The Volokh Conspiracy

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Prof. Andrew Koppelman (Northwestern) on the Emory Law Journal Controversy

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From his Chronicle of Higher Education article (registration required):

It is now notorious that the Emory Law Journal commissioned and then tried to censor, as "hurtful and unnecessarily divisive," an article that denied the existence of systemic racism. When the author refused to bowdlerize his piece, the journal rejected it. Two other contributors to the same issue of the journal withdrew their articles in protest. This has been portrayed as a familiar left/right fight, except for one detail: One of the authors who withdrew is on the left. Some have been asking, Who is that guy, and what was he thinking?

I'm that guy. I am urgently concerned about systemic racism, which I have written about extensively, but I withdrew to protest the illiberalism that has these student editors in its grip. That illiberalism is bad for the university and bad for racial equality. It reflects an increasingly influential conception of racial equality that is indifferent to the welfare of the people it purports to help. This isn't a left/right thing.

The law journal had invited papers for a symposium honoring Michael Perry, one of the most important living constitutional theorists. An invitation of this sort normally includes a commitment to publish if basic scholarly standards are met. One invitee was the University of San Diego professor Larry Alexander, whose piece engaged with Perry's work on racial discrimination. Alexander argued that the principal causes of Black poverty are not racism but the cultural factors that have produced family disintegration, which in turn have produced poor educational achievement and crime.

The Emory editors told Alexander that they would not publish his essay unless he deleted an entire section of his discussion. Their initial memo declared that "our comments are merely suggestions and you should feel free to incorporate or dismiss these suggestions as you see fit." It noted that "as a prudential matter, the refutation of the presence of systemic racism might be a highly controversial viewpoint." But when it became clear that Alexander would stick to that thesis, the editors evidently changed their minds. The next email was an ultimatum. It conceded that "there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer." But, they said, his piece was "hurtful and unnecessarily divisive."

"Crucially," they declared, "the discussion on racism is not strongly connected to your commentary on Professor Perry's work, which is the focus of the issue and the purpose behind the publication opportunity offered." (If you read the whole piece, you'll see that this is obviously false.) …

don't agree with Alexander's description of the world. I have fought with him in the past. (Jonathan Turley offers a good critique of his essay.) But it is a possible world, he offers evidence for it, and it is important to know whether he is right. The editors do not allege falsity or offer any evidence of scholarly dereliction. It's been claimed that he resisted editing, but the editors did not ask for his claims to be better supported. They demanded the deletion of the entire final third of the article….

The editors think that academic work ought not to describe what the scholar takes to be reality if revealing or calling attention to that reality is "hurtful" and "divisive." That notion, which is increasingly common, attacks the scholarly enterprise at its root….

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  1. If you are going to put the editing and management of a Law Review in the hands of children you should expect childest results.

    1. College students are legally adults.

      1. These are not college students.

        1. One year removed. The youngest editors are going to still be in their very early twenties.

          1. Point being?

            1. They’re not children. And while they’re not college students…they’re not that far removed from being college students. Gives you a sense of who runs legal journals.

            2. The point being, whether they are "children" or not they have neither the training nor the experience to edit academic journals.

              It really is a bizarre system.

              1. Law reviews aren't academic journals.

                1. But what are they then?

                  They certainly pose as academic journals, and authors - see Blackman, Josh - are happy to list their law review publications on their CV's.

                  I mean, I basically agree with you, because I think the reviews are full of BS articles, but maybe they serve a purpose.

                  1. " I basically agree with you, because I think the reviews are full of BS articles"

                    So are a lot of proper academic journals.

    2. Hey lawyer scumbags, how about a surgery journal run by second year med students? How about a journal about bridge building run by 2nd year Masters in Engineering students? They know shit. You are ridiculous, lawyer scumbags.

      1. The Dean at Harvard Law was an alcoholic. He was too lazy and too impaired to review articles. He got the brilliant idea, let's prank the students. Make them do the work for free. We'll tell them it is a great and sought after honor. They will go for it.

    3. Claims that something is too “hurtful” or “divisive” for publication are never in good faith, and are never neutrally applied.

  2. I haven't seen exactly what the editors said so perhaps this wasn't the gravamen of their feedback. But having read Prof. Alexander's draft, it seems to me that "don't call the guy we're trying to honor a Nazi" and "don't say that slavery was actually a good thing for everyone alive today" are reasonable notes, and spiking the piece a reasonable response if he was unwilling to listen.

    1. "But having read Prof. Alexander's draft, it seems to me that "don't call the guy we're trying to honor a Nazi" and "don't say that slavery was actually a good thing for everyone alive today" are reasonable notes,..."

      I didn't see those sentiments in the draft - could you highlight which parts of the draft you feel support that paraphrasing?

      1. CTRL-F found this:

        "The notion that races rather than the individuals who comprise them should be the loci of moral concern seems morally obtuse–-more in line with regimes such as Nazi Germany than with the literal ethos to which most Americans adhere."

        Which strikes me as true, but if I were the editor I'd suggest a less inflammatory comparison - like apartheid South Africa.

        1. And I suspect (using CTRL-F again) that this is the slavery passage referred to:

          "Third, Michael’s causal claims are shaky. For example, after centuries of slavery
          followed by years of racially discriminatory laws, the black family in the early 1960s was relatively intact. Black marriage rates were about the same as those of whites.24 The dissolution of the black family really begins in the mid-1960s with enactment of the so called War on Poverty. It is less a product of past injustice and more the unintended consequence of societal good intentions. Moreover, parallel trends have occurred among whites and Hispanics."

          1. But aren't both of those sentiments: (a) individuals should be viewed as individuals and not primarily as members of a race; and (b) statistically undisputed proof that black families experienced precipitous declines in marriage rates beginning in the 60s, mainstream enough and documented enough that their expression should not result in exclusion?

