Will Anti-Racist Law Reviews Publish Anti-Anti-Racist Articles by Anti-Anti-Racist Authors?

These policies will institutionalize viewpoint discrimination: only one perspective on a given issue is permissible. In the long run, academic freedom and open discourse will suffer. 

|The Volokh Conspiracy |

Legal scholarship is different from scholarship in other disciplines. The vast majority of law professors publish in law reviews run by students. These journals are not peer reviewed. Student editors may, but are not required, to seek out comments from professors in the field. Indeed, for the most part, third-year law students are solely responsible for publication decisions. And these decisions have serious implications. Applicants on the entry level market tend to have at least one law review publication. And applicants for tenure need to have several law review publications. (The precise number will vary by school).

Many critics of the current model contend that it is inherently unfair for scholars to place their careers in the hands of 3L student editors. I am sympathetic to this argument, but I'm not convinced the alternative is necessarily better. I have had good experiences with peer review and I have had terrible experiences with peer review. Professors may have greater expertise in a field, but they may also have stronger biases about what is and is not acceptable scholarship. I find that students tend to be more open-minded because they do not reside within a discipline's echo chamber. As a result, my suspicion is that student law reviews are more likely to publish a wider range of ideas that are outside the mainstream.

That benefit is especially helpful for right-of-center scholars. It is difficult for conservatives or libertarians to burrow into peer review editorial boards. There are simply fewer right-of-center professors to begin with. But there are far more right-of-center law students. And they are able to join editorial boards with far greater ease. To be sure, there is still viewpoint discrimination. When I applied to be an Articles Editor in 2008, the outgoing board demanded to know if I could fairly review an article by a liberal law professor. Of course, I could. And the vast majority of articles are authored by left-of-center academics. Fortunately, I managed to skate by. I imagine those dynamics have worsened over the past decade, but I know that conservatives can still break through.

Going forward, I worry that law reviews are moving in a direction that will make it difficult, if not impossible for conservative authors to publish.

Consider a recent incident at the Washington University Law Review (in St. Louis). Andy Koppelman offered this brief description:

In one of his classes at Stanford Law School this past May, Prof. Michael McConnell read from a historical quotation that included the N word.  (The quotation's accuracy is disputed; more on that below.)  When criticized by Stanford students and faculty for it, he explained that he "make[s] it a priority in [his] class to emphasize issues of racism and slavery in the formation of the Constitution, and directly quote many statements by supporters and opponents of slavery."  He went on to explain: "First, I hope everyone can understand that I made the pedagogical choice with good will — with the intention of teaching the history of our founding honestly.  Second, in light of the pain and upset that this has caused many students, whom I care deeply about, I will not use the word again in the future."

That should have been that.  But then, at distant Washington University in St. Louis, where he had written an entirely unrelated article for a law review symposium, there was a movement to revoke publication.  The law review ended up instead issuing a statement denouncing his actions.

McConnell's article was not about race. It was about the free exercise of religion. (Although critics may argue that everything is about race.) The students objected to McConnell, as an author, regardless of what he had written for the journal. Professor John Inazu recounts that the students wanted to rescind the publication altogether, but the University would not allow them to:

Some of the protesters originally wanted the Law Review to withdraw its publication offer to Professor McConnell. Washington University School of Law Dean Nancy Staudt prevented this action after consulting with the university's general counsel but authorized this protest statement instead.

The statement began with a disclaimer:

These statements do not necessarily reflect the views of Washington University in St. Louis, Washington University School of Law, the Washington University Law Review as an institution, the contributors to the symposium, or anyone other than the undersigned authors.

The statement was signed by some, but not all of the members of the Law Review. Here is an excerpt:

In publishing this statement, we seek to balance our own condemnation of Professor McConnell's action with the academic freedom that we, as members of a journal committed to publishing a diversity of competing ideas, unequivocally support. Nevertheless, Professor McConnell's action comes amidst a national reckoning on systemic racism, white supremacy, and police violence in the United States, and his use of the n-word—no matter the setting—cannot be divorced from this larger context. We apologize to our readers, especially the Black members of the Washington University community, whom the Law Review has hurt by publishing Professor McConnell's work.

This incident was a flash point. It is common enough for a student-run publication to rescind an offer of publication based on the content of the article. But it is far less common for a student-run publication to try to rescind an offer of publication based on the professor's speech outside the article. I am aware of one other student-run journal that recently considered such a cancellation, but upon advice from faculty advisors, abandoned the move. I fear these sorts of incidents will become more common.

