The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last October, I wrote about a controversial Bluebook proposal: Any case that involves slavery would require a parenthetical disclaimer. For example "(enslaved party)" or "(enslaved person at issue)." So far, this change has not come to pass. But with the hard-left turn of law reviews, I doubt there is enough resistance to block this change. The upshot of this policy will be to simply cancel certain citations. Authors will not want to be seen as promoting slavery-based jurisprudence. So those cases will simply fall into desuetude.
This weaponization of footnotes will not be limited to slavery. Journals will continue to impose more control over scholarship to pursue inclusion. Professor Brian Leiter writes about a referee report from a philosophy journal. The "very first comment" criticized the author for not citing diverse authors.
1. One of the first things I noticed is that not a single female author is being referenced or cited in this piece. Given that this is generally seen as problematic, I urge the author to make an effort to engage with some women scholars, such as [female professor X], who I believe wrote on [the topic of the essay] fairly recently.
Leiter offers a powerful rejoinder to this comment:
[R]acial or demographic equity in citations is not a value in scholarship; truth and knowledge are the only values. If past racism has resulted in neglect of scholars who can contribute to truth and knowledge in a particular domain, then the demand should be to name those scholars so that they can be studied. But equity-qua–demographic-diversity per se is not a scholarly value. It has a stronger claim to be a value in pedagogy….
Well said. Diversity is an important value. But it is not the most important value. It should not predominate over all aspects of scholarly inquiry. The obsession with inclusion will serve only to exclude thoughts out of the woke zeitgeist. This current trend threatens to stifle academy inquiry in dangerous ways.
So far, I have not had a law review editor tell me to add citations to certain authors to promote some type of gender or racial diversity. If I received such advice, I would decide if the citation was relevant. If yes, I would consider adding it. But if the sole purpose for adding the citation would be to check diversity boxes, I would resist the change.
There is also the converse problem. What if I cite a controversial author, but the journal asks me to remove it. There are many reasons why an author may fall on a "cancel" list. Perhaps the author took the wrong view on some social issue. Or maybe the author associated with the wrong people. Or maybe the author deigned to challenge some orthodoxy. Whatever. I would also resist any effort to remove a citation based entirely on the identity of the author.
Of course, I don't care to play these law review games. Other authors may not have that luxury. Imagine a journal makes an offer contingent on diversifying the footnotes. In other words, "We will publish this article if you include more inclusive footnotes." Would you decline that offer?
In the years ahead, I think it will become very difficult for conservative authors to publish in law reviews. Peer-reviewed journals are not much better. Look no further than the example Professor Leiter cited. The road ahead will be rocky.