The Mob Reviewed Yale Law Journal

Colin Wright is a Penn State evolutionary biologist, which already puts him at a disadvantage when it comes to raising such issues. After all, he’s not just a scientist, but one for whom human evolution and biology matter, which puts him at odds with those true believers in science, provided it adheres to their ideology.

So when he pointed at the issue raised at the Yale Law Journal, of all places, he was clearly straying from his lane. After all, what’s law got to do with evolutionary biology, right? Except the substance, this time, was one of interest to both law and science, but more importantly, the peer review process had morphed from an accepted paper into a petition demanding the scholarship be “deplatormed.” It’s an issue that would concern any rational person. Wright was right.

Law prof Govind Persad wrote the paper. If his name doesn’t strike a bell, it’s likely because his area of scholarship is health law, which tends not to intersect regularly with the issues that concern criminal defense lawyers. Although the subject of the paper, triage, shouldn’t be entirely unfamiliar to regular readers. The paper was timely and important, which is likely the problem.

This paper explains why the two core goals of policies proposed or adopted in response to the COVID-19 pandemic that allocate scarce medical resources by using medical evidence—saving more lives and saving more years of life—are compatible with disability law. Disability law, properly understood, permits considering medical evidence about patients’ probability of surviving treatment and the quantity of scarce treatments they will likely use. It also permits prioritizing health workers, and considering patients’ post-treatment life expectancy. All of these factors, when assessed based on medical evidence and not inaccurate stereotypes, are legal to consider even if they disadvantage some patients with specific disabilities.

Two keywords should immediately jump out at you: stereotypes and disabilities. As with almost every harsh fact of reality, evolutionary biology notwithstanding, we are constrained to make decisions based either on ideology or facts and reason. That didn’t sit well with the mob.

Open Letter to the Yale Law Journal Denouncing Ableism and Eugenics

At the bottom, there’s a curious notation that the open letter wasn’t created by Yale or Harvard law students, but “This form was created inside of New York University. Report Abuse.” So what’s their beef?

The forthcoming article “Why Disability Law Permits Evidence-Based Triage in a Pandemic” by Govind Persad misrepresents the disability rights movement and weaponizes disability law to support a harmful argument rooted in ableism and eugenics. We recognize the importance of “sparking conversation and encouraging reflection among scholars and students” as the Yale Law Journal strives to do.

However, not every contrary opinion furthers the discussion, legally or ethically. As the top law journal in the country, Yale has the utmost control over what it selects for publication and carefully curates the voices it chooses to elevate. These choices are not without consequences — they carry great weight in the legal community. Viewpoints that advocate for actions rooted in eugenicist ideologies do not further productive discussion about disability law or medical ethics, but rather further ingrain the long-discredited idea that certain lives are not worth preserving.

Whether Yale Law Journal carries much weight within the legal profession is a subject for another day, but that legitimate scholarship that fails to comport with social justice ideology should be “deplatformed” to eradicate thought with which the woke disagree is a different matter.

Professor Persad picks up where Justice Holmes leaves off. He advocates that people with disabilities who have lower life expectancies or “benefit” less from treatment can make sacrifices to save more lives. The disabled community should not suffer from the shortcomings of society. This logic burdens only people with disabilities, and disproportionately people of color with disabilities, in a way that unthinkably reinforces the idea that not all disabled lives are worth living.

No, Persad isn’t arguing that ventilators be denied NYU law students because three generations of idiot is enough. The point of triage is to allocate scarce resources, which means some people are going to be “burdened,” and it should be determined based on fact and reason rather than sad tears. Outrageous.

We ask that the journal revoke publication of Professor Persad’s piece in light of these glaring issues. If the journal must move forward with publication for reasons outside its control, there must be a thorough substantiation of every citation to eradicate the rampant mischaracterizations of fact and law, many of which Professor Samuel R. Bagenstos indicates in his article.  Further, any publication of this piece must be couched within a clear context of the current global crisis and juxtaposed with Bagenstos’ work.

Notably, Michigan prawf Sam Bagenstos’ paper, arguing that basing triage on pre-existing disabilities would violate the law, is also being published. So you have one side and the other side of the question, scholarship presenting differing views of the law and ethics. If Bagenstos has the better and more persuasive view, his will prevail. If Gersad’s view is more persuasive, then his will prevail. That’s how the marketplace of ideas works, and should work.

But that’s unacceptable, as the open letter asks that Prof. Gersad’s paper be “revoked” or, if it’s too late, be undermined by the view that aligns with their ideology. Whether it’s because they fear that their view will fail in the marketplace of ideas or that they just can’t suffer the competition with ideas that counter theirs isn’t clear. But that they want to prevent Gersad’s scholarship from seeing daylight is their point, either way.

Regardless of how you resolve the concerns expressed in our letter, we hope that this will be a long-term impetus for training among your staff on issues within the disability community. Disability rights deserve their own voice, not one paternalistically filtered through the lens of medicalization and eugenics. We look forward to your response.

I look forward to their response as well. I hope it’s something along the lines of this.

6 thoughts on “The Mob Reviewed Yale Law Journal

  1. Dan

    Well, at least one of their demands is reasonable: the piece should be meticulously cite-checked. As should everything else that’s published there, of course.

  2. Jeff

    Isn’t the entire concept of triage based on the idea that “certain lives are [more] worth preserving”? Rejecting this base premise would imply adopting another method of selection. Perhaps First-In-First-Out. Christ. Darwinism in theory and practice.

    I understand your point was that of representing the preferred view, and deplatforming the less woke options, but my mind is boggling too hard to focus. I apologize.

    1. SHG Post author

      No. The concept of triage is to allocate scarce resources where they will do the most good and be the most effective. The existential worthiness of lives has nothing to do with it. So Einstein, brilliant as he may be, might be denied a ventilator because of his age while some dopey kid with his baseball cap on backwards will get it because his chance of survival is far better, even though his contribution to society might be less than stellar.

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