U.C. Irvine Law Review Adopts Diversity Statement

"Diversity in scholarship promotes historically underrepresented authors, ideas, and perspectives in the field of law."

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The U.C. Irvine Law Review has adopted a Diversity Statement in its latest issue. It provides:

The UC Irvine Law Review affirms the democratic and entrepreneurial spirit of its founders as it strives to balance tradition and innovation, "to consider—and reconsider—the standard assumptions about law review success." Recognizing the persistence of historical inequities in the legal profession, we are committed to diversity, equity, and inclusion, both in membership and scholarship. Diversity in membership enriches our culture and fosters greater learning opportunities in legal education. Diversity in scholarship promotes historically underrepresented authors, ideas, and perspectives in the field of law. Mindful of these purposes, the UC Irvine Law Review remains dedicated to continual evaluation, reflection, and innovation in all its endeavors.

I am not aware of any other journal that has formally published such a statement. If you are aware of any, please email me. I am confident that many journals have articulated internal policies concerning diversity for membership. But what strikes me as novel here is the commitment for diversity in scholarship.

In theory, at least, this commitment will encourage editors to favor "historically underrepresented authors, ideas, and perspectives in the field of law" when selecting articles. But in practice, this statement will disfavor articles that do not fit within those categories. Authors, ideas, and perspectives that are not "historically underrepresented" will be presumptively disqualified from publication in the U.C. Irvine Law Review. Authors who submit may not know in advance how the editors will interpret those categories. But at a minimum, authors who challenge the views of those who are "historically underrepresented" will receive a cold reception.

I am not particularly troubled by a single journal adopting this statement. I doubt the U.C. Irvine Law Review would accept my scholarship under any circumstances, with or without the statement. But progressives schools in California are the canary in the progressive kale mine. (Progressives would "transition" away from coal mining.) Remember, the California Law Review was one of the first journals to require the race of the submitting author.

Soon enough, these sorts of statements will become de rigueur nationwide. And editors will be able to hold up this statement to spike an article that is not sufficiently woke. After all, what article editor would willingly fight for an article that is inconsistent with the diversity statement?

I see a future where conservative authors are persona non grata at law reviews. These sort of statements, combined with value-laden Bluebook rules, will make it impossible for right-of-center scholars to publish, get hired, and get tenured. These sorts of efforts are well-intentioned to promote inclusivity, but will invariably lead to another type of exclusivity.

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  1. “historically underrepresented authors”

    Like Lysander Spooner?

    Just kidding, of course.

  2. Nice job channeling the prez while switching from ranting on twitter to ranting here. You might want to increase your use of CAPITALS to really make your point.

  3. ” I doubt the U.C. Irvine Law Review would accept my scholarship under any circumstances, with or without the statement. ”

    Why?

    Because it doesn’t engage in affirmative action for movement conservative authors?

    Or because the number of articles from South Texas College Of Law accepted for publication by that journal, without regard to whether you were affiliated with that institution at the time, is zero?

  4. Have you considered how this argument squares with Heterodox Academy’s standing exhortation for strong law schools to embrace diversity with affirmative action for clingers?

    1. Leftist claim talk about diversity, but their actions are always racist.

      1. Iowantwo, your point of view, so often repeated among movement conservatives, is nothing but advocacy to create a norm (or would you make it a law?) against practical anti-racism. Considering that, victims of racism quite rightly understand your right-wing word play as racist advocacy. Which it is.

        Why do you do it?

        1. iowantwo, like so many fans of the Volokh Conspiracy, is a stale-thinking bigot in general and a White supremacist in particular.

          Does this remarkably White, strikingly male movement conservative blog generate racists, or merely attract and appease them?

        2. against practical anti-racism.
          How many qualifying weasel words are you going to use to justify your racism. I’m almost positive that banning mixed race marriages were argued on practical grounds. Is “practical”, the atheists version of moral?

          1. Bigoted and superstitious, iowantwo?

            That would explain the ‘two’ part.

            1. The number two is now a sign of bigotry. Who knew?

              What about the other integer numbers? Which of them now evidence bigotry? Am I safe using any of them?

              How about 43?

              1. It’s not necessarily a sign of bigotry. I figured, though, that in your handle’s case “two” was shorthand for “bigoted and superstitious.”

                Some combinations are just natural.