            For me, both points are simply and obviously true. But even if one were to take the opposite view on either, it's hard to think of a scenario where an honest gatekeeper would disallow those points to even be expressed.

            1. My second quote turns out not to be the quote which Noscitur a sociis was referring to.

              My first quote, though, was an accurate guess.

            2. Watching the bigots who flock to this White, male blog engage in the gymnastics required to attempt to defend a right-wing bigot like Alexander (and his friend and fellow right-wing bigot, Amy Wax) is entertaining.

              Carry on, clingers. So far as old-timey racism, superstitious gay-bashing, and obsolete misogyny could carry anyone in modern America, anyway.

              1. OK, races rather than individuals *should* be the loci of moral concern.

                Have I purged myself of bigotry now?

                1. The only way to help individuals during slavery and Jim Crow was to point out that a certain race was being oppressed. That's the only way change could occur.

                  1. Hmm...does this show that races rather than the individuals who compose them should be the loci of moral concern?

                    1. If this is how right-wing misfits wish to spend their remaining time (before replacement, by their betters), be my guest.

                  2. Seems to me that the way change could occur was by treating people as individuals.

                    1. Jesus you are dense. If you have a system of RACE-based slavery followed by RACE-based legal disability, you have to acknowledge the fact that it’s race based to undo it so those people can be treated like individuals. How the fuck do you propose getting rid of laws that are explicitly targeted at one race without bringing race into it, genius?

                    2. "How the fuck do you propose getting rid of laws that are explicitly targeted at one race without bringing race into it, genius?"

                      Repeal them?

                    3. Yeah and how did they do that? By showing how over and over again how wrong it was that one race was being treated terribly.

                    4. No, you're the dense one: When you've repealed all the laws discriminating on the basis of race, what are you then doing?

                      You're treating people as individuals.

                      Until you're doing that, you're still practicing racial discrimination.

                      You really do stop discriminating by stopping discriminating. It's literally the only way you stop: By stopping.

                    5. I’m not dense. Unlike you, I’ve actually studied American history thoroughly and not what I picked up from Prager U and Dinesh D’Szoua. So I actually know what was involved in Civil Rights struggles.

                      “You really do stop discriminating by stopping discriminating. It's literally the only way you stop: By stopping.”

                      Interesting theory. You should try it by being less of a racist sometime; Mr Dem. Plantation Birther.

                    6. Treating people as individuals . . . as Profs. Alexander and Wax do?

        2. The notion that races rather than the individuals who comprise them should be the loci of moral concern seems morally obtuse

          I don't get this.

          If one's race causes one to be mistreated then why shouldn't that be a locus of concern?

          And he slips that "rather" in when no one is looking. These are not mutually exclusive options. To be concerned about mistreatment of a racial group does not preclude being concerned about individuals.

          1. "I don't get this."

            That's right.

            "If one's race causes one to be mistreated then why shouldn't that be a locus of concern?"

            If somebody's race causes them to be mistreated, then you should care that THEY, as an individual, are mistreated. That should be the center of your concern, the mistreatment, not the reason for it.

            Is mistreatment somehow better if it's not racially motivated? Would it be better if the same amount of mistreatment were distributed differently? The racists obviously think that. Should you?

      2. And that is the case because the harm of disproportionate impact is not obvious. Is proportional representation of “races” an intrinsic good, one that should be pursued by the government unless the costs of doing so are compelling? Is disproportional representation of races an intrinsic bad? The notion that races rather than the individuals who comprise them should be the loci of moral concern seems morally obtuse–-more in line with regimes such as Nazi Germany than with the literal [recte liberal?] ethos to which most Americans adhere.

        Had there been no slavery, the ancestors of today’s U.S. blacks would have remained in Africa, most often as the slaves of other African tribes. And even more basically, in the absence of slavery, today’s individual blacks would not exist. That is, although blacks might exist in the U.S., the ones who actually exist here would not exist at all. For each of us is the product of a particular sperm and egg. Change the circumstances of conception ever so slightly, and a different individual is created. And slavery caused more than slight changes in the circumstances of conception that would have existed in its absence. Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off. People might be better off today had there been no slavery, but none of us, blacks included, would be.

        1. Thanks. FWIW, I don't think I would paraphrase those quite the way you did.

          1. How would you paraphrase them? I mean there is no way to read the last paragraph other than slavery was good for everyone today in the long run.

            "Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off. People might be better off today had there been no slavery, but none of us, blacks included, would be."

            "Slavery was actually a good thing for everyone alive today," is a completely accurate and honest paraphrase.

            1. I think, in his professorial way, he's suggesting that without horrific things in the past (slavery, rape, invasion), many of us wouldn't *be.*

              1. 1) It's obviously true so it isn't an interesting or deep point and is basically something some college freshman might say after a bong hit. 2) It obviously can't justify the horrendous event or give a reason efforts to address any ill-effects it still has.

                1. I haven't brought myself to read the whole article - it looks dull. Maybe it all adds up to slavery being awesome, for all I know.

                  I can't conceive of writing such a passage myself, unless I was illustrating a Really Deep Point about theodicy.

                2. *reason not to

                3. "address any ill-effects it still has"

                  There's the rub. How does one address the ill effects?

                  1. Or, back up a bit...how does one *identify* the ill effects?

                    1. Lots of smarter people than me have thought and wrote about this. I’m content just to say that: thinking and doing something about them is not the same as Nazi Germany in any capacity and the fact that some people exist today who might be healthy and happy is not a good reason not to acknowledge the tragedy of a historical evil and mitigate against continuing effects if they exist.

                    2. It's all about the something you pick.

                      When the Hatfields and the McCoys were feuding, you could have said, "A lot more Hatfields are dead, time to even up the score.", or you could have said, "Murder is wrong, stop killing each other.", and done nothing about the evening the score.

