One of the goofiest things about legal scholarship is that it’s published in student-run journals. Law students pass judgment on law profs’ articles, which would be remarkably funny but for the fact that getting published is the lifeblood of academia, particularly for pre-tenured academics who need to prove their mettle before they settle in for a life of turtlenecks, leather arm patches and sherry, provided they are never left alone in a room with a student of the opposite sexual orientation. But I digress.
Emory Law Journal invited Larry Alexander of the University of San Diego law school to write an article. He accepted. And you’ll never guess what happened.
But it was not to be. After offering to publish Larry’s essay (which was for a Festschrift for Professor Michael Perry) and then trying to edit away the meat of his argument, the ELJ has now withdrawn its acceptance.
Editor-in-Chief Danielle Kerker sent an ultimatum to Larry: Either “greatly revise” the essay or the ELJ will have to “withdraw[] our publication offer.” Larry understood how destructive to academic values it would be to cower under such pressure. He declined to revise the article. Good for him.
Kerker wrote that the ELJ Executive Board had “unanimously stated they do not feel comfortable publishing this piece as written.” “We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive.”
What could be so awful, so hurtful, so “unnecessarily” divisive, as to compel a law student, even one in the exalted position of Emory law review’s editor-in-chief, to take such a position with a law prof?
“Additionally,” she wrote, “there are various instances of insensitive language use throughout the essay (e.g. widespread use of the objectifying term ‘blacks’ and ‘the blacks’ . . .) . . . .”
(If the term “black” in reference to African Americans is “objectifying,” a lot more than just Larry’s essay will need to be canceled. As for “the blacks,” I have been told that some consider this to be a rude way to refer collectively to the members of a race. But, even assuming that it would be rude, Larry wasn’t using the term that way. He was using it to refer to the particular blacks in one of his hypotheticals. The “the” was intended to make that clear.
To be frank, this strikes me as “objectifying” as well, and as much as I’m disinclined to take the position that more words are necessary to make things more socially palatable, I would have used the words “black people” rather than “blacks.” But then, without the context of its usage, I’m reluctant to condemn and left to wonder whether, had the editors instead requested the phrase “black people” replace “blacks,” Alexander would have refused to make the change.
But as Gail Herriot argues, this was used as a proxy for their inability to fault the core of the article.
The editors probably wish they could argue with Larry’s discussion of disparate impact in constitutional analysis. But, there, Larry was just being mainstream: He was agreeing with the Supreme Court in Washington v. Davis (1976) that a statute that was not intended to disadvantage a particular race or ethnicity isn’t rendered unconstitutional simply because it has a disparate impact on such a group.
(Why not? One reason is that all laws have a disparate impact on some racial or ethnic group. If your theory of the Constitution renders all laws unconstitutional, you need to re-think. There are a lot of racial and ethnic groups out there. They differ in many ways—culture, heredity, religion, geography, history and just dumb luck. There is no need to jump to the conclusion that discrimination underlies every disparate impact.)
While this may be the law, it is hardly a mainstream understanding of constitutional law anymore. A core progressive belief is that anything that results in disparate impact violates equal protection since there can no other acceptable explanation for different racial outcomes. The days of Griggs v. Duke Powers‘ limited disparate impact analysis, applicable only to employment discrimination and only an evidentiary presumption, not a per se rule, are over. Not in law, yet, but in pop opinion.
I suspect the real beef the ELJ Executive Board has with the essay is that Larry explicitly stated that racism isn’t the problem today. Instead, he pointed to “the cultural factors that have produced family disintegration, which in turn portends poor educational achievement, crime and poverty.” This is just mainstream conservatism: Rearing children in one-parent families is not ideal, no matter what your race or ethnicity. It can’t always be helped, but all too often it’s the result of irresponsibility. At 69.4%, the out-of-wedlock birth rate for African Americans is particularly and tragically high.
If this harkens to the argument that bourgeois values are beneficial, and the myriad excuses about how they oppress people and so should be rejected, that’s because it is. This argument suggests that disparate outcomes aren’t caused solely by external forces, prejudice and discrimination, but by personal choices and a failure of responsibility. This has long been the conservative position, that many of the problems suffered by black people come from the breakdown of the nuclear family.