      2. So you support them, then?

  5. I’m just curious when “historically underrepresented” becomes inapplicable.

    Let’s say it’s the year 2080, and Blacks in the US are doing categorically better than whites. Lower incarceration rates. Lower drug abuse rates. Higher 4-year college degree rates. Higher median income. Lower rate of teen pregnancy. Vast numbers in all tiers of government, from local to state to federal. A quorum in the Senate, House, President’s Cabinet, and federal judiciary. By all measures, no longer “underrepresented.” But they were, of course, “historically underrepresented.” Do they still deserve the same benefits they are currently granted in 2020?

    1. Probably not. Most universities affirmatively discriminate against Asians, who of course have higher incomes than whites, despite the Chinese Exclusion Act etc.

    2. No. And the right test for an end to affirmative action for blacks is less complicated than you suppose, but maybe more demanding. Today, anyone can go into the neonatal suite at a big city hospital anywhere in the U.S., and reliably divide newborns into two groups—a higher-family-wealth category, and a lower-family-wealth category—just by looking at them. When that is no longer possible, it will be time to end affirmative action.

      1. And they’ll be wrong a large fraction of the time. When racists start caring about that, they might stop being racists.

        1. Oh boy! Brett you’re on. I’ll give you two to one, to come to Boston and we can see how it goes at Brigham and Women’s. They get about 30 newborns a day, with plenty of ethnic variety. So we can run that bet over and over until you go broke. We can judge family wealth by zipcode. Won’t always be right, but good enough for me to give odds. I suppose we will have to wait for the end of the pandemic, though. Bummer. I could use the cash now.

      2. This sort of presupposes that all people share the same value set (that wealth should dominate all other considerations). If different individuals choose different values, only some of them will prioritize wealth, which should lead to different outcomes.

        Now, its highly unlikely that equal percentages of all members of arbitrary groups (defined without reference to values, such as race, ethnicity, gender, queerness-straightness) will choose a given value heirarchy. At which point wealth equity cannot be expected. (In fact, while substantial overlap is expected, mildly significant differences in preferences and therefore outcomes between such arbitrarily constituted groups is also expected).

        And that’s assuming these things are wholly arbitrary. I’m not talking about historical discrimination – to the degree that it’s historical, it quickly recedes into the background. Ask descendants of irish and italian immigrants, or catholics. But when we have major cultural institutions telling us that successful behaviors like ‘working hard’, ‘being on time’, and ‘doing math’ are white supremacy, a not insignificant number of people are going to oppress themselves by not doing these things. Choosing not to value those things is choosing to be less wealthy.

        (I don’t mean to deny there isn’t any current racism. But I’d focus on things like the war on drugs, poor police practices, and municipal lawfare – ie, the weaponization of municipal codes by Karens. Private racism, to the extent it exists today, is pretty inconsequential today unless its empowered by government action – the best solution is of course less government).

        I also doubt you could clearly divide wealthy and less wealthy families solely by race in a big city hospital. Proof definitely required.

        1. btw, the reason you expect mildly significant differences is because of ‘fishing’. There’s pretty much an arbitrary number of ways you could choose to divide people up without reference to values, and so for any given significance value you’d expect to find spurious ‘significant’ results in that fraction of the groupings. (ie, if you’re using p<0.05, 5% of all possible groupings will be 'significant' by accident).

          And since the study author gets to choose their groups, they can look at all the results and only choose to present the significant ones – thus making it look like there's more significance than you'd expect.

          This is called p-hacking.

      3. re: “reliably divide newborns into [wealth categories] just by looking at them”

        Bullshit. I can’t do that and neither can you. The fact that you think you can is evidence of your own prejudice. The time to end affirmative action was several decades ago.

        1. Rossami, you really believe that? I think you are just spouting bullshit. Do yourself a favor before taking any bets. Look up the average net worth of black families compared to the average net worth of whites. It’s not close.

          But maybe you have offered an opening. If there is a notable wealth disparity between black families and white families, does that mean you agree affirmative action ought to continue?

          1. So… proof you can use race as 100% proxy for wealth? Average is a quite different claim.

            1. Squirrelloid, I never said 100%. I said two-to-one odds. For the groups. Not for each family. Now that you understand it, you can see you would be a sucker to take the bet. That tells you something about why affirmative action is still appropriate.