Consider a recent statement from the Emory Law Journal. The Journal is hosting a symposium issue, titled "Systemic Racism in the Law & Anti-Racist Solutions." Generally, I find that law reviews make some effort to foster ideological diversity. Often this representation is little more than tokenism. I have been on many panels were my views are vastly outnumbered, yet I could still speak. But I can't imagine that any diversity of thought will be permitted for this symposium. The core of anti-racism is to deny space to those who are not anti-racist. Kendi stated this point quite clearly in his book:

The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.

In short, a symposium dedicated to anti-racism would be an inherent contradiction if it published articles that were anti-anti-racist. I think this argument extends further. Even if a given article was deemed sufficient anti-racist (whatever that means), the journal could plausibly review the author's statements elsewhere to determine if he or she was sufficiently anti-racist. Certainly Michael McConnell would flunk such a litmus test. I'm sure that all of us have something in our background that could cross some line.

This sort of anti-racist approach test is not limited to the symposium. The Emory Law Journal offered an additional statement:

ELJ is committed to being an anti-racist organization, both in our ranks and in our scholarship. This is just one part of that mission. We look forward to reading your essays and moving the conversation forward.

Presumably, all submissions to this journal will have to be viewed through the two-fold anti-racist prism. First, determine if an article is anti-anti-racist. Second, determine if the author of the article is anti-anti-racist.

These standards would spell the death-knell for conservatives publishing in law review. Even if a mundane article manages to clear all of the editorial hurdles, it can be spiked at the last minute by a claim of anti-anti-racism–either against the article or the author. And these charges cannot be rebutted, unless an editor is willing to push back, and be deemed anti-anti-racist.

Statements from Deans and Law Reviews about anti-racism may seem innocuous, and indeed necessary for the current motion. But we should recognize that these statements will institutionalize viewpoint discrimination: only one perspective on a given issue is permissible. In the long run, academic freedom and open discourse will suffer.

At the present moment, I have submissions out to law reviews. I'm sure there is a chance that editors may retaliate against me (not that they needed any additional motivation). Let them prove me right. Tenure was designed for exactly these sorts of dynamics.

But make no mistake. This treatment will not be limited to McConnell, or Eugene Volokh, or me. Even well-meaning liberals will be targeted. Andy Koppelman, a card-carrying liberal, sketches his own demise:

I hope it isn't only a matter of time before I get attacked for compelling students to read racist writings….  The campaign against McConnell shows how it would happen.  It will be acknowledged that I have not advocated racist ideas.  But, it will be said, I've been insensitive.  I have shown a shocking lack of respect.  I'm complicit in systemic racism.  My lack of sensitivity has needlessly harmed my students.  I need to be held accountable.  Students should never be required to deal with a professor who has acted this way.  A pledge not to do it again does not undo the continuing harm.  And so forth.

Will journals keep lists of professors they should not publish? (Don't dare call them "blacklists."). Or will journals reject submissions from professors who do not sign social justice statements?

You are not safe. You will not be immunized by signing the right statements or staying quiet. No amount of virtue signaling will ever be enough. Eventually, everyone will be subject to cancellation.

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  1. “The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”

    I wonder if Kendi understand those words and the non-stop discrimination they call for.

    1. Oh, I think he understands – but thinks that somehow he will always be the one on top.

      I am forced to one of two conclusions. Either these people have an appalling degree of ignorance to history and basic human nature or they understand human nature quite well and are intentionally making race relations worse for their own personal gain.

      1. “or they understand human nature quite well and are intentionally making race relations worse for their own personal gain.”

        Oh, definitely that, except that this really is more about gender relations than race relations — from the Pink Hats of four years ago to the Bitchy Little Marxists of today, it’s White women who are being exploited and who will suffer the consequences of the inevitable backlash.

  2. Then “ELJ is committed to being an anti-racist organization, both in our ranks and in our scholarship. This is just one part of that mission. We look forward to reading your essays and moving the conversation forward.” Is a monologue a conversation?

    These people, I do not think they understand words.

  3. “When I applied to be an Articles Editor in 2008, the outgoing board demanded to know if I could fairly review an article by a liberal law professor. . . . Fortunately, I managed to skate by.”

    Josh Blackman, always The Real Victim Here.

