Some Thoughts About the Latest Law Review Imbroglio

The news last week was that the Harvard Law Review editorial board had voted "not to proceed with publication" of an online blog post that is more or less about the international law status of Israeli military action in Gaza, despite that post having been duly commissioned by the blog's editors and having gone through the process that culminates in its being posted. Here is a story about it in The Intercept; here's one in the Guardian. You can read the article itself at The Nation, which decided to run it itself, albeit not without succumbing to the desire for a clickbait headline. And here is a note from the Law Review's editors. I limit myself to the information in those sources; if more illumination was provided on social media, I did not seek it there. I'm late to the party by Internet time, but I offer some thoughts below. I try to make any assumptions or unanswered questions clear. 

1: One thing to note at the outset is that the writing was slated to run on the HLR's blog, not in the journal or "even" the HLR Forum. The Guardian article and the Nation's preface to the actual post make that clear; the Intercept article mentions it in passing. Both the Intercept and the Guardian do employ some slippage in their language, repeatedly emphasizing the prestige of the parent journal, referring variously to the writing as an "essay," an "article," and so on, and lamenting that the post will now "never be published with the Harvard Law Review." That makes for more eyeballs. But still: it's just a blog post! No one takes blogs or blog posts seriously. (You can decide for yourself whether I'm speaking with irony, accuracy, or both. Regardless, henceforth the editors of PrawfsBlawg, taking a page from the folks in Cambridge and the iron law of title inflation, will be known as "Online Chairs.")

Perhaps that suggests that discussion of the controversy could be drained of some of the language of high drama. That doesn't alter my opinion about the wrongness of the editors' ultimate decision. But it does suggest that some of the Olympian verbiage and prestige-mongering might be toned down. The post will indeed "never be published with the Harvard Law Review." But it was never going to be published in the Harvard Law Review! On the other hand, it is also relevant on the other side of the ledger. One does not reasonably expect a blog post to be scholarship or to meet the same standards that might be expected for the journal itself. However vainly, one does expect everything a scholar writes on his or her subject, even in a blog post or amicus brief, to be accurate and honest. But a scholar can surely opine or editorialize in a blog post, including about current events, and including doing so in ways that a scholar might avoid in a scholarly article. (This time I am obviously speaking ironically. People editorialize often and wildly in law review articles, often about current events, and on matters both within and far outside their expertise.) To the extent that reactions to the decision not to publish focus on its not being sufficiently "scholarly" or not good enough to warrant publication, a question which is only relevant if that was the reason for the decision not to publish, those standards are misplaced.  

2: Assuming the facts are as reported, the post should have been published. I assume, per the Intercept, that the post was "solicited, commissioned, contracted, submitted, edited, fact checked, copy edited, and approved by the relevant editors" and that all this happened "in line with the Law Review’s standard procedures" for posts on the blog. If so, and absent something like a late discovery of plagiarism or defamatory material--which presumably would still have been dealt with through normal processes--that should be that. The Law Review editors' note states that after the regular process had been followed, "the full body met and deliberated over whether to publish a particular Blog piece that had been solicited by two editors.  A substantial majority voted not to proceed with publication." It had been more than solicited by this point. One could imagine an argument that the full board can always, in theory, make a final decision not to proceed with publication of any sort of piece within the HLR "brand." But I assume it does not generally do so. ("One last time while we still have the galleys in hand: Is everyone okay with running this Foreword?") I see no relevant reason, and have read of none, why it should have acted differently here. The post should have run. The editors erred.

3: It is never a bad time to question law review processes (and substance!). That goes for the processes involving its online supplements and blogs and other outlets as well as the journal itself. Since there was a process and it was apparently followed, the piece should have been posted. But that doesn't mean the process makes sense or is an academically sound one. I'm not questioning the good faith of the "Online Chairs" in this instance. But obviously, if (as the description of the process suggests) they have autonomy in their choices, it's a system that is vulnerable to unchecked bad decision-making or abuse. (The usual abuses, for law reviews, would be and are favoritism, deal-making, careerism, and so on, but certainly naked politics belongs on the list too.) Maybe the Harvard Law Review doesn't actually need a blog. (Who does?) Maybe if it has one, it should limit itself to non-substantive or milquetoast posts. Maybe if it runs substantive pieces, there should be greater checks on solicitation practices and a further checkpoint before acceptance and publication. That's especially true in that the actual value of the blog is not that it's a blog, but that it gets to call itself the Harvard Law Review Blog, so that authors can list it as such on CVs and journalists can talk about it as if it is an august publication. Maybe it will now change the substance or processes of its blog accordingly. Maybe it should! But not midstream.

