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Friday, September 09, 2016

Commitment to furthering social change

A friend at another law school shared the following (the story is made anonymous, and non-gender-specific, for the benefit of all parties):

My friend wrote an empirical article, concluding that the data did not support removing military commanders from the courts-martial system in sexual assault cases. She/he submitted it to a law-and-social-policy/social-change journal at a t20 school. The journal rejected it, writing the following: "Our editors felt that your piece provided interesting data analysis; however, we do not feel that your framing of the issue and your ultimate conclusion align with our journal's commitment to furthering social change."

This is a staggering thing for an academic journal to say out loud, even if many people believe such biases exist in publication decisions, in law and other disciplines. It is more staggering for an empirical article. If editors disagree with an author's conclusions in a normative or theoretical piece and reject it on that basis, that is troubling, although separating evaluations of quality from agreement with the conclusion is a difficult intellectual exercise. To reject an article because the conclusions from the empirical data do not "align" with a commitment to "furthering social change"--while not questioning or challenging either the data or the data analysis--is nakedly anti-intellectual. Not to mention counter-productive: If you are committed to furthering social change in the area of military sexual assault, wouldn't you want to rely on data that helps identify the best solution to the problem and directs you away from solutions (pulling commanders from the process) that will not resolve the problem? (This problem is not limited to law, but extends to the hard sciences).

Posted by Howard Wasserman on September 9, 2016 at 02:06 PM in Howard Wasserman, Law Review Review, Teaching Law | Permalink

Comments

Can you check the link on your "extends to the hard sciences" parenthetical? That is of great interest but for me it just pulls up the main page of the So To Speak podcast.

Posted by: Anon. | Sep 9, 2016 2:23:55 PM

I found a better link. It's the episode with Alice Dreger, formerly a medical prof at Northwestern.

Posted by: Howard Wasserman | Sep 9, 2016 2:28:59 PM

Thanks. Did the article in question get published somewhere? It would help to place this in context.

Posted by: Anon. | Sep 9, 2016 2:54:51 PM

Still in the process, as far as I know. Not sure why that makes a difference as to this particular rejection and the states grounds.

Posted by: Howard Wasserman | Sep 9, 2016 3:24:29 PM

Still in the process, as far as I know. Not sure why that makes a difference as to this particular rejection and the states grounds.

Posted by: Howard Wasserman | Sep 9, 2016 3:24:29 PM

Doesn't this represent one significant strain of thought as to what law schools are supposed to be about?

If a law professor can list advocacy as one of his felt core duties, and a for credit class can be oriented around maximizing "doing good" rather than pedagogical value, than why should a specialty journal be immune?

Posted by: brad | Sep 9, 2016 3:45:03 PM

My comment above should be "stated grounds."

Brad: Interesting point; a couple of responses. First, I can distinguish what happens in the classroom from what gets published in a journal. My search for truth is broader in scholarship than in the classroom because I also have to train lawyers. For that reason, I would hope the journal would be more open than the classroom. Second, the "doing good" class still must wrestle with how, which includes figuring out the best way to do good in light of the substantive law. And that gets me back to one criticism--why reject out of hand evidence that will help you do good by showing you the better/best way to do good.

Posted by: Howard Wasserman | Sep 9, 2016 4:02:39 PM

Because empirical work is necessarily objective and neutral? All research reflects some subjectivity, whether admitted or not. The fact that the journal chooses to adopt a social justice frame is not problematic to me. The rejection said there was a problem with the actual framing of the issue.

Posted by: Anon | Sep 9, 2016 4:29:55 PM

I'm not sure why the journal is not named. If this is the journal's policy, they should be upfront and open about it.

Posted by: Jonathan H. Adler | Sep 9, 2016 5:02:28 PM

I wish the original post provided a bit more precision on the author's conclusion. Let me say up front that I don't really see the problem with agenda-driven journals.

If the author found that leaving military commanders in the process led to greater justice for the victims and accountability for the perpetrators, but the agenda-driven journal simply refused to accept that could possibly be true because everybody knows the commanders don't care about the victims and just sweep these cases under the rug, then it's a bad agenda-driven journal and its editors ought to be talked to.

If the author found that leaving military commanders in the process led to, and I'm just guessing here, more cohesion in military units or less expenditure of time and resources dealing with these cases, then I have trouble seeing the problem.

Posted by: Sykes Five | Sep 9, 2016 5:06:00 PM

I have to admit that since neither the author nor the journal is named, I am left feeling a little incredulous. What kind of evidence is this, speaking of the law?

I am neither an academic nor a lawyer. I found out about this post on facebook from a friend who is both an academic and a damn good lawyer. I have to assume the audience for this blog is not the general public, because making accusations without backing them up with verifiable citations is, at best, inside baseball.

So is this just venting? Is there an audience whose mind(s) will be changed? What change does this post seek to create?

Posted by: Anon | Sep 9, 2016 5:19:39 PM

What if I, say, do some empirical, historical research pertaining to Citizens United, or Heller, or some other bogeyman of that sort, and determine that the decision is correct as an originalist matter? An article arguing that the Supreme Court should reaffirm some precedent, almost by definition, does not further social change, and it certainly wouldn't further social change in the sense in which any social-change journal uses "social change." I would expect, then, that journal to reject my article, and would never bother submitting such an article to a social-change journal. On the other hand, I would expect that journal to accept really good historical work on why some bete noire of the liberal legal establishment is wrong as an originalist matter (notwithstanding that the bulk of that cohort doesn't actually subscribe to originalism). The particulars of this case may be different, but in principle I don't think that a social-change journal ought to accept great empirical work at odds with its mission, unless there's some principled objection to the very existence of social-change journals.

