A Kerfuffle at the Columbia Law Review

Misbehaving editors intent on publishing ideologically driven claptrap provoke a controversy.

I have an op-ed in the Washington Free Beacon about an ongoing controversy involving the Columbia Law Review. It begins:

Law reviews are typically sleepy, student-edited journals that publish turgid scholarship. The articles may be read by specialists, and they are often read by no one beyond the author and editors. But Columbia University law school's law review has received a rare burst of public attention this week.

According to various media outlets, the law review's board of directors, composed of faculty and alumni, tried to censor an article critical of Israel. Except that's not what happened at all. The true story involves a faction of the law review secretly breaking all procedural rules and customs to publish a piece of ideologically driven claptrap.

I explain the relevant chain of events in detail at the Beacon link.

Comments

[loki13]

I think that the op-ed (in the Washington Free Beacon, because of course) suffers from unnecessary rhetoric ("cabal" and random shots at DEI and social justice). Which if they weren't included, would have led to a better and more persuasive piece as opposed to being persuasive to people who would already agree with you.

But fundamentally, I think that the substance speaks for itself. The board did not censor the article, they reasonably asked for it to be held back because there were very serious concerns about the process - and that the regular process had been subverted in order to publish this piece. And despite the board's intervention, and the apparent agreement to it, individuals chose to publish the piece on the website and cry censorship.

As an aside, I found the article and tried to read Part III (which was supposed to be the law-like substance, I guess, based on the abstract). Wow. That .... no bueno. I've read some truly terrible law review articles (back in the day I had to read a LOT of them since I spent 2.5 years on the law review) ... but this takes the cake.

Look, if you want to publish this, knock yourself out. It's a free country. But don't abuse your position to stealth-publish it using the imprimatur of a well-respected law review. If it wasn't good enough to survive the normal policies and procedure (and oh lord, it certainly wasn't!) ... then that's the way it is.

[Estragon]

“unnecessary rhetoric”

He did take out the “claptrap” dig he had in here when he first posted this earlier so… baby steps?

[Krayt]

I looked up the origins of the word. Apparently it's originally BS fishing for applause.

Not unlike modern clickbait memes on the Internet.

[Sarcastr0]

Thoughtful as always, Loki.

[David Nieporent]

As an aside, I found the article and tried to read Part III (which was supposed to be the law-like substance, I guess, based on the abstract). Wow. That …. no bueno. I’ve read some truly terrible law review articles (back in the day I had to read a LOT of them since I spent 2.5 years on the law review) … but this takes the cake.

What Prof. Bernstein doesn't mention is that this is the second time this has happened with this author on this topic! It came up with respect to Harvard last year:

https://www.theguardian.com/education/2023/nov/22/harvard-law-pro-palestinian-letter-gaza-israel-censorship

The facts aren't identical; HLR wasn't holding out the piece as a law review article per se, but rather something more akin to a blog post, but still published under the auspices of HLR. But the same thing happened: it was posted, and then some people said, "This is antisemitic" and others said, "Yay, social justice," and others said, "Wait a minute; this is very not good," and it was depublished, and then published in a left-wing outfit (in that case, The Nation).

[Kenneth Almquist]

Even without the rhetoric, Bernstein’s article still wouldn’t be terribly persuasive to people weren’t already inclined to agree with him. Bernstein links to the AP coverage but otherwise ignores it.

https://apnews.com/article/columbia-law-review-israel-article-backlash-da2f924cddec4593b4f17b8baf500969

Bernstein doesn’t even attempt to make the case that we should take the take the word of his anonymous sources over the word of student editors willing to speak on the record to the AP.

[zztop8970]

"The Columbia Law Review Board of Directors received multiple credible reports that a secretive process was used to edit Toward Nakba As a Legal Concept" - are you saying the Columbia Law Review Board of Directors are lying?

[Vryedni]

I think that the op-ed […] suffers from unnecessary rhetoric […] which if they weren’t included, would have led to a better and more persuasive piece as opposed to being persuasive to people who would already agree with you.

That’s the signature David Bernstein own-goal. In the nearly two decades I’ve been reading this blog, no other contributor, and maybe not even all the others combined, have snatched as much over-the-top belligerent cant from the jaws of otherwise persuasive argument. And yes, that includes Calabresi and Blackman, whose arguments, contra Bernstein’s, are as unhinged as their rhetoric. And yes, it also includes past luminaries such as Lindgren and Kontorovich, for the same reason. And don’t get me started on some of the guest bloggers… but same.

[Dr. Ed 2]

It's time for napalm -- this is just one more example of how higher education has been destroyed.

[Bill Poser]

It appears that the Board has now knuckled under and published the article, still without it undergoing the normal review process, and without an editor's note to that effect.

[loki13]

That explains why I was able to locate it, and on the Law Review's website.