                    3. Brett, who is not racist, thinks that supporting slaves post slavery is "evening the score."

                    4. I think it certainly can be, but where are you going to find any slaves today to support, in the US at any rate? The most you'll find are people who had slaves in their ancestry several generations back.

                      Might as well posit that I should get federal food support because I had an ancestor starved out of Ireland during the potato famine.

              2. "I think, in his professorial way, he's suggesting that without horrific things in the past (slavery, rape, invasion), many of us wouldn't *be.*"

                Something like that. You can read those harshly or charitably. I try generally to tend towards the charitable end of the scale.

                Similarly, 'Michael Perry is a Nazi' strikes me as an uncharitable reading, while 'America traditionally views people as individuals with unique stories rather then reducing them to mere members of racial groups, like the Nazis did' is a rather more charitable reading.

                1. “America traditionally views people as individuals with unique stories rather then reducing them to mere members of racial groups, like the Nazis did' is a rather more charitable reading.”

                  Funnily enough the “charitable reading” is a completely historically illiterate take.

                  1. "Funnily enough the “charitable reading” is a completely historically illiterate take."

                    Can you help me out with that?

                    Is your objection that the Nazis did not view people as primarily members of racial groups, rather than evaluating them primarily according to their individual merits?

                    Or is your objection to the other half? It is certainly true that there have been times that Americans were lumped by ethnicity - Jim Crow being one obvious example, and 'No Irish Need Apply' being another. But certainly America is at the other end of that axis than Nazi Germany. It's not like the Manhattan project only hired WASP physicists, for example, in marked contrast to the German nuclear program.

                    Or to put it another way, suppose we draw an axis of 'tends to welcome immigrants of differing ethnicity' and put Nazi Germany on one end of the scale. We want to pick some countries to mark the other end of the scale - the countries that historically have been most accepting of other ethnicity. If you don't think America is close to that antipodal end of the scale, which countries do you think have historically been more welcoming of other ethnic groups?

                    1. “Have been times!?” Well that’s a comically absurd understatement about the reality of American history. Like saying there have been times when Jeffrey Dahmer didn’t follow the law precisely.

                      From the beginning until 1865 we had a race based system of chattel slavery in half the country which that half tried to enforce in the other half. “America” didn’t value individualism if the individual happened to be born into slavery. Or if their race put them at risk of being bound into slavery despite being free. The Constitution had to be amended after a massive war to end slavery.

                      And for those of the enslaved race who were free from bondage they were subject to legal restrictions in a wide variety of areas of life. Eventually reformers managed to undo some of these restrictions in the north prior to the civil war.

                      And then after the Civil War Black codes still existed. And although they were eventually confined to the South….those only ended 50 years ago only through federal intervention.

                      Let’s turn to Native Americans. White Americans typically did not care about individual natives living on land they wanted. They were violently removed further westward. They didn’t have citizenship until the 1920s! So whatever your individual merits…as a native you weren’t part of the body politic. (and even that grace didn’t end all the policies designed to ultimately destroy individual native culture through assimilation to a dominant white one)

                      We had limits on specifically on Chinese people. America as a whole didn’t view them as individuals who might make the country better when we needed immigrants…they tried to exclude them based on ethnicity.

                      Did individualism matter when we interred Japanese Americans? Not really.

                      Oh and just five years ago we elected a guy who literally wanted to ban Muslims from coming here.

                      America (or some Americans more accurately) has always claimed to be the place for the rugged individual, where merit reigned but throughout its history it engaged in pure ethnic and racial discrimination of the bluntest type. America simply does NOT have a strong tradition of not reducing people to mere members of racial groups. For so many people throughout our history, their individuality didn’t matter at all.

                    2. FWIW, I'm familiar with U.S history, including the warts.

                      Which countries do you feel have historically been better at treating people as individuals, or generally been a better world citizen?

                      Just saying 'every country has lumped people like the Nazis' seems a bit too reductionist to be useful.

                    3. “FWIW, I'm familiar with U.S history, including the warts.”

                      Are you? Because it didn’t sound like you were. Also: warts is still an undersell. A wart is a small blemish on the skin. America’s race-based failings are not small blemishes.

                      And you’re goalpost moving to which “countries are better” from “America has a strong tradition of not reducing things to race.”

                    4. Or is your objection to the other half?

                      I object strongly to the other half. It is not true that,

                      America traditionally views people as individuals with unique stories rather then reducing them to mere members of racial groups,

                      America not always, but quite often has viewed people simply as members of racial groups.

                      LTG explains it well.

                      I note you are reduced to claiming America "is not as bad as the Nazis." Well, OK. Not much of an argument in support of Alexander's claim.

                    5. "And you’re goalpost moving to which “countries are better” from “America has a strong tradition of not reducing things to race.”"

                      The actual quote was "America traditionally views people as individuals with unique stories rather then reducing them to mere members of racial groups, like the Nazis did". Note the last clause that you omitted. Looking at the big picture, I think that's true - I surely don't think America is as bad a Nazi Germany. America is spaced some distance away from Nazi Germany on that axis, IMHO. If you think America is just as bad as Nazi Germany, then we'll just have to disagree.

                      And, again, as we're ranking countries on the badness scale, I'm curious which countries you generally think have behaved better than America. If WWII Germany is a 10, would you put America at 9.5? 8? It doesn't make much sense to say countries all range from 9 to 10. If America is a terrible country, I'm curious which countries you think are good. What countries would you put down at 1?

                  2. "Funnily enough the “charitable reading” is a completely historically illiterate take."

                    How so? I mean, not all black people were slaves. And some black people owned slaves.

                    1. JFC.

                    2. He's literally right about that, you know. Even if him being right fills you with disgust.

                    3. What fills me with disgust is people like him and you who smugly and dumbly say “some black people” owned slaves as if that makes the entire history of race based slavery and it’s long aftermath okay.

                      If you don’t want to disgust me stop being so disgusting.

