The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Are Duke Law Faculty Forcing a Student-Run Journal to Publish an Offensive Article?
It does not seem that way, despite some reporting to the contrary.
The Above the Law headline is flashy: "Student Staff Resign After Duke Law School Faculty Try to Force Anti-Trans Article Into Journal." The subhed declares "Pretty sure this student-run journal is supposed to be… student-run." The story begins:
Duke Law School Faculty have incited a turf war with the student staff at Law and Contemporary Problems, the school's oldest law journal. At the heart of the dispute is the Faculty Board's insistence that an upcoming "Sex in the Law" issue include an article by UK philosophy professor Kathleen Stock. As Stock has spent the last few years aggressively promoting herself as the professor willing to rubberstamp whatever anti-trans sentiment will get her a media interview, it's not exactly a mystery how she intends to use the student journal as a vehicle.
Although the ATL story has lots about Stock, it says nothing about the actual content of Stock's article.
The ATL story certainly sounds bad, as most law journals are led and managed by students, with minimal faculty supervision (let alone control). Forcing student editors to publish an article would be quite a breach of journal norms, but is that really what occurred? As it turns out, there is much more to this story than the ATL story suggests.
When I saw that the journal in question was Law & Contemporary Problems, my antenna went up. This is not the typical student-run journal. To the contrary, it is a faculty-run journal dedicated to publishing symposia on "contemporary problems." The way things work is that academics propose symposia to the journal, and such symposia are expected to present a range of viewpoints. Students do the basic editorial work, but unlike with normal student-run journals, editorial content decisions are made by the faculty board and the "special editors" of accepted symposia (as is detailed on the journal's website). Indeed, these guidelines make clear that only the faculty board can reject an article, and further explain that while student editors will help with line edits and the like, they "will not, however, suggest any substantive changes to the article," let alone make substantive editorial demands.
In this case, the board received a proposal for a symposium on "Sex and the Law" put together by Duke law professors Doriane Coleman and Kim Krawiec. This symposium was to include authors representing a range of viewpoints.. One contributor was to be Kathleen Stock, a philosopher at the University of Sussex in the UK. who is a controversial, if also misrepresented, figure in debates over sexuality and gender identity. [I will insert the names of the other contributors once I've confirmed them.]
When the symposium proposal was under consideration, some student editors objected to including Stock. In an effort to be sensitive to some student concerns, the faculty board sought input from the existing editors of the journal before making a final decision on the symposium as a whole. At no point did the faculty board consider excluding Stock. Given the opportunity to express input on whether to publish the symposium with a contribution from Stock, the then-serving student editors voted in favor of publication, and the faculty board accepted the symposium. This was the state of play last Fall.
Fast forward to 2021. A new student editorial board took over. The new board, unhappy about its predecessor's decision, tried to reverse course and excise Stock from the symposium. Although the symposium had been approved by both the faculty board and the prior student editorial board, some students were sufficiently upset with the Stock contribution that they wanted to remove it. As should not surprise, the faculty board refused. Some students were unhappy with this decision, and several opted to resign from the journal.
The faculty board, for its part, sent out the following notice to students:
Like the broader institution of which we are a part, Law and Contemporary Problems is committed to the vigorous and open exchange of ideas. The journal publishes issues that engage with matters of contemporary legal importance and feature contributions by a range of scholars in different disciplines. The issue on Sex in Law was approved in Fall 2020 by both the faculty advisory board and the 2020-2021 student editorial board after extensive discussion. The current student board members have recently asked that one of the pieces in that issue be removed. We respect the concerns and commitments of the students who have chosen to resign, but what they have asked of us is inconsistent with the journal's core scholarly mission
Assuming there are not other relevant facts about which I am unaware, it seems to me that this is far from the faculty takeover of a student journal that ATL suggested. It further seems to me that the faculty editors did nothing wrong. To the contrary, they sought greater student input than the journal's current practices require. At the same time, the faculty board held firm to the principles upon which academic discourse is based--the open exchange of ideas and viewpoints--while also refusing to allow the journal to breach its commitment to publish this symposium--a symposium that is largely filled with contributions that takes views quite different from those advanced by Stock.
One final note: I have not seen Stock's contribution to the symposium, but it would not matter. The symposium's special editors and the faculty board are entrusted with responsibility for evaluating the quality of symposium contributions at this journal, not the students, and publication of an individual symposium contribution should not be canceled due to disagreement with the argument it presents.
