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Tuesday, June 04, 2024

Again With the Law Review Nonsense

Having followed the last round of controversy concerning lawyer and writer Rabea Eghbariah and his scholarship on what he is free to call "Nakba,"* I am trying to keep abreast of the latest round, which concerns the publication of a longer version of that project in the Columbia Law Review, and the publication and de-publication of that article online (along with every other article, since the entire website, when I last looked at it this morning, just reads "under maintenance").

One should take early and partisan coverage with a very large, even kosher-sized grain of salt. For instance, the main story on the subject at the moment, in The Intercept, is one-sided in its sourcing and checking, and it shows. For example, it repeats credulously an editor's statement that "I remember searching Columbia Law Review’s website in October, and there’s only one other mention of the word Palestine in the entire online existence"--possibly true, but misleading, insofar as the word has appeared some 30 times in the journal's existence (not including case names), including 15 in the last 20 years or so. Not a capital crime, to be sure; but it's the kind of thing that's easily checked, and that, perhaps deliberately, leaves readers with a mistaken impression of the journal's past and present alike. (Perhaps the problem is that the Columbia Law Review's website, like many law review websites, is just not very good. If it's any comfort, others are even worse. Just off hand, the Texas, UCLA, and California law reviews all seem to require a hacker's skills if one simply wants to find out what has been published issue by issue.) 

It is difficult to pronounce on the facts under such circumstances. And absent a proper command of the facts it's even difficult to deliver some kind of principled statement. That said, just as I disagreed with the HLR editors' decision in November, I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception. Whatever the full facts and sequence of events, the journal ended up in an embarrassing place. Since it is unlikely the whole piece will be pulled, the board should have left the article up even if its hand was forced.  

If I am reading the available information and some of the tea leaves correctly, I would say that the following things seem true, or quite possible, about both the Columbia and Harvard incidents: 1) The leadership of each law review deviated from the usual practices, for more or less timid reasons. Note that the "leadership" is very different in each case: the student editors in the Harvard case, and the faculty/alumni board of directors in the Columbia case. 2) So did some smaller or larger group of editors who were more directly involved in or supportive of the article, for more or less ideological reasons. 3) So too, possibly, did another small group of editors who opposed the article, again for more or less ideological reasons. 4) Once there is a departure from normal standards, further departures are encouraged across the board. If you're a student editor and distrust the leadership, you try to "preempt" it by acting irregularly, as the editors here did by rushing the article online. If you're on the board and you distrust the student editors, you use that action to justify shuttering the website altogether. If you're a student editor and distrust other editors, you strategize against them with leaks and so on. And so, as Kurt Vonnegut would say, it goes. The value of routine practices, even at law reviews, is that they help stave off the war of all against all.  

One thing I would suggest, in line with my usual institutionalist instincts, is that it would help if all these people understood that they have one job to do. It's a professional job, and it has nothing to do, in a direct sense, with effecting change or seeking or avoiding public notoriety. A law review article is just a law review article! Its function is to present scholarship. That's all it's there to do. Other than indirectly (and even this is unlikely), it won't change the world, for better or worse. But for writers and editors to do that--to provide a reasonably well-vetted forum for "collegial, co-operative inquiry that makes progress, however slowly and collectively"--is enough. The journal's editors are not there to change the world or "make a statement" either, and certainly not on a short timeline. They're there to edit and publish scholarship in the field, which again is work aplenty. They're stewards, not movers and shakers. Their job is not to seek fame or attention or display solidarity or anything else, but just to seek to publish good scholarship and avoid bad scholarship. Its editors--and editorial board--should do only that, and disregard pressures to publish or not publish other for any other reasons. The more consistently they do that, treating all else as irrelevant, the easier it will be to ignore either breathless and most likely unwarranted praise or inappropriate threats. Just vet and publish good articles--a serious and conventional, even boring, job and the only one you have.

