A Second and, Deo Volente, Last Post on the CLR Mishegoss

I won't try to follow and comment on every twist and turn (It's up! It's down! It's up! It's...whatever. I just want to know when the April issue of the Michigan Law Review will come along.). But new information came in not long after I put up my post the other day, and there has been some further news coverage since. I found this Inside Higher Ed piece useful, as well as this Times article (though points were deducted for the appearance of the phrase "speaking [one's] truth"). The Intercept has a second piece, and although I commend it for its work, that work continues to be tilted in its sourcing and to fail to provide links that might allow a reader to judge for himself. That includes not giving a link to the board's letter, which one can find here, if you'll pardon the X-ness of the source. I also found Mike Dorf's commentary useful, although I don't see eye to eye with him on everything. (I do agree with him on a lot of bottom-line stuff.) The new reporting and commentary occasions a couple of observations--few in number if, as always, excessive in length. 

For the most part, the latest information doesn't change my general view that even if the board had some legitimate complaints, its actions were unwise. It was never, it seems to me, going to end up permanently spiking the issue or the article. It should not, therefore, have taken the article (and the website) down--even if its hand was forced by the editors. If it had or has complaints about the process, they could have been addressed after the fact, by a statement about the process followed with this article. More important, in the longer term, the board could carry out a reexamination of current policy, an assessment of whether current editors are following it, and a consideration of whether further policies need to be put into place. Some of these things might, for all I know, be a good idea. Vanishing the article and website was not. As everyone has noted, it certainly did not dampen the controversy that the board predicted the article would occasion by virtue of its subject--it super-charged it.   

The new reporting reinforces the view, which I stated in my earlier post, that rather than argue that only one "side" was being irregular (which seems to me factually incorrect, despite the spin efforts; I say more about this below) or argue over which side was being more irregular (that would be the board, I think), it's better to see a larger dynamic of multi-party irregularity at work. That dynamic incentivizes tit-for-tat behavior that ends up being detrimental to the journal and its actual, essential, quite conventional mission of publishing scholarship. (The tit-for-tat behavior includes the media coverage, of course; I don't blame the editors for taking to the press, but it should be understood as another strategic move in the game.)

The argument that there was no irregularity on the editors' part seems to be that a) the article was thoroughly edited and b) it's never the case that every editor on its overstuffed staff is involved in editing a given article. I have no reason to doubt either proposition. But the same editors make clear that they did act in an unusual fashion in various ways. One I count as minor, albeit perilous. That is that the selection process was unusual: seeking to "use the Columbia Law Review as a platform to discuss" some current event, as opposed to selecting articles from the pile while using the journal's online supplement to deal with shorter-fuse issues, is not the normal process, although it most certainly happens and I suspect it is becoming more common. As I wrote last time, I think it's not a bad thing in principle: the relative speed with which this piece went through a still-rigorous process suggests that law journals could be timelier than they are in selecting new and interesting issues. On the other hand, I don't trust editors to make those choices well (in fairness, I don't trust them to make any choices well), and I suspect that, absent better processes, it's an invitation to factionalism, politicking, and power plays on journal editorial boards.  

That wasn't the only departure (not counting the rush to publish online once the board got involved). The editors defending the piece emphasize how many people were involved in the approval and editing process, focusing one's eyes on the numerator. But they are also clear that they deliberately limited participation in at least the editing process, and just as deliberately kept the project under wraps. Thus, the normal number of editors worked on the article but, unlike with most articles, any news about it--apparently including its existence--was effectively firewalled. I say "apparently" because I'm really not sure, but it's certainly suggested by the fact that the editor in chief felt it necessary to alert her own staff to the existence and imminent publication of the article.

I also speculated in my post that there was likely another departure from normal processes--one involving editors opposed to the article. And so it seems, if the Inside Higher Ed story is accurate. That article says that one of those editors, once he or she discovered the existence and imminent publication of the piece, contacted the board, at which point we were off to the races. One wonders whether the initial secrecy was worth it; would any complaints have gotten anywhere, let alone to this extreme, if things had been aired more widely and the process had gone according to Hoyle in the first place? I can't say, but this would not be the first time that secrecy was either pointless or counter-productive. Clandestine maneuvering is, perhaps, cool more often than it's effective.