                    4. Like seriously: what do you hope to accomplish by saying this? America doesn’t have a racist past because some black people were free (free meaning not in bondage, other legal/social disabilities still applied)? Slavery wasn’t that bad because there were a minuscule amount of black slavers? Slavery wasn’t racist because of that? It didn’t have long term effects due to that? Is it simply white guilt? I mean it’s said as if you’re trying to push responsibility onto black people.

                    5. LTG,

                      You are dealing with morons and ideologues.

                      Reason doesn't work.

                      Neither TIP nor Brett are amenable to facts or logic that dispute their views.

                    6. Being reductive in service of whitewashing slavery are pretty bad, yeah.

                    7. "What fills me with disgust is people like him and you who smugly and dumbly say “some black people” owned slaves as if that makes the entire history of race based slavery and it’s long aftermath okay."

                      Really? Because what fills me with disgust, is when somebody reacts emotionally to objective facts, and tells me that the truth can't be uttered because it's bad. Because they've attached some stupid implications to it, and assume that anybody who tells that truth must mean those implications.

                      That sort of thinking is pathetically juvenile.

                      Nobody said that the entire history of raced based slavery and its aftermath is OK, and it's imbecilic of you to read all that into a simple and objectively true historical fact.

                    8. 'Really? Because what fills me with disgust, is when somebody reacts emotionally to objective facts"

                      This is really telling. You are clearly a sociopath. Bad facts about the world are SUPPOSED to lead to emotional reactions unless you are dead inside. How could you read a book about the Holocaust or the horrors of slavery and not react emotionally? If you can't do that you are fundamentally broken and no amount of cognitive behavioral therapy can fix you. The best thing is to warn others to stay away from you because you cannot and will not react appropriately to human trauma and will be willing to inflict it without much of a thought. You aren't just stupid...you're incredibly dangerous and I worry about the people around you. Sincerely.

                    9. "Bad facts about the world are SUPPOSED to lead to emotional reactions unless you are dead inside."

                      Good grief. Does reading about the rape of the Sabine women leave you weeping in the corner? Slavery was abolished in this country 156 years ago, if you have a significant emotional reaction to events that far back you need therapy.

                      But I sad "implications". You'd claim that anybody who makes note of this sort of historical fact must hold certain views, which is insane.

                    10. "Good grief. Does reading about the rape of the Sabine women leave you weeping in the corner? Slavery was abolished in this country 156 years ago, if you have a significant emotional reaction to events that far back you need therapy."

                      Fuck you, you absolute garbage person. Having an "emotional reaction" does not equate crying. If you can't understand that, you again prove my point that you are an emotionally stunted sociopath. You are truly a bad person and I've never once seen you deny it. Probably because deep down in whatever peppercorn of a soul you have left you know it too.

                      Again, I can't suggest you need therapy because none can help you. You are too far gone. You are a dangerous person. I would not want to interact with you in real life because to do so would put my health and safety at risk. I would advise other people around you to do the same.

                2. Similarly, 'Michael Perry is a Nazi' strikes me as an uncharitable reading

                  Well, equating people to Nazis has often results in a lack of charity.

                  The entire point of the essay (and the ostensible justification for its inclusion in the festschrift) is that Prof. Perry epitomizes the racial views that Prof. Alexander opposes. Calling those views - and thus, by extension, Prof. Perry himself - "in line with" Nazism is closer than I'd be interested in going, particularly in a piece that is supposed to honoring Prof. Perry.

                  while 'America traditionally views people as individuals with unique stories rather then reducing them to mere members of racial groups, like the Nazis did' is a rather more charitable reading.

                  Or you could simply make the point about individualism (a point, for what it's worth, that I agree with!) without a gratuitous and unproductive analogy to the Nazis of any kind.

                  1. "Or you could simply make the point about individualism (a point, for what it's worth, that I agree with!) without a gratuitous and unproductive analogy to the Nazis of any kind."

                    That's an editorial recommendation I agree with.

              3. I think, in his professorial way, he's suggesting that without horrific things in the past (slavery, rape, invasion), many of us wouldn't *be.*

                His premise is that, if history had played out even slightly differently before your birth, you would not have been born. The conclusion he draws from this dude-have-you-ever-really-looked-your-hands-level insight is that because of that, no black person who is alive today can legitimately claim to have been harmed by slavery.

            2. "Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off."

              It's hard to say what changing events in history would have caused. If you went back and killed baby Hitler, what would the world be like today? Idealistically, you avoid a second World War. Or potentially instead, you end up with a more competent leader in charge of a Fascist Germany...

              1. True, but a more competent leader would probably have halted the expansion of the German empire after conquering central Europe, and they would likely not have had his genocidal tendencies. It's quite likely that without Hitler, Germany would have won the war and still be a major power, but would be lacking the Nazi policies and might even be a bastion for freedom.

                Alternate history is an interesting concept, but it is inherently flawed beyond the scope of alternative battle tactics and minor policy directions because you have no idea which butterflies are flapping.

            3. "I mean there is no way to read the last paragraph other than slavery was good for everyone today in the long run."

              Huh? That's the hottest hot take I've ever heard. Read that last line again: People would be better off if there'd been no slavery, but they'd be different people. That's all he's saying. I mean, it's obviously true, and if there'd been no potato famine, somebody would be living in Ireland, but it wouldn't be me.

              But, so what?

              Now, if the editors had said, "Look, this isn't a high school philosophy course, maybe you could find something less sophomoric to focus on?" I'd be highly sympathetic.

              But it's not an evil point, it's just trivial and sophomoric.

        2. Each of us owes our existence to past horrendous events like slavery. This would also include the crimes perpetuated by Nazi Germany. Therefore the loci of moral concern being close to the those of Nazi Germany is actually a good thing because we would not exist without Nazi Germany. I am very smart, make me a tenured law professor please.