I did find a link to the following statement. It is what it is. The piece that was published speaks for itself- and it says nothing good.

STATEMENT FROM THE CLR BOARD OF DIRECTORS

The Columbia Law Review Board of Directors received multiple credible reports that a secretive process was used to edit Toward Nakba As a Legal Concept. Some individuals reporting exclusion expressed concerns with the process and the denial of their opportunity to provide input. The Review’s editorial processes are intended to allow all members to engage with the scholarship that the Review publishes and with one another. That engagement is central to the Review’s twin aims of publishing the highest quality legal analysis and educating the next generation of lawyers. Upon learning of this exclusion, the Board of Directors sought to delay publication by several days to permit the excluded members to read the piece and engage with their colleagues before the piece was published. But the piece was published immediately despite the Board’s effort. The Board of Directors traditionally has no role in deciding what scholarship the Review publishes, including this piece. Rather than delay the publication of the May issue any further, the Board of Directors memorializes for now its concerns with the process and its long-term goal of protecting the integrity of the Review. The Board of Directors looks forward to engaging further with the Administrative Board on this matter.

[Bill Poser]

Ah, interesting. So there was a note, though it only mentions the exclusion of some editors and not the reported failure to submit the article to review by external editors who are not merely law students.

[Commenter_XY]

Will it make me grind my teeth reading it? Sounds like it.

[Bob from Ohio]

Life's too short to bother.

[loki13]

Probably. But then again, it's practically unreadable.

Seriously, I tried to read the "law" section ... dire stuff. Really dire stuff. And I am used to reading really bad law review articles!

[Commenter_XY]

loki13, thanks for the tip. I'll skip reading the article. 😉

[TheAmazingEmu]

Your article raises good points that are undermined by its word choice. Regardless of whether "cabal" is a valid word to use, it is an unnecessarily polarizing word that undermines the credibility of the article.

[David Bernstein]

It was literally a cabal, "a secret political clique or faction." Do you have a better word?

[DaveM]

“While different interventions highlight different features of the Nakba, common ground among them is the idea that 1948 was a foundational moment that has restructured Palestinian lives and continues to subject Palestinians to various forms of violence. Taken together, these articulations provide a rich and organic corpus that theorizes the Palestinian condition. The framework of the ongoing Nakba is thus an overarching concept that captures the totality of the Palestinian experience across time and space, one in which the Nakba features not as a rupture but as a structure. And yet, the entanglement of the Nakba in law has been scarcely theorized. This Article attempts to ask and provide an initial answer to the question of how we might conceptualize the ongoing Nakba in legal terms.”

Oof dah. Mercy, this is tedious stuff. My pity for law students has grown. This quote is from page 76 -- and there are 106 pages just like this.

Source: https://taxprof.typepad.com/files/eghbariah.pdf

[ReaderY]

The Birth of a Nation people got the point across so much better!

[Rev. Arthur L. Kirkland]

If the article is "pro-Hamas," as some have suggested, it likely is not worth reading.

If it questions the immoral, illegal, superstition-drenched, bigoted, war-crimey, right-wing belligerence being conducted with American complicity in the West Bank and Gaza, without supporting Hamas' misconduct, it likely is more worthwhile than most of the stuff published at the Volokh Conspiracy.

[ReaderY]

It does not. The article is very clearly and explicitly about Israel’s founding in 1948. Israel did not occupy the West bank until its victory in a war that took place in 1967.

This article is saying that Israel’s founding was a horrible tragedy, and Israel’s EXISTENCE is a horrible crime against humanity.

Nothing to do with any post-1948 behavior.

You have repeatedly used the activities of some marauding West Bank settlers to justify supporting people who openly want nothing less than Israel’s complete destruction and the destruction of its Jewish inhabitants, stringing together a few anecdotes to characterize and condemn an entire nation and its entire history, as you are doing here. And as the Southern Redeemers did with the post-Civil War military occupation and Reconstruction.

Stop it!

[Rev. Arthur L. Kirkland]

If one were to ignore the government policy, the aggressive support of important government officials, the assistance of the Israeli Defense Forces, and the sentiment and votes of the electorate . . . your comment would still be disingenuous bullshit. And that would be before Gaza is considered.

Carry on, clinger.

[MN2828]

I've skimmed through the article and now regret the time it cost me. The passage quoted by Dave M is one of the less convoluted passages in the article.

Substantively, the article is an apology for Hamas' worldview, which is every bit as noxious as the worldview espoused by the furthest right member of Netanyahu's coalition. The author presents a one-sided history of Palestine to argue that Israel's existence should be categorized as a new form of human rights violation on par with genocide or ethnic cleansing. Merely by existing, Israel is guilty of the made-up crime of "Nakba."

[SIV]

Another HUGE "L" for the Ivy League's wannabe censors.
https://www.columbialawreview.org/content/toward-nakba-as-a-legal-concept/