Despite disagreeing with the board's actions and having criticized it twice now, I think it makes a reasonable case in its letter that the editors' actions ran contrary to "norms of respect, trust, and collegiality." I can imagine a few reasons it might have acted in a more secretive fashion, and I am sympathetic to one of them. That is the fear of having to run a gauntlet of more or less industrialized quasi-doxing and harassment. Interestingly, that concern is not mentioned in those terms in the stories. Rather, the editors quoted make clear that their concern was that early drafts might be leaked. Of course the two can overlap considerably, and insofar as they were worried about leaks because they would result in harassment and pressure to cancel the article, I am again sympathetic. Insofar as such leaks would have ultimately originated with editors on the journal--perhaps junior editors with no role in article selection--I can only say again that journals work best when all their members act regularly, and leaking articles because you want to capsize them is irregular--and reprehensible. I should add that it might have been possible to let everyone on the journal staff know that the article had been chosen and would run, while limiting access to drafts to the team editing the article. If the editors were only concerned about the leak of drafts--and this is the only thing they cite consistently as a concern in the news coverage--this would have addressed that problem without introducing an even larger degree of unusual secrecy and exclusion to the journal's usual operations. Oddly, this option does not seem to be mentioned anywhere in the news coverage.   

Even if I find some room for sympathy when it comes to acting with more confidentiality than usual, all this behavior also suggests the possibility of a kind of built-in distrust on the part of some editors of their own colleagues in the enterprise of putting out legal scholarship. That distrust is perhaps most likely to arise when editors on either side of the dispute mistake and melodramatize their function (melodrama, in particular, being a chronic ailment among American elites), seeing themselves as engaged in something of a crusade or mission rather than the workaday enterprise of shepherding a learned disciplinary journal for a year with a reasonable measure of seriousness and continuity. (The quotes from some of the editors in the Intercept pieces have an air of taking the more melodramatic, mission-driven perspective; in fairness, one has to imagine that some of those who contacted the board might have an equally melodramatic view and offer similar quotes.) Since editors on a general-purpose law journal are going to have a variety of views about both politics and scholarship, a more mission-driven perspective, along with an inflated view of what law reviews do, will naturally not command unanimity on the staff and just as naturally will encourage an equal and opposite reaction. While I still think the board was wrong in its actions, I am not inclined to dismiss its letter's concerns about "the atmosphere on the Review" or about some students "feeling excluded and unwelcome" on their own journal.

I would be happy to dispense with the therapeutic language of that quote and just say that if a journal is caught up in internecine battles over what it's there to do, something has gone wrong. A law journal is there to serve as the site of publication of scholarship in a learned discipline. That American law journals are student-run, rightly or wrongly, is incidental to that fact; the Columbia Law Review has the same basic purpose as similar general-purpose law journals elsewhere which are faculty-run and peer-reviewed. The student editors are there not to wave banners on either side or to "step into their power." They're there to run decent, probably short-term-impact-free articles about torts and insurance and property and, I suppose, occasionally, public law. Given that this is a continuous, time-extended enterprise, there should be no internecine warfare because no one should be seeking to radically redo the journal's function for a one-year period. Whatever "power" they have is the power exercised by short-term stewards of a long-term scholarly publishing project.

None of this, again, excuses the board's actions. Nor, to be clear, does any of this suggest that the article itself should not have appeared in the journal's pages. I haven't read it (I did read the initial Harvard piece and have read some of the new article) and it's not in my field, so I can't speak to its merits. I don't think students should select articles, or at the very least not without more substantial scholarly supervision by people officially credentialed in the scholarly discipline and knowledgeable about the sub-field. But that is the current process and this article passed it. And I consider the subject matter wholly acceptable insofar as it deals with legal questions related to the status and treatment of Palestine, a perfectly valid subject, and wholly irrelevant insofar as it is currently controversial; law journals may end up publishing articles on controversial and uncontroversial subjects alike and should treat them the same, and with equal indifference to non-merits-based criticism. (On the merits, of course, the article should take whatever praise or criticism it has coming to it, again without reference to subject matter.) The author should not have had to go through this tsuris twice.