          1. I, in part, owe my existence events related to the Trail of Tears. Does recognizing that intellectually make me racist toward Native Americans, given my ancestry? Or suggest that I think that the TOT was totally swell?

            No, it doesn’t.

            1. If you said we shouldn’t ameliorate any of the bad effects of the TOT and that doing so was like Nazi Germany, and in any event we’re all happy and healthy today in part because it happened…I’d think you were suggesting it’s totally swell!

              1. Is the guy actually saying “let’s don’t ameliorate” or is he saying “let’s understand what the actual problems are and address those?”

                1. The latter, obviously. He's have been better off making his sunk costs argument directly, though.

              2. I think it's clear you don't really understand what changing history would cause.

                Hypothetically, without a Nazi Germany, a big bad evil to cooperate again, do the Soviet Union and United States instead get into a large scale nuclear exchange, ending human civilization? Potentially.

                1. Ummmmmm you’re right? I don’t understand the implications of the completely fictional idea of time travel.

                  But the fact that something worse might have happened other than what actually didn’t happen doesn’t mean the Holocaust was great, now does it?

                  1. And indeed, the author repeatedly writes, that they were horrible events. But you also need to admit that horrible events can end up having positive consequences.

                    If you can't see that, and resolve those differences, then I don't know how to help you.

                    1. I obviously see it. It’s just such a banal point that you don’t articulate it unless you’re trying to excuse something.

                    2. It was horrible. It happened in the past. Pretty long ago. But...things generally, oddly enough, turned out better for their descendants than if the bad thing didn't happen.

                      But....if you still want to bring up the bad things that happened pretty long ago. If you want to compensate the descendants for something the descendants themselves never suffered. Shouldn't you also take into account the benefit the descendant obtained?

                    3. things generally, oddly enough, turned out better for their descendants than if the bad thing didn't happen.

                      First, we have no way of knowing that.

                      Second, that's not how we evaluate history. Because that means there is no moral moment to any action, sufficiently far removed.

                      If I said the USSR wasn't that bad because it was needed to get the Volokh Conspiracy to be a thing, would that be an interesting point?

        3. That second paragraph is a humdinger.

          Had there been no slavery, the ancestors of today’s U.S. blacks would have remained in Africa, most often as the slaves of other African tribes.

          What is the basis of this? The US has had large-scale immigration from many parts of the world. Why would there not have been immigration from Africa as well?

          Change the circumstances of conception ever so slightly, and a different individual is created. And slavery caused more than slight changes in the circumstances of conception that would have existed in its absence. Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off. People might be better off today had there been no slavery, but none of us, blacks included, would be.

          This is just bizarre. So I only exist today because of certain horrific events in the past. In my personal case I can point to the Holocaust. So what? Does that mean I am not entitled to criticize the Holocaust, because I'm "better off" because of it? Really?

          I think the fact is we are entitled to say, "Blacks were made worse off by slavery and Jim Crow," we are allowed to think about groups as well as (not "rather than") individuals, whether he likes it or not. This sort of butterfly wing-flapping argument is ludicrous.

          1. "What is the basis of this? The US has had large-scale immigration from many parts of the world. Why would there not have been immigration from Africa as well?"

            Large scale immigration to the Americas was based on the capability of the immigrating power to engage in large scale trans-oceanic passenger transport. And the African powers at the time did not have that capability. When nations developed the capability, they then began large scale transport of people.

            This is why, for example, there was no large scale immigration of the Chinese to California prior to approximately 1850. The Chinese didn't really have the capability. Nor any large scale immigration of the people of the Indian subcontinent prior to about 1900. Same reason. The African powers, realistically didn't have the capability until at least 1950.

            1. WTF are you talking about?

              Ships are ships.

              1. It's a question of who owns the trans-oceanic ships, and why they ship passengers.

                In general terms, it was the European powers that owned the ships for most of the time in question (~1600 to ~1900) (With the major exception of the US itself). The sub-Saharan African powers didn't HAVE trans-Atlantic ships. So, if Africans were going to immigrate to the Americas, they would need to do it on European ships.

                So, you need to ask yourself. Why would European-owned ships travel to Africa, pick up African immigrants, and give them passage to the US? What benefit was it to the European ship owners? Were the Africans going to pay transit fees in excess of that that Europeans would? No.

                1. What is your thesis here? Because it looks a lot like 'slavery was good.'

                  1. No, it looks like you've got this default, "Anybody who makes a point about race that's not mine must be praising slavery" reflex.

                    The point is just that, as a matter of historical contingency, absent black slavery, Africans would have almost entirely stayed in Africa, because they had no way of leaving on their own, and nobody else would have had a financial incentive to move them around without slavery.

                    That's not praising slavery unless you, for some obscure reason, have this unstated premise that Africans getting spread around the world is a good thing, (Rather than totally neutral.) and thus claiming something accomplished it is praising that something.

    2. I know that Jon Adler said it was a pretty weak piece, and others have been much harsher. I wish someone here would post on the content of article itself instead of just the Journal's reaction. IANAL and am not equipped to evaluate things like that.

      1. You don’t need to be a lawyer to notice he said some completely non-sensical/non-legal things that didn’t merit publication.

        1. You might, but then you might stop and think about the fact that "he said some completely non-sensical/non-legal things that didn’t merit publication" was not the reason given for rejecting the article.

  3. Yeah systemic racial discrimination. Try to be a white guy and find a guy in Hollywood. Or get Covid and have doctors laugh at you because you are white and not allowed BY POLICY to get treatment.

    1. "Try to be a white guy and find a guy in Hollywood"

      What does this mean? Have you been striking out on Grindr lately? If so, it might be for other reasons than that you're white.

    2. Prof. Volokh -- with Prof. Alexander, Prof. Wax, and a few others -- feels your pain.

      Mainstream academia mocks your stale, ugly thinking and awaits your replacement.