Whether this is something you agree with, in full or part, doesn’t matter. What matters is that this was the argument Larry Alexander made in his invited article to Emory Law Review. What matters is that this is hardly an outrageous perspective, but fairly banal. What matters is that the law students at Emory Law Journal refused to publish it.
Here’s the good news for Larry’s essay: This opera isn’t over. Two law professors (one conservative and one liberal) have withdrawn their essays from the ELJ in protest over its treatment of Larry. Two more law professors, both of whom I believe to be left of center, have said that they will publish only if they can include a blurb in front of their essays that protests the decision not to publish Larry. They do not necessarily agree with everything in Larry’s essay. But standing up for him doesn’t require agreement.
Does this reflect a coming to terms for the Legal Academy with their students’ myopic grasp of acceptable argument, or is this just a few of the remaining liberal standing up for academic freedom in the face of progressive hegemony. That Alexander’s article will be “divisive” in this academic atmosphere seems obvious. That it is “hurtful” is irrelevant, the argument being what it is despite any complaint that it fails to make students feel good about their choices. But it is a rational and legitimate argument, whether you agree with it or not, and that makes its publication necessary.
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Increasingly elements of society expect that the law will bow to the current popular will, rather than an abstract legal basis derived from millennia of philosophical argument and legal precedent, grounded in a common societal understanding of the nature of good and evil. To certain elements the old axioms, such as the Ten Commandments, are irrelevant. Their inspirational leader, Barack Obama, once said that the Constitution should be “fluid” and they take that as their Gospel.
This sort of jurisprudence is not new, it flourished in 1930’s-40’s Germany and the Soviet Union. It continues today under multiple totalitarian regimes. The law is our defense against totalitarianism. If this is the future of law, then all our futures are bleak.
“A core progressive belief is that anything that results in disparate impact violates equal protection since there can no other acceptable explanation for different racial outcomes.”
Indeed, but only a disparate impact in which a (favoured) racial minority suffers some disadvantage. In the past one might have thought that the term “anti-racist” simply referred to one who opposed racism and making decisions based on race (why on earth would one think that), but How To Be an Antiracist is different now: institutions and programs must actively work to create disparate racial outcomes going the other way, because that’s equity; it’s justice. It’s not only permitted by the equal protection clause but demanded by it.
You’re either with us or against us. Get with the program Professor.
They still only care about the disparate impact at a superficial level, similar to how they only care about deferring to racial identity for their ideological allies. They won’t call harsher gun laws unconstitutional, and they wallow in their own sources of disparate impact making the disparities they perpetuate more intractable. As you indicate in your last statement, the program (i.e. the power) trumps the ideal.
There’s an irony that what they call “divisive” is only relative to their own narcissistic righteousness, in that it is generally unifying in large numbers against them. Like a political party rejecting candidates with bipartisan appeal because they cause friction with the party demagogues whose identity requires the contrast.
This certainly seems dumb as presented. But are the presenters trustworthy?
The heavy use of selective quotation and ellipses seems odd: If the letter is egregious, and the article is non-problematic, why not publish the entire letter and at least some demonstrative article text?
The article is available at Reason. [If you’ll allow the link, SHG: https://reason.com/wp-content/uploads/2022/01/AlexanderArticle.pdf}
Some who read it find it awful. I have not because, like Skink, I do not read law review articles for shits and giggles. And perhaps it is, which as szr aptly notes below, should generate another article explaining why.
If this was submitted and rejected, totally understandable. But if he was invited to write, then the fix for a bad article is a good article explaining why the article is bad. And we’re all better off for it.
I don’t think I’ve read a law review article since law school, which was a whole-lotta fancy restaurants and dive bars ago. My guess is the article will reach a wider audience if we post it on the wall of one of the newly-renovated meeting rooms in this here Hotel.
Perhaps they can show us, using a doll, where the bad article touched them.
This story is a perfect example of how progressive goals differ from (and interfere with) liberal ones.
