedure for investigating charges of misconduct, and then to deny him tenure. Controversial on the Internet now means not qualified for Harvard.

Business schools especially should understand that contracts are contracts and that the procedures outlined in contracts are binding on both parties. And while caving under pressure may be understandable for weak institutions, it is no excuse for Harvard. Harvard is more than a business, as even the business school should recognize. It has an obligation to everyone — especially its students, faculty, and employees — to live up to the procedures that it itself has established for finding the truth, regardless of any “outrage” on the Internet.

Those procedures were not followed with Gino. Or Edelman. And while they both may well (it’s not certain) have the opportunity to prove that in court — at their own great expense — that truth should trouble everyone at Harvard.

Fairness is not a division of the public relations department. It is a principle that should be fundamental — everywhere, but at least here.

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