  4. I know that we are a divided country right now in many ways, but could we at least come together and agree that "refute" is not synonymous with "dispute" or "disagree with"? It means "disprove."

    I know that I and my band of pedantic brothers have lost the fight on compose vs comprise, fortuitous vs fortunate, torturous vs tortuous, and many others, but there must be a hill to die on lest all be lost.

    1. Oh great, a literal grammar Nazi!

      I'm kidding, I'm kidding. You make good points.

      1. Mr. Pedantic would point out that he is being a usage/vocabulary Nazi. He only does grammar on weekends and holidays.

    2. I agree with your point, although I'm not sure the usage here is incorrect—presumably Prof. Alexander does take the position that the existence of systemic racism has been refuted by the evidence, not just called into question.

      1. They wrote that "as a prudential matter, the refutation of the presence of systemic racism might be a highly controversial viewpoint."

        Leaving aside the generally bad writing (and Alexander's piece was no picnic either), the only way that sentence begins to make sense is if "refutation" is read to mean something like "denial."

        1. You'd think a profession explicitly dedicated to the art of persuasive writing would produce better writers. Everyone involved should be fired based purely on the quality of their prose.

    3. That slippery slope disappeared under the avalanche of pretending pronouns were subject to whims and not rules of grammar.

  5. Yea the editing is just not needed. Have the debate. Actually his point seems well taken.

  6. Sorry, Koppleman. If you're going to defend this guy Alexander against being canceled for his arguments that systemic racism isn't a thing, then you are objectively pro-racist.

    Please report to the Party committee to schedule your struggle session.

  7. The only way a white man in Ameriduh can get ahead is to chop his balls off or convert to Islam!

    That said, it really doesn’t matter if systematic racism exists or not because statistics show a huge disparity it the financial health of descendants of American slaves versus all other Americans. So my proposal is to give descendants of American slaves and Native Americans as much money as we gave Afghanis over the last 20 years. So we essentially spent $40k per Afghani the last 20 years and so we should give every Native American and every descendant of American slaves between ages 30-50 a $40k lump sum and those older and younger $10k and free college and more Social Security. That would cost $1 trillion and it would reduce crime and increase GDP growth unlike all of dollars we flushed down a toilet in Afghanistan.

    1. I propose a cool half million for every decadent of slaves, but they have to give up US citizenship and move to the African country of their choice.

      (and if you think the government wastes money just on wars....well...look a little closer I suppose)

      1. "I would pay a lot of money not to have to be around black people (who I assume should go to Africa and not somewhere else)" is a totally normal and not-at-all racist take.

        1. This is a not-at-all racist blog (never mind the odds against such a White, male Volokh Conspiracy), just as it is an "often libertarian (with no mention of conservative)" blog.

          Similarly, it is a free speech champion blog that engages in repeated, partisan, viewpoint-driven censorship.

          All of which seems . . . complicated.

          1. When was the last instance of censorship? I thought they'd gone to a "mute" option, allowing anyone to censor whoever they wanted, as far as their own reading was concerned.

            I've muted some people already, there are some I *ought* to mute but it's too much fun toying with them.

            1. I just accidentally flagged a comment on my iPhone because it’s like a “hair-trigger” and it doesn’t ask you if meant to actually flag the comment.

              1. I mean the "mute" function, which is reversible, unlike the flag function.

              2. I wouldn't worry about it. No one at Reason pays any attention to those flags.

                1. I wouldn't be so sure about that. I think, rather, that they only start paying attention if the same comment gets multiple flags.

        2. I realize that sarcasm is hard to discern on the internet, but what I did was a far fascist take on Cremmington's crappy idea, as satire.

      2. So where do you want the white coal miners Trump paid $10 billion in reparations to move?

  8. Coca-Cola University's actions would be best dealt with by taxing their bloated taxpayer subsidized endowment and large tax exempt real estate holdings.

    Campus is in "Atlanta-city section of Druid Hills [which] is one of Atlanta's most affluent neighborhoods with a mean household income in excess of $238,500". 631 acres should yield quite a good tax yield for Atlanta schools.

    1. What a waste. Really? throw it a schools?
      How about tuitions at a learning institution of the parents choice?

      1. "How about tuitions at a learning institution of the parents choice?"

        If that is what Atlanta wants to do, fine. Local property taxes should get divided as the locality decides.

    2. Bob replying to every post about a school with researching that school's campus and endowment and whining the government should seize them is the least surprising development.

  9. There seems to be some common ground here.

    Prof. Koppelman and the editors he criticizes seem to agree that conservative Prof. Alexander is a deplorable racist.

  10. There’s a long history of this.

    John Calhoun decried those disruptive, anti-social abolitionists whose message of hate and bigotry caused so much pain to oppressed American Southerners, causing them to fear for their safety.

    He have welcomed these editors. So would Asa Earl Carter, who knew how to disguise Confederate propaganda by pretending to describe a minority currently in favor.

  11. One would think the Volokh Conspirators would be smart enough -- after observing the record -- to refrain from voluntarily writing about race at this blog.

    One would be wrong.

  12. Koppleman is a strong proponent of central planning and "expert" run federal govts which can determine your rights. He reminds me of the old soviet apologists in the US when I grew up in the 80's. Bolshies to the heart. And as for "systematic racism" verus "culture"...pretty obvious culture is a bigger determinant of poverty in any country you look at. Oh and please name the names of elected officials who are denying the Bill of Rights to Americans based on race, creed or color or for that matter our natural rights? I'd like to donate money to their challengers. Time to run some articles from libertarians like Tom Woods, Scott Horton, and other real defenders of liberty

    1. Pro-slavery Tom Woods is as "libertarian" as Arthur Kirkland.

    2. Oh, he is, and he has a lot of views that I think are lunatic.

      But the thing is, he actually think's he's right, and can persuade people of that by open argument, so he's not afraid to let people who disagree with him speak. I've corresponded with him occasionally, and he's quite polite in coping with disagreement.