              1. I think this is far more complicated than you make this sound.

                -How do white people and black people assort themselves among cities, suburbs, and rural areas based on wealth? Obviously urban hospital neo-natal wards are going to primarily hold the children of city dwellers.

                -How does age factor in? Most parents are going to be relatively young and thus relatively less wealthy. The median black person aged 35-55 is wealthier than the median white person under 35 (Fed Reserve Bank data). And there’s probably a reasonably smooth increasing trend in wealth with age, so despite the Fed’s use of large bins, being on the lower end of a bin likely means less wealth than being on the upper end of it. Most first time parents are going to be less wealthy than the median wealth for their racial group.

                (People who live in cities also have their first child later than people who live in more rural areas – and that’s true across educational achievement and racial groups, so a focus on city hospitals is not providing a balanced picture of parenthood in the country).

                It’s also worth wondering if the *number of children* is different for urban mothers of different races, since that would affect the odds that a given baby is a first child.

                You seem to think its a simple matter of looking at race based on general summary wealth data, but there’s a lot of factors to consider which could be relevant – that it’s a family with a baby gives us far more information than just race.

                -Wealth is a kinda weird measure to begin with, because debt can zero out wealth even while you have substantial income streams. Something like 10-15% of the population has negative wealth, and its possible to have 0 net worth while living a pretty good lifestyle with a decent income.

          2. Averages tell you nothing useful because averages include Bill Gates. The median wealth measure is much less skewed by extreme outliers. And while there is a racial disparity in median wealth, the numbers for all races are disturbingly low indicating a general lack of savings and investment across the board.

            However, what you really should be looking at is the mode of wealth – that is, the most common value within the population. The mode of wealth is zero for all races.

            That means when you walk into the hospital and look at a newborn, your best bet is that the kid’s family is within a few dollars of broke no matter what their race.

  6. The solution is simple—the Federalist Society judges McConnell has appointed need to cite blogs more in opinions. So in the Obamacare case a conservative judge can cite a blog post that makes the argument that the Trump tax cut zeroing out the individual mandate makes the ACA unconstitutional because a conservative legal scholar blogs that Obama is a poopy head and Obamacare should be called poopcare after Obama the poopy head! 😉

  7. There is NOTHING well intentioned about any of this. It is for the sole intention of political and legal dominance for the Socialist model.

    1. That’s what I was going to say: There’s no reason Blackman should concede that this was well intended. It’s not.

      It’s intended to provide a basis for ideological censorship, nothing more.

      1. Then publish somewhere else, you’re not entitled to someone else’s platform

  8. “I see a future where conservative authors are persona non grata at law reviews.”

    Not too hard to prophecy the present …

    1. Yes, diversity has to have limits. After all, we live in a civilized world and can’t let just any wingnut pretend to be a lawyer.

  9. Wow. This statement from the post,

    “Authors, ideas, and perspectives that are not “historically underrepresented” will be presumptively disqualified from publication in the U.C. Irvine Law Review”

    represents a level of certainty that only those with a closed mind can make. The position of the Law Journal here says nothing of the kind, does not even hint at anything close to that conclusion that Prof. Blackman arrives at, yet he in no way qualifies his statement and recites it with a certainty that is embarrassing.

    Here’s a thought, from right out of our jurisprudence. Why not wait and see how the editors actually behave, and then if they do engage in the conduct described here, put forth your comdemnation at that time. It will be supported by all of us at that time based on real evidence rather than conjecture . Or maybe the professor is one of those rare people who can judge based without any factual basis. That would be fine, but it’s not the way our legal system or any other system in a free and democratic society works.

    1. No, it represents a level of certainty anybody who hasn’t been living in a cave would have. At this point it’s not a question of if the left is going to exclude conservatives. It’s a question of when they’ll finish excluding conservatives.

      It isn’t hard to predict there’s a flood coming when the water is already up to your knees.

      1. Ah, once again conjecture masquerading as conclusions, and conclusions without evidence. Sigh . . . .

        1. I’ve provided links previously to data on trends in party affiliation in academic disciplines. The trend is unmistakable, and has been going on for a couple of decades now.

          For the first couple of decades they were content with letting the conservatives age out, and just not hiring any new right-wing faculty. Now they’re openly discussing how to get tenured Republicans fired.

          1. How about telling us how many professors have been not hired or let go or denied tenure or fired even with tenure because they were Republicans. No need to be specific, a round number will do. In fact it is probably zero, the roundest number I know of.