    1. I think you’ve got him beat. Poor boy, forced to suffer through another insufferable article by a victim. Oh the humanity!

  4. The left has taken over nearly all of the nation’s law reviews. But it really isn’t a big deal because few courts or judges pay much attention to them. These publications have only two real purposes. One is to give students writing and editing experience. The second is to give ambitious law professors an outlet to publish their latest scholarly works. As one of my former law professors once said, “the only real meat in law review articles is in the footnotes.”

  5. Solution: Get rid of law reviews.

    They serve no useful purpose except resume building.

    1. There’s a decent case to be made that without law reviews, the Second Amendment would still be viewed as a collective right.

      1. I’m pretty sure there’s a market for professional journals that interested communities would be more than happy to fund. And they’d probably dispense with the whole played-out punny title meme as an added bonus.

      2. Eh, I don’t know. Outside a certain segment of the legal community, the Second Amendment was never viewed as anything but an individual right. Even the legal community only took the idea of it being a ‘collective’ right seriously for a few decades in the middle of the 20th century, once federal gun control started to become a thing, and they needed an excuse why it might be constitutional.

        It’s possible that law reviews were how that fad got started in the first place, even if they contributed to those same scholars getting over the idea, too.

        1. The narrative I hear – by academics, natch – is that academics crafted the legal strategy by which evidence was marshaled, and precedents cited in a way that would make sense to judges.

        2. Outside a certain segment of the legal community,

          Yes. The legal academy. And the courts. But aside from those.

    2. Get rid of law schools….

  6. You are not safe. You will not be immunized by signing the right statements or staying quiet. No amount of virtue signaling will ever be enough. Eventually, everyone will be subject to cancellation.

    Come on, man. You can make arguments without slathering them in unserious melodrama.

    I have no problem with symposia that have a point of view. I don’t much like law reviews that do so. Luckily you’ve provided no evidence that’s actually happening other than some presuming.

  7. When I applied to be an Articles Editor in 2008, the outgoing board demanded to know if I could fairly review an article by a liberal law professor.

    I’m curious about the word choice here. Did they “demand to know,” or did they just ask about it?

    Just asking a question of this sort seems fairly normal. “Do you think you can fairly review articles you disagree with?”

    1. The only way Josh’s pieces don’t get published is if the reviewers have it out against conservatives, don’tchaknow.

    2. “Just asking a question of this sort seems fairly normal. “Do you think you can fairly review articles you disagree with?”

      Would they ask that of a ‘woke’ Progressive?

      Would they dare?

      Enough said?

  8. This is how modern day fascism manifests. They claim to only be authoritarian fascists to stamp out the “real” authoritarian fascists. Something thar only exists in their demented minds.

    We are at a real tipping point in this society. I, for one, have nothing in common with these people. No shared history, no shared vision, no shared morals, there are no communal bonds. I do not want them as my neighbors, my fellow workers, nor my fellow countrymen.

  9. I think conservative “scholars” like yourself being published in law reviews has less to do with law reviews being staffed by other conservatives than it does with 3Ls’ general inability to spot a bad-faith, cherry-picked argument for what it is.

    It is, indeed, bizarre that entry to legal academia should be gate-kept by students we wouldn’t trust with even the simplest litigation or corporate transaction. The junior associates I work with – from top law schools – may be eager to please, hard-working, and fully professional. But competent, they are not.

    1. So you can spot the *real* scholarship then, eh? Of course, if it supports your priors, it should be good for publication.

      Note, even the peer review academic world, notably in psychology, publishes things that shouldn’t see the light of day and later cannot be replicated. Let alone the recent hoax pulled on the XXXXX-studies peer reviewed journals that published papers about dog parks and rape culture: https://reason.com/2018/10/03/dog-rape-hoax-papers-pluckrose-lindsay/

      Peer review is a slightly higher quality check process than law school students, but let’s not kid ourselves that it’s better, when the trade-off, as Blackman appropriately notes, that it’s less likely that research that is conservative in its conclusions sees the light of day.

      1. So you can spot the *real* scholarship then, eh?

        I can spot a bad-faith argument when I see one, yes. Spend your time chasing down Josh’s cites sometime. Another law professor might see a cite and think, “Wait, is that what it really says?” The law review editor checks for whether the punctuation is properly italicized and the pincite lines up.