      So he may be wrong, but he's not lost, yet. There's still some hope for him.

  13. Eugene Volokh is a sadistic, unethical liar of the highest order.

    He gets paid by Google so that's why he's purposely ignores the pain to victims of online harassment, cyberstalking, and related crimes. He doesn't care because he gets richer if laws are not passed to make Google remove harmful material. But these laws are necessary because otherwise victims have no recourse, and criminals are having a field day online. Eugene helps criminals and lines his own pockets with money.

    People on this forum who support Eugene Volokh are nothing but domestic terrorists who support using "speech" that is part of criminal conduct to justify online harms. America is screwed if people don't have the civility to agree that things like online harassment, cyberstalking, doxing are malicious and illegal. It means the people in this country have totally lost it and have no value of decency whatsoever. Free Speech is being weaponized to hurt the fabric of society and people are drunk on it.

    Eugene Volokh is a sadistic piece of shit for trying to harm the US social fabric and leave victims of heinous online crimes with no recourse.

    If you look through these forums, many others have called out Eugene's hypocritical analysis. The sadistic guy (Volokh) seems to take extreme pleasure in people getting their lives destroyed by harassers online and coming out and defending the harassers while leaving the victims to hang. He takes pleasure when people lose their jobs and livelihoods over doxing. He takes pleasure when plaintiffs cannot file suits using a pseudonym even when they are doing so to protect being re-victimized by the court system. He does not ever talk about how malicious the perpetrators are - they use VPN to hide their own privacy while purposefully, intentionally trying to destroy the lives of innocent victims. He never talks about whether it's fair or not for perpetrators to be able to hide behind "Free Speech" while all the friction to justice in the legal system fall on innocent victims. He never talks about how Section 230 has enabled intermediaries to contribute to the abuse by not removing harmful content in time. He never talks about the suicides that come with cyberharassment and bullying and how victims cannot ever get away from the tormentors. He doesn't give a shit, that's why he's a psychopath that is dangerous for society.

    Most people who take an absolutist view on the 1A have low empathy for people's sufferings, and are obsessed with defending the rights of a bunch of pervs, assholes, psychos, and low-life criminals of society who do not deserve defending and should be punished (fines or jail or both). Bad people deserve to be punished, but Eugene is advocating to punish the good people instead. Eugene Volokh is a grade A sadistic liar and a borderline psychopath based on his behaviour. He enjoys seeing people in pain and then coming out with his BS "Free Speech" arguments to make victims suffer more. You can see it in his eyes, he loves to destroy people using the "Free Speech" shield.

    Eugene Volokh's approach would give victims of malicious targeted online harassment NO legal recourse, even if their lives have been turned upside down by the malicious stalking or harassment from these individuals, and the speech does not implicate public interests and are purely aimed to harm the victims. For Eugene, Free Speech trumps all - deaths, suicides, victims be damned.

    Volokh has been trying his best to strike down all laws that would criminalize malicious online behavior like doxing, cyberstalking, harassment. This guy is grade-A liar and a psychopath who is harmful for society.

    Volokh purposefully ignores talking about the huge impact to the lives of victims of cyberharassers who target these people for years because the harasser has a mental issue. The reality is that Free Speech should be balanced with safety and appropriate privacy for citizens online, otherwise it's been weaponized by sick and sadistic bastards and criminals, and Eugene is fighting hard for these sadistic bastards and criminals to keep harming people.

    Eugene has never given two shits about the victims of cyber-harassment, never in any of his papers does he even consider the unique nature of the internet and the ability for malicious actors to ruin private individuals who are not in the public eye. Eugene Volokh has opposed laws banning doxing, revenge porn, Section 230 reform, etc... anything that would put more legal responsibility on platforms, ISPs, and intermediaries to make their products safer for people and to balance Free Speech with privacy.

    That's what's wrong with the USA today, it's maniacal focus on Free Speech to the extent of allowing social harms is what will destroy this country. All the countries around the world like EU, UK, Hong Kong, Australia, NZ, Canada, Brazil, Argentina are all passing legislation to criminalize doxing, online stalking, online harassment as it should, as these are crimes against human dignity. Is the right to be "free from harassment" not a fundamental right? Eugene doesn't think so. He fights for criminals to continue harming people online. Eugene is a threat to the American public and to the future of the country. He is basically fighting for America to be lawless online. Why should something be legal online when it is illegal offline?

    Volokh is a dishonest liar and sadistic human being with no ethics or morals. He only cares about superficial "speech", with no understanding (or even effort to understand) the fact that the internet has made it possible for anyone to use "speech" to wreak another's life, with or without justification, and many times, purely out of spite. This is why cases of cyberharassment, doxing, cyberstalking, revenge porn, blackmail are going through the roof, yet Eugene doesn't say a word about this. Has Eugene Volokh ever honestly asked himself, is it fair that the OFFENDERS CAN CONVENIENTLY HIDE BEHIND THE EXCUSE OF FREE SPEECH BUT WRECK HAVOC TO THE EMOTIONAL AND PHYSICAL LIVES OF THEIR VICTIMS? Does Eugene give a damn? This is part of the problem. Free Speech should only be free to the extent your rights don't interfere with those of others to live their lives free from your interference. "Your rights end under my nose".

    Yet Eugene doesn't care about the victims, the people who are harmed by malicious, low-value-add free speech that is solely meant to harm and torment private individuals. He wants every single law that would help victims of these crimes get redress to be cut down, so that criminals can run freely on the internet, and maximize the lethality of revealing victim's private information, doxing them, causing them emotional and social upheaval. The real reason Eugene supports this dangerous view is because it enriches Big Tech like Google, which then give kickbacks behind the scenes to Eugene Volokh. Eugene indirectly makes money from the pain and suffering of victims.

