Paul L. Caron

Thursday, January 13, 2022

More Commentary On The Emory Law Journal/Larry Alexander Controversy

Update:  New Disclosures Undermine Defenses Of Emory Law Journal’s Withdrawal Of Larry Alexander's Publication Offer (Feb. 7, 2022)

Following up on my previous posts:

Chronicle of Higher Education op-ed:  Scandalous Suppression at a Law Review, by Andrew Koppelman (Northwestern):

It is now notorious that the Emory Law Journal commissioned and then tried to censor, as “hurtful and unnecessarily divisive,” an article that denied the existence of systemic racism. When the author refused to bowdlerize his piece, the journal rejected it. Two other contributors to the same issue of the journal withdrew their articles in protest. This has been portrayed as a familiar left/right fight, except for one detail: One of the authors who withdrew is on the left. Some have been asking, Who is that guy, and what was he thinking?

I’m that guy. I am urgently concerned about systemic racism, which I have written about extensively, but I withdrew to protest the illiberalism that has these student editors in its grip. That illiberalism is bad for the university and bad for racial equality. It reflects an increasingly influential conception of racial equality that is indifferent to the welfare of the people it purports to help. This isn’t a left/right thing. ...

I learned about all of this when Steven Smith, another invited participant, informed me that he was withdrawing his own piece in protest. I then read Alexander’s article. (Disclosure: Larry Alexander and I have been friendly scholarly adversaries for years.) I immediately wrote to the editors: “Your comments make clear that you are refusing to publish it because you disagree with its political views. This is a fundamental betrayal of the mission of a scholarly journal. If you maintain your position, then I will also withdraw my article in protest … I implore you to reconsider.”

They didn’t. So I’m out.

Paul Horwitz (Alabama), Who Ultimately Runs "Student-Run" Law Reviews? Not Law Review Editors.:

Not having read Larry Alexander's article or relevant documents describing the publication offer or agreement or editing process, I am reluctant to say too much about this specific incident. As he does, Paul Caron usefully collects varied commentary here. But it is one of a few such incidents that have come up recently, with others involving the American Indian Law Review, the Washington University Law Review, and--with a slightly different set of facts--the NYU Review of Law & Social Change. (These are the ones that have drawn publicity. There may be others. And it may or may not be that case that there have been many such incidents in the past, but that the controversy-addiction-feeding aspects of social media, and users of social media, have given these incidents more prominence than would previously have been the case.) 

Some of these involve what we might think of continuity and succession issues between volumes and editors. Others involve what we might think of as changes in view among some law students about what their office as editors of scholarly journals--and it is an office--involves, allows, or demands. That larger category involves a good deal more than just flashpoints around the publication of particular articles, or even public statements issued by reviews or their editors about their aims, although there have been quite a few of those in the past few years.

I was particularly interested in a post by Michael Smith, linked to by Caron, noting and complaining about what Smith calls "the sport of attacking law review editors." ... 

A scholarly institution is the responsibility of the members of its discipline. That's true in general terms, but also in the more specific sense that a law review is ultimately the responsibility of its law school, that school's faculty, and the review's faculty advisor. At a minimum, if someone is going to go to the trouble of naming the editor of a law review when complaining that it has failed in its duties, scholarly or contractual, that critic should note the name of the faculty advisor and ask for comment from that person. But beyond that, ultimately a law faculty itself should step in--has an institutional and disciplinary duty to do so--if one of its journals is acting in a way that violates, ignores, or weakens scholarly norms. ...

 [W]e should certainly remember that however much autonomy we appear to give law reviews, they are not actually autonomous, and for disciplinary reasons cannot be. Ultimately, they are the responsibility of the discipline, generally through the office of the faculty advisor and in a broader sense of the law school and its faculty and administration, and beyond that of all of us. We may act or talk most of the time as if these reviews are independent and autonomous, but the buck still stops with us. It is at least possible that we should be more hands-on in our disciplinary responsibilities on this front than we currently are. Law reviews and their editors are, at least in this system, free to talk about exciting "new" visions about what legal scholarship should be and do, what positions law reviews should take (if any), and so on. (They're often not actually "new," of course.) But if we as a discipline or as individual institutions think their vision is wrong, or that they have acted wrongly or outside scholarly norms in a particular instance, it's still our job to step in and settle the matter.            

Chronicle of Higher Education op-ed:  No, This Isn’t About Academic Freedom: In Defense of Emory Law Journal’s Handling of a Controversial Essay., by John K. Wilson (Academe Blog)

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