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Wednesday, January 5, 2022

The Sport of Attacking Law Review Editors

Earlier this week, Gail Heriot at the Volokh Conspiracy wrote a post criticizing the editors of the Emory Law Journal for refusing to publish an invited article after the author, Larry Alexander, refused to make substantial edits to the piece. Initially, Heriot did not include a copy of the article in her post--it was unclear if she did not have access to it or if she simply declined to do so. Instead, Heriot provided a paraphrased version of portions of the article and some heavily edited quotes from correspondence sent by the Editor-In-Chief to Alexander. Heriot called out the Editor-In-Chief by name--a classy move that was repeated by others (here and here, for example) who jumped on the bandwagon to criticize the decision. 

Here's how Heriot portrayed the Editor-In-Chief's reason for rejecting the article absent substantial revisions:

[The Editor-In-Chief] wrote that the ELJ Executive Board had "unanimously stated they do not feel comfortable publishing this piece as written." "We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive." "Additionally," she wrote, "there are various instances of insensitive language use throughout the essay (e.g. widespread use of the objectifying term 'blacks' and 'the blacks' . . .) . . . ."
And here is Heriot's dissection of this reasoning:
(If the term "black" in reference to African Americans is "objectifying," a lot more than just Larry's essay will need to be canceled. As for "the blacks," I have been told that some consider this to be a rude way to refer collectively to the members of a race. But, even assuming that it would be rude, Larry wasn't using the term that way. He was using it to refer to the particular blacks in one of his hypotheticals. The "the" was intended to make that clear.
In addition to the other bloggers noted above, other scholars leaped to Alexander's defense. Keith Whittington called out the Emory Law Journal's "terrible behavior." Andy Grewal admitted that he hadn't read Alexander's essay, but decided that the incident was enough to stoke fears over the specter of ideological tests for journal content. 

Several hours after Heriot's initial post, Eugene Volokh added his own note at the top of her post with a link to Alexander's article. Here it is--if you dare.

At first, the article appears salvageable--it certainly takes a conservative view towards disparate impact theory and includes legion instances of the "blacks" language that Heriot noted in her initial characterization. But then we get to Part III in which Alexander veers off into an opinionated diatribe on why systemic racism does not exist and is not a problem. Some selections:

One hears a lot these days about so-called “systemic racism.” That term is usually not defined, nor are the “systems” that it refers to identified. 

One such “system” is that of apprehending, trying, and punishing those who murder, rape, rob, burglarize, and batter. It is difficult to see how that “system” is in any way “racist.” One may, of course, object to particular criminal laws, including some that have a disproportionate impact on blacks.30 But that would be a retail objection, not a wholesale objection to the “system” of criminal justice.

[Footnote 30]: A number of criminal laws, including, for example, the various laws against acts of violence, have a disproportionate impact on blacks. But that is because blacks violate those laws disproportionately.

. . . 

There are many causes for why races, however defined, are not proportionately represented in all domains. Asians, for example, are “overrepresented” in science, medicine, and technology. This may be due to native intelligence, cultural preferences, educational diligence, or some combination of factors. The same things may explain the disproportionate number of Jews in the professions, or the disproportionate number of blacks in professional sports. There is nothing racist in the selection processes in any of these fields of endeavor.  [emphasis added]

. . . 

Had there been no slavery, the ancestors of today’s U.S. blacks would have remained in Africa, most often as the slaves of other African tribes. And even more basically, in the absence of slavery, today’s individual blacks would not exist. That is, although blacks might exist in the U.S., the ones who actually exist here would not exist at all. For each of us is the product of a particular sperm and egg. Change the circumstances of conception ever so slightly, and a different individual is created. And slavery caused more than slight changes in the circumstances of conception that would have existed in its absence. Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off. People might be better off today had there been no slavery, but none of us, blacks included, would be.

. . . 

The real impediment to the advancement of poor blacks – and everyone knows this, regardless of whether they admit it – is the cultural factors that have produced family disintegration, which in turn portends poor educational achievement, crime and poverty. And this problem will only be worsened by reparations, which sends the message that the predicament of poor blacks is others’ fault, that blacks are victims, and that they have no control over their fate.
Once a link to the article was posted, commentators began to speak out in favor of the Emory Law Journal's decision, noting that it exercised reasonable editorial judgment in rejecting an unsupported and needlessly offensive article. Many of Alexander's initial defenders have not reacted to criticism of the article itself, likely out of the hope that by staying silent their defense will be forgotten. Still, some persist, including Robby Soave at Reason who neglects to cite to or attempt to defend Alexander's article, and this incredible post by William Jacobsen (yet another law professor!) who claims that Alexander's article is "not incendiary" and that "[i]t was hard to find the “controversial” portions to excerpt." He then goes on to include lengthy excerpts from the article, none of which include the excerpts quoted above.