        People who feel the need to describe their scholarship as “conservative” really just give away the game. They’re already revealing their motivated reasoning and underlying assumptions. If it gets categorically excluded from publication, I’m not too worried about it.

        1. “People who feel the need to describe their scholarship as ‘conservative’ really just give away the game.”

          Oh, and you just let the data speak for themselves, eh? Such research purity as the wind driven snow. Why, it’s downright amazing that your priors never influence your conclusions.

          You’re laughable. Now, what was that about bad faith arguements?

    2. “The junior associates I work with – from top law schools – may be eager to please, hard-working, and fully professional. But competent, they are not.”

      The older generation has always said that about the younger generation — although this time, I think it is true.

  10. I continue to be amused (formerly dismayed, but now I just don’t care) by the fact that the legal profession allows students who have yet to practice law play any role in the selection, review, or editing of works in their professional journals. Peer review in the science world means review by actual similarly accomplished researchers/clinicians/practitioners. Maybe the legal community ought to establish an actual professional journal instead of relying on the self-licking ice cream cone model of academics publishing by and mostly for academic that we have now. While I’m at it, can we also stop with clerk- and former-clerk opinions on the qualifications/reasoning of judges? Sheesh.

    1. Most scientists are professors. Most lawyers – especially those writing at the appellate level most journals are concerned with – are not.

      Though I suppose the closest parallel would be doctors with I’d wager bolsters your argument. I don’t know for sure what their journal practices are, but I’d expect those are peer reviewed.
      Yeah, it is a little strange.

      1. Fair point about scientists being professors, though I don’t have a sense of what percentage of scientists also teach, or of what percentage of science journal authors are among them.
        It is also very much an apples to oranges comparison I’m making, in that science journal articles serve the very worthy purpose of typically publishing results of actual experiments in order to further inform the relevant scientific community. I don’t see nearly the utility in Law Review/Journal articles. I think it is also significant that science journal articles can be depublished if found to be based on faulty or fraudulent methodologies and data. I don’t recall reading anywhere that a law journal article was depublished because the relevant legal community thought the analysis in it was poorly developed, faulty, or flat out wrong.

      2. re: “Most scientists are professors”

        No, not by a very long shot. By the numbers, more scientists are paid by industry and government than by universities. And that’s before you consider the many ‘citizen scientists’ who do real research while employed at something else entirely.

        That doesn’t necessarily change your argument about law reviews, though.

        1. Taking grants do not make a professor not a professor.

          There are in-house scientists no doubt, but most scientists are professors.

          Dunno much about the citizen scientist community.

          1. I agree that taking a grant does not change your primary employer – that’s still the university. Where you’re wrong is that there are a lot of in-house scientists at companies, non-profits and government agencies. Large universities may have more scientists per institution but there are many, many more companies than universities.

            The citizen scientist community varies a lot by discipline. And much of that can be explained by the need for equipment. There are, for example, relatively few citizen scientists working in high energy physics. There are a lot in astronomy, biology and archeology. In fact, much of the work in those fields still could not be done without the armies of volunteers who donate their time each summer.

        2. Many scientists also only have a Master’s degree….

    2. “I continue to be amused (formerly dismayed, but now I just don’t care) by the fact that the legal profession allows students who have yet to practice law play any role in the selection, review, or editing of works in their professional journals.”

      You are touching on a much larger issue that results from the academic coup that the law schools somehow perpetrated a century ago — the J.D. really ought to be a J. M. — a Master’s Degree and not a Doctorate because it really isn’t.

      In most other professions, it is the Master’s Degree that is the entry to the profession. Most of your “researchers/clinicians/practitioners” will initially only have a M.S. (Master of Science) degree. In my field, it’s a M.Ed. (Master of Education) and that’s all most of the people in K-12 have, although there is also a C.A.G.S. (Certificate of Advanced Graduate Study) which essentially is a second Master’s Degree (I have both). There is also a M.S.W. (Master of Social Work) which you should see with a LICSW or LCSW, the latter being a state license.

      The Master’s Degree is three years of classroom instruction — that’s law school.

      A Doctorate is all of that and three more years of classroom instruction, and then researching and writing (and defending) a dissertation — mine was over 200 pages long. I have 12 Dissertation credits — four “classes” that were never classes.

      A doctorate is a “terminal degree” — there is no higher degree that one can earn. While I could earn a *second* doctorate in something else, even a second Ed. D., there is nothing higher I can earn in my field. But a J.D. can then go on to earn a LL. M., a legacy of when the J. D. was still a LL. B..