Reason did us the favor of publishing Alexander’s article, and it is utter crap. Alexander asserts that the U.S. Constitution did not legalize slavery, which is a dubious claim at best (perhaps he is unfamiliar with Art. IV, Sec. 2, Clause 3?). He also reasons that imported slaves were better off in the US than they would have been in Africa.
A liberal approach to Prof. Alexander’s article would be to publish it along with responses from critics. Nothing would make the article appear more foolish than to allow it to appear in print.
But the progressive instinct to suppress unpopular ideas means no one is criticizing Alexander on the merits of his article. Sigh….
With “allies” like that, who needs enemies?
I wouldn’t be so quick to dismiss those two particular arguments as rubbish. I’ve heard reasoned, principled arguments for and against both. As you rightly point out, a proper approach might be to publish it, along with a rebuttal, but those two don’t make it rubbish just because they offend your sensibilities.
OK, so i went through and actually read it. I am not a lawyer, so I don’t read law journals, but Alexander’s article is not publishable by the standards of academic writing in general. Maybe law is different, but in every field I have worked in (which is surprisingly many), even invited articles are subject to peer and editorial review.
Part I seems publishable, whether it is right or wrong. Parts II and III devolve into a bizarre rambling rant against a wide range of progressive ideas and beliefs. It bounces around to so many topics that rebuttals would take many more pages than the article itself. Here are some sentences from near the end:
“Although racism could be a problem for blacks today, the reality is, thankfully, is that it isn’t.
The real impediment to the advancement of poor blacks – and everyone knows this,
regardless of whether they admit it – is the cultural factors that have produced family
disintegration, which in turn portends poor educational achievement, crime and poverty.”
In colloquial speech, you can say “racism isn’t a problem” and mean “racism isn’t the biggest problem”. In academic writing, if you say “racism isn’t a problem”, it means “racism isn’t a problem”. (Never mind that contractions are not acceptable in formal writing, either).
In colloquial speech, you can say “everyone” and mean “most people”. In academic writing, if you write “everyone”, it means “every single person.” If you are going to claim that every single person knows something and that they are lying about it, you have to give your evidence.
Journal editors are not expected to find a rebuttal writer for every asinine statement.
I have not read what the editors of the journal wrote to Alexander, which may well be worthy of criticism also. But, the decision not to publish the article in its current form looks reasonable.
If the rejection was grounded in poor writing or unacceptable vagueness, it would be different than a rejection for being “hurtful and unnecessarily divisive.” The irony of your comment is that you may be absolutely right, but what if these failings had nothing to do with the reason for rejection and it was based solely on heretical content?
From the few available quotes, it appears that bad writing or reasoning was not the reason for rejection, so it’s not relevant to the issue even if correct.
As you say, “From the few available quotes…”. Someone selected those for an article on Instapundit. We should not assume they are representative.
Better to assume nonexistent quotes are representative? Strong argument.
What you wrote does not follow from what I wrote.
The Reason piece published this morning provides a quote that wasn’t in the Instapundit piece:
” And, crucially, the discussion on racism is not strongly connected to your commentary on Professor Perry’s work, which is the focus of the Issue and the purpose behind the publication opportunity offered.”
That is a much nicer way of saying what I said, that the essay devolved into a rambling rant.
One thing to keep in mind about “legal academic” writing is that the standards are very different than academia generally, since law is very much an art and doesn’t even hold to the pretense of being a science like some other fields (sociology, government, etc) do. Aside from the fact that they’re student-edited, many law journal articles tend to be rhetorical exercises in persuasion, assertion, and polemic, rather than dry recitations of facts. You can read plenty of feminist legal criticism, critical race theory, or similarly situated perspectives coming from the left that use the same type of polemical language and style as Alexander’s article, just for different ends.
If this bothers you, don’t worry; nobody reads law review articles except other law professors and the student editors assigned to review the articles before they are published. Judges certainly don’t care.
I am forced to crack a wry smile. It would be disappointing if academic legal writing is on par with, e.g., postmodernist critiques of science, and thus Alexander’s article is actually close to normal. I suppose it isn’t all that unlikely.
You don’t know much of constitutional history or why the Constitution had to have some things included to pass.
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Who knew that South Park wasn’t kidding when Cartman committed a hate crime by calling Token “black”?