Despite Jacobsen's laughably selective excerpting of the article, his post includes some helpful additional information, including what appears to be an unaltered communication from the Editor-In-Chief of the Emory Law Journal to Alexander regarding their concerns with his piece. Here it is:

Hi Professor Alexander,

Thank you for reading the memorandum and considering our edits. I shared the piece with my Executive Board, and they unanimously stated they do not feel comfortable publishing this piece as written. We think there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer. However, we believe this piece would need to be greatly revised to be published in our journal.

We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive. Additionally, there are various instances of insensitive language use throughout the essay (e.g., widespread use of the objectifying term “blacks” and “the blacks” (pages 2, 3, 6, 8, etc.); the discussions on criminality and heredity (pages 11 and 14), the uncited statement that thankfully racism is not an issue today (page 18)). And, crucially, the discussion on racism is not strongly connected to your commentary on Professor Perry’s work, which is the focus of the Issue and the purpose behind the publication opportunity offered.

Can you please modify the piece, removing Part III and focusing on building Parts I & II to discuss the merits of Professor Perry’s work, by Sunday, December 19? We would welcome a manuscript revised along the lines we have suggested, but, absent those revisions, ELJ will not publish this contribution to the festschrift.

Recall that Part III, excerpted above, includes the most flagrant instances of unsupported, incendiary commentary. Additionally, this full communication reveals that Heriot's quoted version at the top of this post was wildly misleading--emphasizing the portions of the communication that were most likely to stoke conservative outrage, and omitting many of the cited bases for demanding revisions.

Jacobsen also quotes Alexander's measured response:

I refuse to eliminate Part III or to modify my language. I cannot believe the censorious tone you are taking towards an invited symposium participant. You don’t have to agree with what I’ve written, but what I’ve written I stand behind.

For what it's worth, I will be copying Alexander's response and using it as a form reply to any partners who attempt to edit my briefs from now on.

The fallout from the Emory Law Journal's decision and the incomplete initial coverage of it continues. At this point, the bulk of the commentary appears to be on the side of the journal--affirming that the editors were within their rights to reject an invited article that turned out to be filled with unsupported nonsense after the author refused to revise away the nonsense. Had the article been published, these same commentators likely would have excoriated both Alexander and the law journal for writing and publishing such a piece.

This likely reaction, and the initial reaction of Alexander's defenders, are examples of the all too common practice of professors criticizing the student editors of law reviews for their editorial capabilities. Starting with Fred Rodell's 1936 article, "Goodbye to Law Reviews," law professors have developed a sub-genre of academic legal literature in which they do little more than criticize the legal publication process itself. Many of these professors are flippant or extreme in their criticism, describing student editors as "incompetents," noting editors' "ignorance, immaturity, [and] inexperience," claims that student editors are uninformed and characterizing the Harvard Law Review's efforts to "ensure adequate representation of minorities and women" as "the fall of the citadel," and others.

These examples are only some of those that have made it into published scholarship. On social media, many professors demonstrate an almost reflexive instinct to criticize the capability of student editors and to lament the state of legal scholarship. To some extent, this instinct is understandable. Decisions over hiring and tenure are largely based on the quantity and placement of professors' scholarship, and for that to be largely in the hands of student editor is a source of frustration for current and prospective professors. Still, when critiquing student editors, law professors often neglect to mention their responsibilities as educators of these students and fail to recognize that they are essentially attacking their own students when they attack journal editors. 

(As an aside, professors and fellows should not discount the significant, innate value in having their name associated with any academic institution when trying to publish legal scholarship. Practitioners like me who are not associated with any law school have the privilege of submitting pieces branded with the "Independent" label--a red flag that many editors likely equate with unserious scholarship. (For evidence and further discussion of this, see here.))

The initial reactions to the Emory Law Journal's decision reflect the eagerness of certain professors to attack their students, as well as the impossible standards to which student editors are held. Without reading the article, multiple professors summarily concluded that the journal had imposed an ideological test on Alexander's submission. After all these are students--why should they be expected to act professionally? Now that article itself has been revealed, it is apparent that the Emory Law Journal exercised good editorial judgment. None of the original critics have recognized this, though, as they have either chosen to double down or remain silent.

And one should not overlook the fact that multiple professors also called out the Editor-In-Chief by name. It is shameful and unprofessional for professors to gang up on a student, even though it should be clear to most that the student was in the right. Those who initially criticized the Emory Law Journal's correct decision not to publish such shoddy scholarship should acknowledge that the editors made the right call. Should they simply remain silent, they should be held to account for the contents of the article itself.

This incident with the Emory Law Journal is revealing. It reveals the candid views of scholars like Alexander and the shoddy arguments they are willing to make in support of their worldviews. It reveals the willingness of (often) conservative critics of legal scholarship to rush to conclusions of bias without seeing all of the relevant facts. And it is a dramatic instance of the all-too-common instinct of professors to bash law review editors. If this messy incident is to have any silver lining, perhaps it can serve as an opportunity for professors to reflect on their scholarly and public treatment of law review editors and to focus on productive reforms rather than bashing their students.

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