Reflections On The Columbia Law Review Imbroglio

Following up on my previous posts (links below):

Washington Free Beacon, Columbia Law Review Board Buckles to Student Editors and Publishes Controversial Article:

The Columbia Law Review's board of directors buckled to a group of student editors Thursday, restoring the Law Review's website and publishing a controversial article without so much as an editor's note indicating it did not go through the journal's standard editing process. ...

[I]n a Tuesday letter to student editors obtained by the Washington Free Beacon, the Review's board demanded an editor's note be added to the piece outlining the lapses in the "usual processes of review and editing." One day later, a group of 25 student editors voted against adding the editor's note. By Thursday afternoon, the board reinstated the Review's website with no note added to the piece—instead, a statement from the board is linked to the bottom of the site's homepage that "memorializes" the board's "concerns with the process."

A Columbia faculty member expressed disappointment in the board's decision to forgo the editor's note. "There are major governance problems at Columbia that need to be resolved for the long-term health of the institution," the professor told the Free Beacon. ...

Sohum Pal, one of the Review editors who rejected the board’s deal, told the Intercept that "this last semester, has been about students recognizing, stepping into their power," adding that he was "very glad that the law students at the law review are doing the same." Pal is also a Ph.D. student in the Department of History.

David Bernstein (George Mason), The Real Story Behind Columbia’s Controversial Law Review Article—And Why It Matters:

According to various media outlets, the law review’s board of directors, composed of faculty and alumni, tried to censor an article critical of Israel. Except that’s not what happened at all. The true story involves a faction of the law review secretly breaking all procedural rules and customs to publish a piece of ideologically driven claptrap.

The claptrap in question is an article by graduate student Rabea Eghbariah, "Toward Nakba as a Legal Concept." To say that the article is of poor quality not worthy of an elite law review like Columbia’s, considered one of the three or four most prestigious legal journals in the United States, would be an understatement. The article reads as if one asked ChatGPT to disguise a lengthy, biased, inaccurate propaganda piece as legitimate scholarship, making it a dull read and throwing in hundreds of footnotes to dubious sources.

But the article’s poor quality is not the nub of the problem. Elite law reviews publish bad articles all the time. This is especially true in recent years, when law reviews have announced a commitment to social justice. This affects both the staff they select, such as four DEI editors at the Columbia Law Review, and the articles they decide to publish. The result is that ideological and diversity considerations trump a commitment to trying to publish leading scholarship—something that the second- and third-year law students that staff law reviews are generally unqualified to do even when they try.

So while the law review should be embarrassed to publish Eghbariah’s arrant nonsense, the real problem is that a cabal of editors, apparently including the former editor in chief, Margaret Hassel, under whose leadership the piece was commissioned, conspired to ensure that anyone who might have objected to publishing the article was kept out of the process. ...

after the board of directors suspended the website, the editorial cabal apparently leaked the story to the Intercept, an anti-Israel, leftist website, to make it appear that they and the author were victimized for an article criticizing Israel.

The New York Times chimed in on the side of the cabal, claiming that 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." In fact, the board of directors’ concerns were entirely procedural, and they did not seek to regulate anyone’s expression.

Paul Horwitz (Alabama), A Second and, Deo Volente, Last Post on the CLR Mishegoss:

For the most part, the latest information doesn't change my general view that even if the board had some legitimate complaints, its actions were unwise. It was never, it seems to me, going to end up permanently spiking the issue or the article. It should not, therefore, have taken the article (and the website) down--even if its hand was forced by the editors. If it had or has complaints about the process, they could have been addressed after the fact, by a statement about the process followed with this article. More important, in the longer term, the board could carry out a reexamination of current policy, an assessment of whether current editors are following it, and a consideration of whether further policies need to be put into place. Some of these things might, for all I know, be a good idea. Vanishing the article and website was not. As everyone has noted, it certainly did not dampen the controversy that the board predicted the article would occasion by virtue of its subject—it super-charged it.

The new reporting reinforces the view, which I stated in my earlier post, that rather than argue that only one "side" was being irregular (which seems to me factually incorrect, despite the spin efforts; I say more about this below) or argue over which side was being more irregular (that would be the board, I think), it's better to see a larger dynamic of multi-party irregularity at work. That dynamic incentivizes tit-for-tat behavior that ends up being detrimental to the journal and its actual, essential, quite conventional mission of publishing scholarship. ...

