Paul L. Caron

Thursday, June 6, 2024

More On The Columbia Law Review Controversy

Update: Student Editors Vote 20-5 To Reject Board's Offer To Bring Columbia Law Review Back Online

Following up on Tuesday's post, Columbia Law Review Refused To Take Down Article On Palestine, So Board Of Directors Took Down Its Website:  New York Times, Columbia Law Review Website Is Taken Offline Over Article Criticizing Israel:

Columbia Law Review WebsiteThe website of the Columbia Law Review, one of the United States’ most prestigious student-edited law journals, was taken offline Monday by its board of directors after its editors published an article that argues Palestinians are living under a “brutally sophisticated structure of oppression” by Israel that amounts to a crime against humanity.

As of Tuesday evening, visitors to the website of the 123-year-old journal saw only a blank page with the message “Website is under maintenance.”

The decision to suspend access to the website is the latest example of how American universities have sought to regulate expression that is highly critical of Israel amid concerns that it veers into antisemitism. That, in turn, has spurred complaints about censorship and academic freedom when it comes to Palestinian scholarship.

In a statement, the board of directors, which consists of faculty members and alumni, said it had decided to suspend the website on Monday after learning two days earlier that not all of the students on the Law Review had read the essay before publication.

Washington Free Beacon, Controversial Columbia Law Review Article Subverted Standard Editing Process:

Columbia Law Review article that argues Jews "capitalized on the Holocaust to create a powerful narrative that monopolizes victimhood" was subject to an atypical editing process that omitted "a large number of Jewish students," according to sources familiar with the process.

While prospective pieces are typically available for the Law Review's roughly 100 members to assess ahead of publication, the "Nakba" piece was handled behind closed doors by a group of roughly 30 student editors, according to Columbia Law School professor Joshua Mitts.

While that group edited the piece "over several months," Mitts said, other editors—including Jews—were unaware even of the piece’s existence until Saturday, just two days before its publication. ...

The ordeal comes as Columbia University leaders continue to grapple with anti-Israel and anti-Semitic demonstrations, even after the conclusion of the 2023-2024 school year.

Over the weekend, for example, a group of Columbia students formed yet another anti-Israel encampment on the school's main lawn, which coincided with the school's alumni reunions. Those who attended the festivities were greeted by a sign outside of the campus reading, "We're back, bitches." Another sign read, "I want your hands on Israel's neck."

The "Nakba" piece, written by Harvard University doctoral candidate Rabea Eghbariah, also included an array of inflammatory rhetoric toward Jews. ...

While the board's decision to shut down the Review website prompted criticism—some of which was highlighted in Associated Press and New York Times articles that referred to the "Nakba" piece as merely critical of Israel—Mitts argued that board members responded insufficiently. 

"I personally think these students involved should face much more substantial consequences, because this was such a gross departure," he said. "You just shouldn’t do something like this that excludes the perspectives of members of the Law Review in such a systematic and far reaching way. Also it’s deceptive, which in and of itself is usually grounds for termination."

Paul Horwitz (Alabama), Again With the Law Review Nonsense:

If you're a student editor and distrust the leadership, you try to "preempt" it by acting irregularly, as the editors here did by rushing the article online. If you're on the board and you distrust the student editors, you use that action to justify shuttering the website altogether. If you're a student editor and distrust other editors, you strategize against them with leaks and so on. And so, as Kurt Vonnegut would say, it goes. The value of routine practices, even at law reviews, is that they help stave off the war of all against all. ...

One thing I would suggest, in line with my usual institutionalist instincts, is that it would help if all these people understood that they have one job to do. It's a professional job, and it has nothing to do, in a direct sense, with effecting change or seeking or avoiding public notoriety. A law review article is just a law review article! Its function is to present scholarship. That's all it's there to do. Other than indirectly (and even this is unlikely), it won't change the world, for better or worse. But for writers and editors to do that--to provide a reasonably well-vetted forum for "collegial, co-operative inquiry that makes progress, however slowly and collectively"--is enough. The journal's editors are not there to change the world or "make a statement" either, and certainly not on a short timeline. They're there to edit and publish scholarship in the field, which again is work aplenty. They're stewards, not movers and shakers. Their job is not to seek fame or attention or display solidarity or anything else, but just to seek to publish good scholarship and avoid bad scholarship. ...

Finally, if one at least partially accepts the Intercept article on this question, it seems likely that the editorial board acted both unusually and wrongly. That's especially unfortunate for one reason: Law review editorial boards and/or faculty advisors, and law school faculty as a body more generally, should intervene more regularly and firmly in the law review process. Law reviews exist for the scholarly discipline, not the students (and not for judges, firms, or other future employers either). In my experience, many law review editors are excellent and "top" law review editors are especially sharp. But they're still definitionally unqualified to do the job of vetting scholarship in the field that they're still studying. This is evident in the choices that even top journals routinely make. It's evident in the fact that a number of them, in recent years, have adopted missions that are incidental to their actual function. 

Michael Dorf (Cornell), The Power Struggle at the Columbia Law Review:

I'm persuaded the board erred here.

There were two basic errors. The first was the decision to shut down the CLR website. The board's letter states that the board shut down the website "to preserve the status quo" to allow the full membership to review the article but also acknowledges that the article was already circulating publicly, so that, "as a practical matter, it" was already "published." And not just published as a draft. The circulating version bears a prominent large-font "Columbia Law Review" heading. Shutting down the website did not preserve any status quo. It created a new and very uncomfortable situation.

The second error was the failure to foresee that the board's actions would be perceived as censorship, whether or not that is a fair description. The board apparently also failed to foresee that its inevitably very public confrontation with the student editors would generate much more negative publicity for CLR than the article itself would have.

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