Posted by: Asher Steinberg | Sep 9, 2016 5:27:27 PM

Anon--
"What kind of evidence is this, speaking of the law?
...
I have to assume the audience for this blog is not the general public, because making accusations without backing them up with verifiable citations is, at best, inside baseball.
...
Is there an audience whose mind(s) will be changed?"

Faculty advisers to specialty journals and their colleagues / deans who might influence them. There's no need to prove anything to anyone, and certainly not the general public. What exactly could, would, or should the general public do about it?

---

Howard --
The point about empirical work, more information basically, being useful to anyone on any side of an issue is a strong one. But the way I read your post it isn't the data gathering or statistical analysis that the journal objected to but rather the framing and conclusion drawn from them. Without more details, that sounds like the sort of thing that could shade into normative statements that are at odds with the normative position(s) taken by the journal.

To put my cards on the table, I'm not particularly enthusiastic about this strain of thought as to the function of a law school, but inasmuch as the field as a whole disagrees, I don't see how the journals can be shielded from it entirely. As long as it is a disclosed part of the charter I can't see it as especially objectionable.

Posted by: brad | Sep 9, 2016 5:33:26 PM

In summary, the article found that military commanders did not systematically or disproportionately keep sexual-assault cases from going forward in greater numbers. So it wasn't a finding that keeping commanders in the process led to greater justice/accountability, only that keeping them in the process did not cause the lack of justice/accountability (or, stated differently, that pulling them out of the process would not necessarily lead to greater justice/accountability, as many people believe). So, the piece is saying, if you are looking to solve the sexual-assault-in-the-military problem, find a different solution than pulling commanders out, because this won't necessarily change anything.

Maybe I do not understand what "social change" journals are about. I have always looked at them as public law/public policy journals, perhaps with a lefty bent. So understood, "this article does not meet our ideas of the social good" would not be a valid reason for rejecting a piece of scholarship. Perhaps that is the wrong way of thinking about it.

As Jonathan points out, maybe this is not a problem if the journal is up-front about its positions. My guess is that it talks about social change in terms similar to what I was thinking about public law and policy, without explicitly saying "we only publish articles that match a certain liberal sense of the good."

Posted by: Howard Wasserman | Sep 9, 2016 9:30:59 PM

an advocate need present only her side of the facts, without lying. what is wrong with what the journal did, given that the journal is committed to advocacy?

Posted by: anon | Sep 9, 2016 10:42:42 PM

Looking at the mission statements of the "journals of social change" at top law schools, they appear to seek relatively specific kinds of articles. I found two statements specifically:

1) "[We seek] legal scholarship that seeks to eliminate inequalities, correct injustices, or consider the relationship between the law and individuals’ lived experiences. " (NYU Review of Law & Social Change, which has the motto "Legal Scholarship to Promote Social Equality and Empower Marginalized Communities.")


2) "We are a student-run journal and seminar that espouses an interdisciplinary scholarly approach to challenge social injustice." (Penn Journal of Law and Social Change)

In light of these mission statements, I gather that these journals seek articles that share and advance the editors' worldview. Given that, I don't see a problem with the journals rejecting articles because the articles didn't advance their views. If anything, I appreciate their candor.

Posted by: Orin Kerr | Sep 10, 2016 12:02:41 AM

I think the problem is with the underlying assumption that law reviews--student edited journals--are actually committed to scientific rigor and academic excellence in any meaningful way. Most of these journals do not even pretend to conduct blind review, ask for CVs, are known to filter based on position and affiliation, etc. So we found another bias--why is this more disturbing than others?

This case could also be seen as a demonstration of another problem with the student review system, which is students' insufficient ability to review empirical work due to lack of time and proper training. Law students are increasingly in a position that requires them to assess the quality of empirical work without necessarily having the tools and the knowhow (most schools don't even teach statistics to their students, for example, let alone in the necessarily level of sophistication).

If I were the editor of such journal, publishing a piece that does not easily fit my agenda and which I cannot evaluate substantively is highly problematic. I would know that the empirical part would lend more credibility to the normative conclusion (one cannot argue with facts, right?), but I would be unsure whether this would be a justified outcome given that the conclusion is controversial and I cannot personally vouch for the data analysis. I don't think that this is a task for law students, but for peer-reviewed journals. Hence I don't think that this is really the students' fault.

I would expect the author to submit this work to a peer-reviewed journal, and if he/she would get an agenda-driven decision from such journal--a journal that is actually committed to scientific rigor and to empirical analysis--then I would be really troubled. Until then, I don't think this case differs substantially from everything else we already know about student editors.

Posted by: ELS prof | Sep 10, 2016 5:19:14 AM

There are sciences, natural and social, not "hard" and "soft."

Posted by: Patrick S. O'Donnell | Sep 10, 2016 10:12:35 AM

If we're looking for a silver lining, the journal candor is refreshing. It, however, does make equally apparent that the journal editors' worldview is not open to question or inquiry that suggests the world is not as quite as the worldview supposes, a bit like religion, filled with dogmas that are not permitted to be questioned. But in this case, the author seems not to question the premise of social justice so much as how to better advance it. That seems deeply troubling for the reasons Howard notes. I'd like to know the journal's name so I don't ever make the mistake of citing to it.

Posted by: TS | Sep 10, 2016 2:33:19 PM

If someone tells you they promote 'social justice' or 'social change', they're almost invariably up to no good. That they publish junk journals may be the least of they're sins.

Posted by: Art Deco | Sep 10, 2016 3:17:26 PM

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