I would add that although departures from normal processes are noteworthy, not all of them are equal. It's somewhat unusual that the CLR decided to solicit a piece on a particular topic, and somewhat unusual that it then solicited the piece from a particular author (although one understands the likely reason here), when most non-symposium articles go, at least ostensibly (leaving aside pressure to publish tenure pieces, pressure to publish particular articles from faculty members, and other abuses), through the same calendared over-the-transom process. But perhaps there should be more of that sort of thing. I don't particularly trust law review editors to do this. On the other hand, their standard selection process is not especially trustworthy either, and at least this would result in the publication of timelier pieces more often. Other departures are more questionable.

Finally, if one at least partially accepts the Intercept article on this question, it seems likely that the editorial board acted both unusually and wrongly. That's especially unfortunate for one reason: Law review editorial boards and/or faculty advisors, and law school faculty as a body more generally, should intervene more regularly and firmly in the law review process. Law reviews exist for the scholarly discipline, not the students (and not for judges, firms, or other future employers either). In my experience, many law review editors are excellent and "top" law review editors are especially sharp. But they're still definitionally unqualified to do the job of vetting scholarship in the field that they're still studying. This is evident in the choices that even top journals routinely make. It's evident in the fact that a number of them, in recent years, have adopted missions that are incidental to their actual function. It's good that some of them have introduced some measure of peer review, but that process has quickly become more of a fig leaf than a serious vetogate. The faculty of the schools that sponsor these journals are responsible for all of this; any blame attaches to the student editors only second. In the absence of a switch to the standard, everywhere else in the academy, of peer review, American law school faculty should take a more hands-on role in making sure that law reviews, at elite and non-elite schools alike, are doing their jobs properly. They should more actively oversee law reviews' selection process, demand more peer review where it is needed, and overrule editors' selection choices where appropriate, whether the students like it or not.

But they should exercise this sort of oversight at the beginning of the process, not the end, and if they are going to move to this imperfect but more professionally responsible model, they should make it a transparent and routine process, not some exceptional, struck-by-lighting thing. And the responsibility for doing so must rest with the faculty alone, since a law journal is an academic disciplinary publication. In this case, the board's intervention was clearly highly rare and irregular, clearly had as much or more to do with fear of controversy as with quality or scholarly soundness, and came long after the selection of the article had occurred. Moreover, the board apparently includes alumni, who have no business whatsoever telling a scholarly journal what to publish or not publish. The time had long since passed for the board to put up or shut up; its job now, at most, was to support and not undercut the editors, and controversy be damned.

I might add that one benefit of the kind of faculty involvement I envision is that it would thoroughly disrupt the whole process as it is currently conducted. If faculty were to be more involved in the selection process--as they should, albeit ideally they would do so primarily through peer review--the whole works would be gummed up and slowed down. Given the need to give qualitative and not resume-and-politics-scrutiny-style review to each piece, and given the other demands on faculty's time, law reviews would have to move away from the current single annual selection sweepstakes. Their involvement in review and selection would also disrupt the whole silly process of gaming offers from other journals. It might, indeed, lead to rules against multiple submissions. It might diminish many law students' desire to work on journals, as they slowly became mere copy-editors and cite-checkers, and reduce the value of law review membership as an employment credential. In time, American law reviews might actually become respectable disciplinary journals.

But none of this describes the process here, so far as I can tell. The article was selected and edited. It might have been selected in an unusual manner, and the last-minute stuff all looks irregular. It might be a good or bad article; certainly the fact of publication in a top U.S. journal is not currently a very strong indicator on that point. But it should have been published without any of the nonsense accompanying it. I hope at the least that the board appreciates that on these sorts of issues, there is no such thing as doing things quietly or confidentially, and that if its actions were intended to avoid controversy, they achieved the opposite result. 

*Incidentally, Eghbariah was educated at the University of Haifa and Tel Aviv University and worked at an Israeli human rights organization. Although the purported goal of conventional BDS movements is to aim at institutions and not persons, it does seem true that he honed his gifts at the sorts of institutions that many people cheering on his article would urge us to shun and weaken at all costs. One should pause for at least a moment to appreciate the juxtaposition.  

Posted by Paul Horwitz on June 4, 2024 at 03:11 PM in Paul Horwitz | Permalink


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