Legal scholarship is different from scholarship in other disciplines. The vast majority of law professors publish in law reviews run by students. These journals are not peer reviewed. Student editors may, but are not required, to seek out comments from professors in the field. Indeed, for the most part, third-year law students are solely responsible for publication decisions. And these decisions have serious implications. Applicants on the entry level market tend to have at least one law review publication. And applicants for tenure need to have several law review publications. (The precise number will vary by school).
Many critics of the current model contend that it is inherently unfair for scholars to place their careers in the hands of 3L student editors. I am sympathetic to this argument, but I’m not convinced the alternative is necessarily better. I have had good experiences with peer review and I have had terrible experiences with peer review. Professors may have greater expertise in a field, but they may also have stronger biases about what is and is not acceptable scholarship. I find that students tend to be more open-minded because they do not reside within a discipline’s echo chamber. As a result, my suspicion is that student law reviews are more likely to publish a wider range of ideas that are outside the mainstream.
That benefit is especially helpful for right-of-center scholars. It is difficult for conservatives or libertarians to burrow into peer review editorial boards. There are simply fewer right-of-center professors to begin with. But there are far more right-of-center law students. And they are able to join editorial boards with far greater ease. To be sure, there is still viewpoint discrimination. When I applied to be an Articles Editor in 2008, the outgoing board demanded to know if I could fairly review an article by a liberal law professor. Of course, I could. And the vast majority of articles are authored by left-of-center academics. Fortunately, I managed to skate by. I imagine those dynamics have worsened over the past decade, but I know that conservatives can still break through.
Going forward, I worry that law reviews are moving in a direction that will make it difficult, if not impossible for conservative authors to publish.
Consider a recent incident at the Washington University Law Review (in St. Louis). Andy Koppelman offered this brief description:
In one of his classes at Stanford Law School this past May, Prof. Michael McConnell read from a historical quotation that included the N word. (The quotation’s accuracy is disputed; more on that below.) When criticized by Stanford students and faculty for it, he explained that he “make[s] it a priority in [his] class to emphasize issues of racism and slavery in the formation of the Constitution, and directly quote many statements by supporters and opponents of slavery.” He went on to explain: “First, I hope everyone can understand that I made the pedagogical choice with good will — with the intention of teaching the history of our founding honestly. Second, in light of the pain and upset that this has caused many students, whom I care deeply about, I will not use the word again in the future.”
That should have been that. But then, at distant Washington University in St. Louis, where he had written an entirely unrelated article for a law review symposium, there was a movement to revoke publication. The law review ended up instead issuing a statement denouncing his actions.
McConnell’s article was not about race. It was about the free exercise of religion. (Although critics may argue that everything is about race.) The students objected to McConnell, as an author, regardless of what he had written for the journal. Professor John Inazu recounts that the students wanted to rescind the publication altogether, but the University would not allow them to:
Some of the protesters originally wanted the Law Review to withdraw its publication offer to Professor McConnell. Washington University School of Law Dean Nancy Staudt prevented this action after consulting with the university’s general counsel but authorized this protest statement instead.
The statement began with a disclaimer:
These statements do not necessarily reflect the views of Washington University in St. Louis, Washington University School of Law, the Washington University Law Review as an institution, the contributors to the symposium, or anyone other than the undersigned authors.
The statement was signed by some, but not all of the members of the Law Review. Here is an excerpt:
In publishing this statement, we seek to balance our own condemnation of Professor McConnell’s action with the academic freedom that we, as members of a journal committed to publishing a diversity of competing ideas, unequivocally support. Nevertheless, Professor McConnell’s action comes amidst a national reckoning on systemic racism, white supremacy, and police violence in the United States, and his use of the n-word—no matter the setting—cannot be divorced from this larger context. We apologize to our readers, especially the Black members of the Washington University community, whom the Law Review has hurt by publishing Professor McConnell’s work.
This incident was a flash point. It is common enough for a student-run publication to rescind an offer of publication based on the content of the article. But it is far less common for a student-run publication to try to rescind an offer of publication based on the professor’s speech outside the article. I am aware of one other student-run journal that recently considered such a cancellation, but upon advice from faculty advisors, abandoned the move. I fear these sorts of incidents will become more common.
Consider a recent statement from the Emory Law Journal. The Journal is hosting a symposium issue, titled “Systemic Racism in the Law & Anti-Racist Solutions.” Generally, I find that law reviews make some effort to foster ideological diversity. Often this representation is little more than tokenism. I have been on many panels were my views are vastly outnumbered, yet I could still speak. But I can’t imagine that any diversity of thought will be permitted for this symposium. The core of anti-racism is to deny space to those who are not anti-racist. Kendi stated this point quite clearly in his book:
The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.
In short, a symposium dedicated to anti-racism would be an inherent contradiction if it published articles that were anti-anti-racist. I think this argument extends further. Even if a given article was deemed sufficient anti-racist (whatever that means), the journal could plausibly review the author’s statements elsewhere to determine if he or she was sufficiently anti-racist. Certainly Michael McConnell would flunk such a litmus test. I’m sure that all of us have something in our background that could cross some line.
This sort of anti-racist approach test is not limited to the symposium. The Emory Law Journal offered an additional statement:
ELJ is committed to being an anti-racist organization, both in our ranks and in our scholarship. This is just one part of that mission. We look forward to reading your essays and moving the conversation forward.
Presumably, all submissions to this journal will have to be viewed through the two-fold anti-racist prism. First, determine if an article is anti-anti-racist. Second, determine if the author of the article is anti-anti-racist.
These standards would spell the death-knell for conservatives publishing in law review. Even if a mundane article manages to clear all of the editorial hurdles, it can be spiked at the last minute by a claim of anti-anti-racism–either against the article or the author. And these charges cannot be rebutted, unless an editor is willing to push back, and be deemed anti-anti-racist.
Statements from Deans and Law Reviews about anti-racism may seem innocuous, and indeed necessary for the current motion. But we should recognize that these statements will institutionalize viewpoint discrimination: only one perspective on a given issue is permissible. In the long run, academic freedom and open discourse will suffer.
At the present moment, I have submissions out to law reviews. I’m sure there is a chance that editors may retaliate against me (not that they needed any additional motivation). Let them prove me right. Tenure was designed for exactly these sorts of dynamics.
But make no mistake. This treatment will not be limited to McConnell, or Eugene Volokh, or me. Even well-meaning liberals will be targeted. Andy Koppelman, a card-carrying liberal, sketches his own demise:
I hope it isn’t only a matter of time before I get attacked for compelling students to read racist writings…. The campaign against McConnell shows how it would happen. It will be acknowledged that I have not advocated racist ideas. But, it will be said, I’ve been insensitive. I have shown a shocking lack of respect. I’m complicit in systemic racism. My lack of sensitivity has needlessly harmed my students. I need to be held accountable. Students should never be required to deal with a professor who has acted this way. A pledge not to do it again does not undo the continuing harm. And so forth.
Will journals keep lists of professors they should not publish? (Don’t dare call them “blacklists.”). Or will journals reject submissions from professors who do not sign social justice statements?
You are not safe. You will not be immunized by signing the right statements or staying quiet. No amount of virtue signaling will ever be enough. Eventually, everyone will be subject to cancellation.