4: There is certainly nothing wrong, in my view, with a writer on international law arguing, inter alia, that Israeli action toward Gaza after October 7 constitutes genocide, or that (if I read the author's piece in the Nation correctly) a proper framework must be employed to understand its actions and that framework can be found in the events of 1947-49 and their sequelae. The argument might or might not be wrong, but it's a pretty standard line of inquiry and hardly unspeakable (if "unspeakable" is even a relevant limitation on scholarly writing). The piece itself seems to me to be more of a series of assertions than a set of arguments, but, again, it's just a blog post. (Nor is assertion without argument absent from law reviews themselves.) And it seems to me to use airy abstractions, scholarly abstruseness, and grad-school filigrees to obscure acts of terrible violence while complaining about how others have obscured acts of terrible violence with airy abstractions and scholarly abstruseness. But that's standard-issue stuff for scholarship. While most of the piece is outside my subject matter, I do think its first, second, and sixth paragraphs are silly and melodramatic and are also neither especially accurate nor at all healthy in their assertions about what legal academia is or what it should be. (Are "leading law schools and legal scholars in the United States" really going around "fashion[ing] their silence as impartiality?" Why should one care about "leading law schools" as such on this subject anyway, other than for the usual reasons of elite self-regard? Why on earth would one turn to law professors, as opposed to moral philosophers or, say, just plain folks, when "moral clarity" is "urgent?" Did I miss the required 1L class on moral clarity?) But all this is par for the course, for many blog posts and no shortage of legal scholarship. And none of this appears to have bothered the editors as such, let alone the specific editors who apparently were given free rein to solicit and run blog posts. If the Law Review's email to the author is to be credited, its reasons for spiking the post had nothing to do with any "substantive or technical aspects of [the] piece."

So, again, it should have run. If a bunch of editors elsewhere on the journal then decided the piece was objectionable, they could have asked the blog editors to hasten their work on the response piece that I naturally assume those editors had already solicited. If none was in the offing, for some strange reason, they could have insisted that one be solicited. (It could have been on the main issues, but given the paragraphs I mention above, I think Stanley Fish could have penned a bang-up response.) If the online editors refused to run one, that would be a good time to force a vote or revise the journal's blog policies.  

5: In the Guardian piece, the author of the post calls the decision to kill it an act of "discrimination" and censorship. The first charge seems inapt. The general sense of the reporting (including an email from one of the online editors) suggests that some editors "oppose[d] or [were] offended by the piece" but that the larger concern was that the piece might provoke a reaction from members of the public who might in turn harass, dox or otherwise attempt to intimidate our editors, staff and HLR leadership." Opposition and offense are not legitimate reasons to kill a piece that has already been through the process. They are not, for that matter, legitimate reasons to kill any piece, in any corner of the Law Review or in any other scholarly forum, at the beginning of the process, regardless of the topic of the article.

I think there is room for considerable sympathy on the final reason, however, even though it doesn't alter my conclusions. To the extent that the concern is professional (editors worrying about "risk[ing] their futures"), I doubt that running the blog post would have had consequences at all but the most foolish places; it's a far cry from the kind of conduct that law firms waved their hands about. But the prospect of online identification (I'm not sure calling it "doxxing" is fully accurate; that non-precise term seems to be getting ever more imprecise) and harassment seem much more likely, no matter that running the piece once it had been accepted would be the proper decision or that the journal might run subsequent posts criticizing the first one.

I've already written here several times that I'm deeply disturbed by that dynamic, especially given the extra charge that social media gives it, and think any civil libertarian should be. I do not think there is a right to not be identified or not be criticized for even proper conduct, let alone improper conduct, or that there necessarily should be. If, say, you have spent several years constructing a public persona, however phony, that calls for crushing corporate America, it's kind of okay for a corporate law firm to consider you a bad fit, even if its usual tendency has been to ignore applicants' views as long as they have the right pedigree. But one can still oppose the large-scale operationalization of that sort of mob or crowd pressure--as some have been saying for many years now--and the subsequent weak-kneed response by employers and other institutions, and think that this dynamic is harmful to civic, and civil, discourse.

In any event, this is a far cry from some of the more ridiculous statements that have been made along these lines. This is not "we demand the right to publicly smash windows, or block or occupy buildings, or tear down posters, but you know, in 'private,' and definitely without professional consequences." Yet mobs, and individuals who engage in individualized harassment, are not especially good at drawing these distinctions. So I can sympathize with the student editors' fears, and I think their decision is best understood as one of self-preservation rather than politics, let alone discrimination. But those fears and my sympathy don't change their job or the obligations attached to it. A wrongful action that I can sympathize with is still wrongful. (I assume fear, and not politics, was behind the decision of the Harvard Law Review editors to deny membership to Jonathan Lubell in 1953.)   

6: This incident may be unusual. But it's not unique. It ain't all about Gaza and the political sensitivities around it, or Bill Ackman or "doxxing trucks." If this was a wrongful act of censorship, then so was the effort first to bowdlerize and then the outright cancellation of Larry Alexander's piece in the Emory Law Journal not so long ago. If the HLR editors demanding that an accepted publication be spiked despite its having gone through the usual processes constitutes a (successful) effort at censorship, then a similar label should attach to the (unsuccessful) effort of Oxford University Press USA employees to get the press to "reconsider" its publication of Holly Lawford-Smith's book Gender-Critical Feminism. The same goes for the American Indian Law Review's abrupt rejection, also of reasonably recent vintage, of an article it had already agreed to publish.

If the more general argument is that the editors wrongly took political considerations into account instead of simply publishing a plausibly acceptable scholarly writing, I welcome it! But any honest reader of law reviews in the past several years (not to speak of years past) must acknowledge that their selection process has been quite political--increasingly so--even (or especially) when such selections are not visible. (Sometimes they are. When you run a whole issue or symposium devoted to a particular politically inflected substantive view and exclude any questioning, doubting, or critical views, even when it's obvious that such views exist and that there is ample room for serious, good-faith scholarly questions and criticism on the topic, that's a visibly political decision, as well as a bad one.) As I said, I doubt politics were at the bottom of the editors' action here. But if people believe otherwise and still have a problem with it, they will not lack occasions for alarm.