When something appears on the pages of SJ, it’s subject to the harshest of peer reviews. You guys. Lawyers who have made their bones in the trenches, and can call out the content as total bullshit, completely wrong, unbearably stupid, if that’s the case. And you have.
But for law profs, their mechanism of choice is law review articles, and their “peer review” is getting some law students who happen to run their law school’s law review to accept their article and run it. Because, well, law students know stuff. Sure, they pass it through some academic pals of a feather, but that’s about as far as it necessarily goes.
A new means of trying to get popular recognition of law review articles that gain no traction on their own appears to be emerging, and it’s a troubling one. Legal start-up Casetext is offering anyone and everyone a blank page to promote themselves, and it’s a dangerous mutt. This is where Utah lawprof Shima Baradaran chose to post her USC Law Review article “Drugs and Violence.”
In a comment to Baradaran’s Casetext post, Tara Mikkilinneni, described as the Casetext “head of community” adds:
I can’t emphasize enough the importance of this piece–the assumption that drugs and violence (or drugs and guns) are inextricably linked is wholly pervasive among judges.
There’s only one problem, but it’s a big one. The issue, the “inextricable link” in the minds of judges between drugs and violence, is huge and deeply problematic. The problem is that Baradaran is ridiculously wrong in her thesis that it’s all a big myth that never happened. And because of this flagrant error, the significant issue going forward is fundamentally undermined.
And needless to say, it’s now available to be seen by people who may seize upon it, have no clue that it’s nonsense, and attempt to use it to their detriment. They could have decades to sit and ponder why their argument failed. Great.
The summary offers a fairly good idea of the problem:
The war on drugs has increased the U.S. prison population by tenfold.
Uh, no. As popular as this simplistic assertion may be on reddit, lawprof John Pfaff conclusively showed that’s just false. That isn’t to say that the War on Drugs isn’t the cause of myriad problems, but this is just silly.
The foundation for the war on drugs, and this unparalleled increase in prisoners, relies on the premise that drugs and violence are causally linked. Politicians, media, and scholars continue to advocate this view either explicitly or implicitly. This Article identifies the pervasiveness of this premise and questions the link between drugs and violence. It demonstrates that a causal connection between drugs and violence is unsupported by historical arrest data, current research, or independent empirical evidence.
History is a funny thing. It sometimes gives perspective from a distance that couldn’t be seen from street level. Then again, it can also suffer the Squire of Gothos dilemma, the view that fails to understand what it felt like, smelled like, tasted like, in real time. The problem is that while Baradaran may have no clue what actually happened, other do, and those others include the judges who impose sentences and who put the number into the sentencing guidelines grid.
The crack epidemic of the late 1980s and 1990s was no joke. There was blood flowing in the streets, as every kid with a Tony Montana complex wanted to own his turf to sell tiny vials, and every other kid with a Tony Montana complex wanted to take it away from him. There were some gangs with cool names, like the Wild Cowboys, who were shooting up the streets. Trust me, they were real.
As it happened, and as an offshoot of the violence that permeated urban life, Congress created the sentencing guidelines, which embraced the drug violence connection, because it was real. In 1990, there were 2605 murders in New York City. Tell the dead guys they weren’t dead.
That there is little evidence to support the assumption that drugs cause violence is an important insight, as the assumed causal link between drugs and violence forms the foundation of a significant amount of case law, statutes, and commentary.
Here’s where the shift in the article makes a difference: “the assumed causal link between drugs and violence.” If the point is that drugs do not inherently cause violence, that’s a very different point than denial that there was any correlation between drugs and violence.
The “solutions” to drug violence permeate the law, and attitudes toward drugs, that grew out of the crack days, from the drug kingpin sentences reflected in the sentencing guidelines to in rem forfeiture, sold as “taking the profit out of crime.” These are monumentally serious issues, given that the number of murders in New York City in 2014 was 328. Clearly, something has changed, given that recent drug crime hasn’t produce a fraction of the violence.
Does this matter? You bet it does. It’s critical that judges recognize that the perceived connection between drugs and violence from the bad old days is no longer true, and that defendants sentenced for drug offenses not be viewed through the prism of violence as well. But when the “scholarship” relies on such a mistaken premise, that violence never happened, it’s immediately dismissed.
Had Baradaran make her pitch on a legitimate law professor blog, say Concurring Opinions, PrawfsBlawg or Volokh Conspiracy, she would have been subject to actual peer review, been smacked around to the extent prawfs are willing to call a baby ugly, and refocused her efforts on something that wouldn’t deny reality in her effort to address a very real problem. Had she done so on a trench lawyer blog (not that it would happen, but let’s pretend), the reaction would have been swift and brutal.
But instead, it sits beyond the view of anyone who would know enough to criticize the false assertions, where the prying eyes of the public (and, perhaps, some journalist who figures they can learn law from Google) might be influenced to assume that a law professor has a clue what she’s talking about, and push a critical point into the rabbit hole.
Much as the internet doesn’t make people stupider, this is how it allows people to be as stupid as they want to be. When it comes to something as critical as this, and affects as many lives as this, creating safe spaces for bad scholarship isn’t acceptable.