[I]f a journal is caught up in internecine battles over what it's there to do, something has gone wrong. A law journal is there to serve as the site of publication of scholarship in a learned discipline. That American law journals are student-run, rightly or wrongly, is incidental to that fact; the Columbia Law Review has the same basic purpose as similar general-purpose law journals elsewhere which are faculty-run and peer-reviewed. The student editors are there not to wave banners on either side or to "step into their power." They're there to run decent, probably short-term-impact-free articles about torts and insurance and property and, I suppose, occasionally, public law. Given that this is a continuous, time-extended enterprise, there should be no internecine warfare because no one should be seeking to radically redo the journal's function for a one-year period. Whatever "power" they have is the power exercised by short-term stewards of a long-term scholarly publishing project.

None of this, again, excuses the board's actions. Nor, to be clear, does any of this suggest that the article itself should not have appeared in the journal's pages. I haven't read it (I did read the initial Harvard piece and have read some of the new article) and it's not in my field, so I can't speak to its merits. I don't think students should select articles, or at the very least not without more substantial scholarly supervision by people officially credentialed in the scholarly discipline and knowledgeable about the sub-field. But that is the current process and this article passed it. And I consider the subject matter wholly acceptable insofar as it deals with legal questions related to the status and treatment of Palestine, a perfectly valid subject, and wholly irrelevant insofar as it is currently controversial; law journals may end up publishing articles on controversial and uncontroversial subjects alike and should treat them the same, and with equal indifference to non-merits-based criticism. (On the merits, of course, the article should take whatever praise or criticism it has coming to it, again without reference to subject matter.) The author should not have had to go through this tsuris twice. 

Steve Lubet (Northwestern), Editorial Choice Is Not Censorship:

[T]he apparently secretive process for soliciting and editing the article was wrong and manipulative in the first instance. It is a clear example of the politicization of scholarship, which should not be used to circumvent previously agreed upon editorial processes. The justification for it, which has been repeated by Prof. Katherine Franke, is nonsense. Here is the description from the New York Times:

The editors on the Review did use a “somewhat irregular process” in editing the piece, “Toward Nakba as a Legal Concept,” because they were concerned about censorship, Professor Franke said. Students involved in the editing said that among the roughly 100 people involved with the journal, they had created a smaller committee to solicit and select the piece, a procedure the Review does not always use.

Editorial choice is not censorship. It just isn't, which law students and professors should all understand. If the regular editorial process would have nixed the article, well, that's how journals work. 

Columbia Spectator, Columbia Law Review Student Editors to Strike After Directors Intervene With Article on Nakba:

The Columbia Law Review administrative board of student editors voted on Thursday to begin a strike, according to documents obtained by Spectator. The motion passed with 20 votes in favor, five opposed, and two abstentions.

The strike came after the review’s board of directors shut down the review’s website on Monday in response to the publication of the article “Toward Nakba as a Legal Concept” by Rabea Eghbariah, a Palestinian human rights lawyer and doctoral candidate at Harvard Law School. On Thursday, the board of directors relaunched the website, adding at the bottom of the front page a statement regarding Eghbariah’s article, in which it wrote that it received reports that the article went through a “secretive” editing process.

The editors are demanding the removal of the disclaimer statement and total editorial independence from the board of directors.

“The strike sends a message to the board of directors that the students who are the engine of the production process and the heart of our operations are demanding editorial independence, which is what we’ve historically enjoyed and what we have a right to expect,” a student editor of the Columbia Law Review, who spoke on the condition of anonymity citing fear of potential professional repercussions, told Spectator before the board formalized the strike. ...

“The attempt to silence my legal scholarship on the Nakba by shutting down the entire Columbia Law Review website is not only reflective of a pervasive and anti-intellectual Palestine exception to academic freedom but is also a testament to a culture of Nakba denialism,” Eghbariah wrote in a statement to Spectator. “The intervention by the CLR Board of Directors exposes, once again, that U.S. academic institutions are, in fact, a very hostile environment for Palestinian voices and thought. What is so scary about Palestinians speaking their truth?”

Prior TaxProf Blog coverage:

• Columbia Law Review Refused To Take Down Article On Palestine, So Board Of Directors Took Down Its Website (June 4, 2024)
• More On The Columbia Law Review Controversy (June 6, 2024)
• Student Editors Vote 20-5 To Reject Board's Offer To Bring Columbia Law Review Back Online (June 7, 2024)