  10. I suspect that “underrepresented” authors will be published far more often than “underrepresented” ideas and perspectives.
    Unless, of course, if the underrepresented author really does have underrepresented ideas or perspectives- that would be a disqualifier.

    1. Marxism is overrepresented in academic writing, so if this means they will have less Marxism, I am all for it.

      But somehow I don’t think that is what is intended nor what will happen.

      1. Exactly.
        Any author who violates the assigned rules of intersectionality will be banned.
        I would be very happy to be proved wrong, but then there would be no reason for the policy under discussion.

      2. Bored Lawyer, we have a category for, “motivated reasoning.” Should there also be one for, “motivated stupidity?”

        No, there is not a lot of Marxism in U.S. academic writing. There are very few Marxists on college and university faculties. You have to actually experiment with being stupid on purpose to think otherwise.

        Right-wing echo-chambers abound with charges of, “Marxism,” chosen because the people slinging the term around recklessly suppose it is some kind of superlative—a convenient way to indicate how extremely distasteful they find some left-trending but patently non-Marxist opinion to be. When you do that, you might as well just announce up front that you write for the least-informed segment of a pretty ignorant crowd. It’s tiresome, and it makes you look bad. Why do it?

        1. Given the inanities you have posted here, betraying a profound ignorance of the U.S. Constitutional system, I would worry about my own level of stupidity.

          And, yes, Marxism, in all its flavors, has a large place in U.S. academia.* They might call it something else, and there may be disagreements among its proponents, but at bottom it is all based on Marxist thought. It’s like Baskin Robbins. It’s all ice cream, even if they have 31 different flavors.

          ______________
          *Perhaps one should exclude the hard sciences, although even they of late have become politicized.

          1. Bored, I know enough about the U.S. Constitutional system to know it has nothing to say about Marxism, or capitalism, one way or the other. Which is remarkable, given how many folks think the Constitution enshrines not only capitalism, but free markets.

  11. Cry me a river. The barriers to getting an idea widely disseminated have been steadily decreasing to almost nothing. Literally, you can publish whatever you want on the internet and everyone with an internet connection can read your ideas. Literally, that is 2 billion people and just about everyone in North America. What else could an academic ask for?

    Seems to be that you are whining because certain people won’t be your friends.

    I suggest you start your own law review or your own society, such as The Federalist Society, part deux. Then you too can adopt a policy.

    Perhaps you can start with this: “If you can’t get you ideas accepted by the liberals at Harvard Law Review (where everyone wants to be published) then send us your paper and if it we judge it to be conservative enough, we’ll publish it.”

    Seriously, the barriers to getting your ideas published are incredibly low. Starting a blog is easy and inexpensive. Hosting a conference? Zoom calls and Google Hangouts are cheap.

    By the way, it’s hard to say that conservative thought hasn’t been successful despite whatever barriers you perceive in academia. Because of the efforts of Leo Leonard and the Federal Society, conservatives have come to dominate the Supreme Court and the federal judiciary, perhaps for the next fifty years.

    1. And don’t forget about podcasts.

      1. Check back with me in 6 months and tell me how many times Joe Rogan has been chased off an interview he wants to do.

    2. David Brayton, I like the idea of Josh publishing his own journal, based on his own unique approach. No doubt many could suggest a name for this new—and predictably profuse—publication. My own suggestion: South Texas Twaddle To avoid over-restricting Josh’s editing style, it’s probably wise to keep the word, “Law,” out of the title.

      1. If it’s all twaddle, what does that say about someone who consistently comments on the twaddle?

        1. Twaddle, taken to extremes, can deliver spectacle, at least when it takes you by surprise. I’m a fan of spectacle.

          Watching this previously interesting, and respectable, right wing blog self-destruct while Josh Blackman floods the zone so bad it drives out the better players is spectacle enough. It repays at least some of the cost in resentments. But it probably won’t last. When the surprise is gone, twaddle gets tiresome.

  12. If movement conservatives want to be treated with respect by our mainstream law schools, most especially our strongest schools, they need to ditch the bigotry, backwardness, and superstition.

    Otherwise, they should form separatist schools, applying their ostensible principles to an asserted market failure, and build strong conservative-leaning schools for vindication and profit.

    Or they should quit whimpering.