      MY POINT: Where most academic journals are edited by Doctoral Candidates and Post-Docs, law reviews are edited by Master’s Candidates.

      That’s your difference.

  11. When I was in law school, I greatly resented law professors unwillingness to edit their own academic journals. I was paying ridiculous tuition rates to fund ridiculously high professor salaries, to pay people who (mostly) didn’t even practice law to teach me how to practice law, and they had the arrogance to ask me to do one of the most basic jobs of any professor – reviewing other professors work? Nowhere else have I encountered so lazy and useless a group of people.

    In reading law review articles on areas of law I do know something about, I also observed that they got simple things wrong, because the 3Ls doing the reviewing did not know those areas of law. So I won’t shed any tears if law reviews become more ideologically uniform in their publishing, I don’t think there was anything valuable there before.

    That said, what I do value is the autonomy of students and student organizations. Student organizations are separate organizations from their universities, as the Supreme Court has repeatedly recognized in the free speech context, and as universities regularly emphasize when they don’t want to be sued for students screwing up. Law schools don’t own the law journals, independent student organizations do. So where on earth does this Washington University Dean get the authority to override the decision of a student organization about what to publish and what not to publish? How is that not a violation of the law journal’s free speech rights? If law professors don’t like the ideological choices of this particular law journal, their remedy is simple: they can stop publishing in it and stop buying it. Let them start their own law journals and do their own work for a change.

    1. I have found this, as well. Back when I actually bothered to survey academic work in my area, I was constantly frustrated by the fact that no one wrote about anything of actual use to my practice, they frequently got simple things wrong, and fully 80% of the articles I’d find would simply repeat material – same cases, same rules, same basic description of black-letter law.

      I do not need article writers to tell me what I already know, or to cite caselaw I can find with fifteen minutes on Westlaw. I need them to spend the time reading Federal Register notices I can’t read on the client’s dime, tracking down congressional records that are hard to dig up, summarizing historical development of certain rules or practices, and so on.

      1. “I need them to spend the time reading Federal Register notices I can’t read on the client’s dime, tracking down congressional records that are hard to dig up, summarizing historical development of certain rules or practices, and so on.”

        That’s Doctoral-level research, not Master’s level.

    2. “So where on earth does this Washington University Dean get the authority to override the decision of a student organization about what to publish and what not to publish?”

      Copyright/trademark ownership of the school’s name and logo.

      I’ve seen this happen before with conservative undergrad groups. It is property which the university owns, and while one might think them A-Holes for doing it, it is their property.

  12. Frankly, I’m surprised the usual cabal of lefties on there haven’t jumped to the defense of law school journals because they must be good because Obama was in charge of one for a hot minute.

    1. In contrast, I am not at all surprised to find some conserva-tarian griping about how a so-called “cabal of lefties” have failed to confirm his preconceived notions about how they would behave.

  13. Did the left read the Turner Diaries thinking that sounded great without bothering to read the ending?

  14. The whining of right-wingers about disrespect for their old-timey intolerance and tone-deaf backwardness from the American mainstream seems unworthy of much respect.

    Why not form you own separatist, conservative-controlled journals, and publish as much magnificent, stale, fringe thinking as you wish?

    1. And funding as well. Further one would need to see the organizational documents for the organization as the could very vest in the administration and/or faculty editorial rights that surpass those of the students.

  15. ” When I applied to be an Articles Editor in 2008, the outgoing board demanded to know if I could fairly review an article by a liberal law professor. ”

    Sounds like they had come to know you better than you know yourself.

    1. Kirkland really does love being incendiary, doesn’t he?

      I don’t think he realizes how deep the open wounds are that he and his ilk nonchalantly pour salt into, nor how tumultuous this country truly would be if DJT were not POTUS.

  16. Josh, the pro racist supporter?

    just really does not know when to not bother

    right wing bobbleheads are the biggest risk to free speech while they scream about their own repression

    trumpski, let’s change the libel laws…..

  17. Like the so-called anti-racists, I see only one remedy: the courts must find that any person who requires an employee or student to be indoctrinated in “critical race theory” AKA “anti-racism” is guilty of hostile-environment harassment directed at white men. And make it a precedent so that this battle doesn’t need to be fought over and over again.

    1. Likewise with the related feminist theory.

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