    Eugene Volokh is an emotionless being who doesn't weigh both sides of the arguments. For this robotic, emotionless “lawyer”, it's either Free Speech or nothing. His textualist interpretation of the First Amendment doesn't take into account that the Framers likely never even imagined the advent of the Internet, in which case an overly expansive view of the First Amendment can actually cause social harms because there is no barrier to entry, no cost of publishing cheap, harmful, malicious speech. Combined with Google's search engine, this means any malicious actor can type harmful things about someone, with or without justification, and this has a disproportionately large and negative impact on the victims' life, just for the sake of protecting the speaker's "freedom". But no consideration is made to balance the rights of the speaker against the rights of the victims, including the right of the victim to be free from harassment, free from stalking, privacy rights, freedom from intrusion into their lives. These are also Constitutional Rights (4th Amendment and elsewhere) Eugene ignores all of this and still adheres to his sadistic and dangerous view that it's all about the speaker and the rights of the victims be damned, even if they are bullied to suicide.

    How come Eugene has never addressed the fact that cyber-harassment and cyberstalking hurt and suppress the FREE SPEECH rights of victims? Isn't that a violation of the free speech rights of victims? Not surprisingly, Eugene is completely silent on this. That’s because he has an ulterior motive.
    Eugene Volokh's views are dangerous to the social fabric of America.

    The fact that no one on this forum, including himself, can respond to my points in a rational way shows that Eugene himself knows my arguments to be correct. I've exposed him as a biased, partisan, dishonest mouthpiece of Big Tech (especially Google), not dissimilar to other dishonest organizations such as the Electronic Frontier Foundation (EFF), who wants to strike down consumer protection laws online to enrich themselves at the expense of protecting Americas. Eugene is a dishonest individual with a hidden agenda to enrich Big Tech. He doesn't care about Free Speech at much as you think, what he cares about is making money by peddling dangerous views. If you notice, all of his views are exactly what Google would like to see, and he has written papers directly funded by Google absolving Google of all platform/ISP liability.

    Prove me wrong Eugene. Your sad and pathetic lack of ability to rationally respond to my points suggests you admit them to be true.

    Prolonged cyber-harassment, multiple instances of doxing, prolonged cyberstalking that can be shown to have malicious intent, will be categorized as "courses of conduct", and not "speech", hence will not receive First Amendment protections. They will be prosecuted for the crimes against individuals that they are, and malicious online stalkers who try to stay in the shadows and destroy innocent victims' lives will be locked up and fined, or both.

    If telephone harassment is illegal in states like California (PC 653m), then why the hell is doxing and online harassment NOT illegal and a crime? Makes zero sense.

    What's your view on this Eugene Volokh? Do you just think the world is better off if cyberstalkers are allowed to run amok and damage the fabric of society?

    Stalkers who use the anonymity of the internet to hide in the shadows, hide behind Free Speech, to try to ruin people's lives, are cowards and scum of the earth.

    The people who actively help these scum to hide from the law and hurt their victims without legal recourse are worse than scum.

    Volokh's interpretation of the 1A is borderless sadistic.
    Under Eugene Volokh’s asinine interpretation of the First Amendment, there would be NO such thing as cyberstalking or cyber-harassment! These crimes would simply not exist in his world. Because these actions are performed with words, Eugene would have the 1A apply to anything that involves words (or by extension, pixels). No course of conduct that involves typing words on a screen would be subject to any civil or criminal liability regardless of content, form, or intention. This mean in Eugene’s warped world, revenge porn, doxing, public disclosure of private fact, privacy violations, even swatting would be perfectly legal, and even encouraged!

    Ludicrously, he argues that these malicious acts are actually “valuable” because they provide value to “at least some people.” That’s a BS argument, because anyone can argue that say doxing material provides value to “someone” – yeah, the doxers and the criminals doing the harassment of course! A person’s credit card can be posted and it would provide value to someone, the thieves. A person’s revenge porn pictures can be posted and it would be obviously valuable to countless shady people on the internet. Eugene’s 1A internet speech test is: as long as the information posted is “of value” to someone, that content doesn’t qualify as harassment! This insanely warped logic is beyond asinine that I wonder how Eugene can say this with a straight face. There is no discussion at all from him on the rights of the victims and their constitutional right to be free from malicious harassment (4th Amendment). Eugene Volokh is borderline sadist who just wants to see people’s lives get wrecked and he takes enjoyment in seeing victims suffer.

    No civilized society would just let victims take the brunt of harassment while online criminals can get away by hiding behind a warped definition of the First Amendment. If the constitution says “Congress shall make no law” then maybe the 1A needs a new interpretation in the age of the internet! Because the current approach is leading to very bad social results and instability when people can just say whatever they want online with no liability. Volokh is insane.

    Eugene Volokh is dangerous to the public safety and to America. This guy is harming victims of cybercrimes. He should be arrested and tried for treason.

  14. Two things can be true:

    1) The won't-someone-please-think-of-the-children-we-need-a-safe-space reaction of the law review staff was unprofessional and illiberal.

    2) The piece itself was really really bad.

    1. I've read the piece and cannot find it 'bad.'

  15. God the stupid thing is that on alleged libertarian site like Reason debating the presence of systemic racism is a topic that some want censored.

  16. "The editors think that academic work ought not to describe what the scholar takes to be reality if revealing or calling attention to that reality is 'hurtful' and 'divisive.'"

    Perhaps sound scholarship, like good art and good sex, is supposed to make someone a little uncomfortable.

  17. Well, the real issue here is decision-making by the editors, but there is room for comment on the article's premise too.

    >cultural factors that have produced family disintegration

    My mother taught in a WV school. One exercise was filling out an imaginary birth certificate. The white students looked at the slot for father's name and said oh, we don't need that.

    Perhaps, just perhaps, we're seeing the effects of long-term unemployment across multiple racial groups. Or it could be cultural factors, like how single motherhood is no longer a scandal, but those are multi-racial too.

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