    1. You are the Grand Wizard of Religious Bigotry and Intolerance.

      What is the difference between your “beliefs” and the “belief” of some other person that you deride as mere “superstition”? The arrogance and self-righteous enmity that you express to individuals who do not share your self validating beliefs are repugnant. Your bigotry and intolerance are no different than the bigotry expressed by the KKK.

  13. If someone is looking at your race, they are racists.
    If someone is looking at your sex, they are sexist.
    If someone is insisting you accept their fantasies as facts, they are idiots.
    to quote Ayn Rand “A is A”.

  14. All diverse authors must submit a report on the geographical origins of their maternal mitochondrial DNA.

    1. Somehow I suspect a DNA test demonstrating ancestry from 3 separate continents is not going to count as “diversity”, while a DNA test demonstrating ancestry from 1 specific continent would.

  15. ” I know this innocuous development is a harbinger of something evil because liberals don’t like me” is sad.

    1. What the heck is “innocuous” about it? It’s never “innocuous” when an academic institution announces they’re going to use criteria unrelated to merit.

      And, no, “diversity” is utterly unrelated to merit.

      We don’t have to pretend that these anodyne phrases don’t already have established meanings. They’re talking about racially and ideologically discriminating.

      1. Let’s not pretend.

        Let’s talk about viewpoint-controlled censorship and discrimination (everything from hiring to firing, admissions to administration) at Notre Dame. And Ave Maria. And Regent. And Brigham Young. And Liberty. And just about every conservative-controlled campus in America.

        Save a moment to savor the partisan, viewpoint-driven discrimination repeatedly imposed by the Volokh Conspiracy.

        Carry on, clingers. More whining, please.

        1. Evidence to support your bigotry? Didn’t think so

            1. Evidence presented in the form of a “youtube” video.

              That was the most pathetic attempt to provide evidence, ever.

              Fake reverend, fake lawyer, and fake poll watcher. By the way calling yourself a lawyer when you’re not could get you in hot water. Carry on clinger.

              1. This blog attracts the clingers who don’t recognize when they are being mocked.

                1. Pot, meet kettle.

  16. You consider commitment for diversity in scholarship as a NOVEL idea?!?

    Sheesh….

  17. Progressive educators and their tens of millions of victims are in charge now, don’t you know? Took them about 50 years, but they won without firing a shot . . . game over for the greatest country ever.

    1. I don’t think it’s game over, but we’re in the final quarter and they have a substantial lead.

  18. It’s worth noting that any attempt to, for instance, racially balance the UC Irvine law review is probably prohibited by Prop 209

    1. Put Heriot and Volokh on it . . . they love that stuff.

      1. Sad, teary fake rev lost another battle.

      2. Whatever you think of the ban on affirmative action, it has now passed twice. State officials, including universities, need to follow it.

        1. How law-abiding of you.

        2. While that bans affirmative action in hiring and certain other decisions, I’m not sure the wording reaches as far as to limit the discretion of law review editors, even at a public university.

    2. Yes, but my understanding is that enforcement of Prop 209 is kind of… patchy. But that’s probably why they said “diversity”, but didn’t say anything about what sort of ‘diversity’ they meant.

      1. “patchy”

        That’s a good one.

  19. The end goal has always been idealogical purity. The Trojan Horse used to get inside was “diversity is our strength” and now they are switching up to “diversity is the only option.” Get ready for it to get worse. Much worse.

  20. I have a legitimate question for this motley crew (or Crue depending on your taste in music): for those of you that are practicing attorneys, do you ever read law review articles, or use them in your practice? I maybe peruse a single article per year. As a result, I could care less who publishes in them. The further legal academia removes itself from the practice of actual law, the less relevant it becomes. I can satisfy my intellectual curiosity with legal blogs, which tend to be more concise and better written anyway.

    1. Rare is the word. I might use one to cite in an appellate brief if there is an issue of policy or a vague statutory provision. Otherwise, not.

      Treatises, OTOH, are extremely valuable. If you want to become an expert on one point of civil procedure, half an hour reading Wright and Miller on that point will give you all you need to know for your practice.

      Same for my area of law, intellectual property. McCarthy on Trademarks and Unfair Competition, Nimmer on Copyrights, Chisum on Patents, and Milgrim on Trade Secrets, are indispensible.

  21. UC Irvine now clearly stating that certain articles got in not because of their merit, but because of a certain checkbox that they filled.
    Clear enough.

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