The Harmful Article

Naturally, Joe Patrice, mustering his usual intellectual depth, championed the cause of the traumatized Duke Law students forced by their faculty advisors to include an article in the Journal of Law and Contemporary Problems.

After Jon Adler at Volokh Conspiracy pointed out that Patrice’s ATL post ran the gamut from vacuous to ad hominem, he noted that editorial decisions at this particular journal were made by academics, and the academics did something that neither a group of Duke students nor Patrice could tolerate: They included an article that failed to adhere to the social justice orthodoxy.

Seven Duke law student editors quit the journal in protest. Now that the issue of the journal is out, the students are again fighting to show how they were right to stand up for their moral values and against the pain and suffering the article caused Duke law students and the LGBTQ community. What was so horrific, so traumatic, so very wrong as to generate this extreme reaction?

The article, written by Kathleen Stock, is entitled “The Importance of Referring to Human Sex in Language.” What about this article makes it so harmful that these students resigned rather than suffer its publication?

On the one hand, these are students who expect to someday grow up to be lawyers who believe that they are taking a stand for morality by fighting against this heresy of rejecting the transgender position on word usage.

For centuries, the English language concepts of woman and man have been understood as referring only to adult female and male humans respectively, whilst girl and boy have been understood as referring to the younger versions; and nearly all – perhaps all – other natural languages have had equivalent ways of systematically differentiating between male and female humans. Yet we live in a cultural moment when adjustments to the traditional understandings of womanhood, manhood, girlhood, and boyhood are being urged upon language users, sometimes by those with great institutional influence in Global North  societies. We are told by progressive-styled organisations and leaders that, quite literally, transgender women (henceforth, “trans women”) are women, and transgender men (henceforth, “trans men”) are men. Since on ordinary understandings, trans women are by definition biologically male and trans men biologically female, this looks like a radical shift in usage.

Is this a fair subject of debate, of discussion? So it would seem, even if the argument fails to persuade. But that’s not the issue raised by the students. Their issue is that this article is inherently transphobic, which makes it inherently harmful. They refuse on moral grounds to be party to the publication of an article that harms transgender people.

On the other hand, there is a battle for control over the editorial content of a journal, one where Patrice notes the students don’t get paid for their labor, where the faculty’s decision to include dangerous writings compelled the students to do one of three things: Let it go, try to change the faculty’s decision or, as they ultimately did, resign.

Resignation is certainly their right and a principled response to something the students found intolerable, even if their measure of tolerability was childish and myopic. While they may not deserve any respect for their melodrama over an article that wasn’t as shallow as their ideology, they at least deserve respect for their response to it. Of course, they knew how the journal worked before they signed on, of their own volition, even if all this swirls far about Patrice’s head. The students were familiar with the words “academic freedom,” even if the concept eluded them.

But what’s missing from this battle is the fact that these resigning law students make no effort to proffer a substantive argument against the merit of this article. Their claim is to stand for morality. Their grievance is that a contrary idea is harmful. In their view, they are right because they are right. Patrice does his best to characterize the correctness of the students’ moral stance as against the shibboleth of “academic freedom.”

Alas, this is more or less what was expected in a situation like this. Academic freedom is, of course, an important value, but it’s also excessively deployed as a shield for professors to opine and behave in ways that marginalize others. From the unfortunately extensive population of white professors demanding to use the n-word in class to the continued saga of Amy Wax’s tenure at Penn Law, academic freedom is always raised as the defense when professors take actions that students — especially marginalized students — see as hurtful attacks on them as members of the university community. A “vigorous and open exchange of ideas” is valuable only to the extent it improves the academic mission of improving the human condition. Is Trans skepticism within that field? It shouldn’t be, but here we are.

In contrast, the faculty editors explained their rationale for inclusion.

Like the broader institution of which we are a part, Law and Contemporary Problems is committed to the vigorous and open exchange of ideas. The journal publishes issues that engage with matters of contemporary legal importance and feature contributions by a range of scholars in different disciplines. The issue on Sex in Law was approved in Fall 2020 by both the faculty advisory board and the 2020-2021 student editorial board after extensive discussion. The current student board members have recently asked that one of the pieces in that issue be removed. We respect the concerns and commitments of the students who have chosen to resign, but what they have asked of us is inconsistent with the journal’s core scholarly mission.

Whether you are persuaded by Stock’s view or not isn’t the point. The point is whether law students are now so fundamentally incapable of suffering a view that conflicts with their ideology that they feel compelled to resign from a law journal rather than be “complicit” in causing harm to a “marginalized community,” and what this portends for their fitness to be lawyers.

When law students lack the capacity to grasp that any views with which they disagree aren’t inherently wrong and evil, dangerous and harmful, but differing views, they lack the ability to fulfill their duty as lawyers. Not that all Duke law students are necessarily so insipid, but these students should be handed a dime. They may have a future as social justice warriors, but not as lawyers who have to mount serious arguments on behalf of their clients. It’s not enough to claim “morality” and cry “harmful” and expect their clients to walk out.

9 thoughts on “The Harmful Article

  1. rxc

    This is a variant of the concept of “settled science” which does not allow anyone to question a position that has been determined to be progressively acceptable. Any questions about it threaten the progressive project, and cannot be allowed to be asked, or discussed. In some fields, no one is allowed to do any research on the subject – it is resolved and closed and the results chiseled in stone.

    They are trying to transform society, and they want the new lawyers to think differently from what you learned and have practiced. Their idea of the “duty of lawyers” is different from yours, and they are not willing to wait for you and your dinosaur colleagues to all die before it can change. It is all about changing society, one discipline and one institution at a time. And you are not allowed to question that transformation.

    1. SHG Post author

      While your point is well taken, comparing it to any formulation of science troubles me. This is religion, a belief system without rational basis no different than any deity whose “word” cannot be questioned.

      1. Pedantic Grammar Police

        What do you think “settled science” is? Any dogma that can’t be questioned is religion, regardless of what they call it.

      2. rxc

        PGP is correct. The culture war has morphed into a religious war. The attackers (the progressive left) have decided that certain aspects about people and our society are facts that they do not question and cannot be questioned by anyone else. Anything that conflicts with those beliefs must be destroyed. This is the absolute definition of a religion.

        The war is being fought on many fronts, I used to worry about STEM, but the invaders are already inside the keep, and they have a powerful attack in progess against the entire energy structure in the country. It started 60 years ago and now we have people like Naomi Oreskes writing articles that explicitly state that there is no need for any more research on climate change, because it is accepted, settled science, and more research would only muddy the waters.

        You lawyers were infiltrated a long time ago, too, starting with Ralph Nader and his Raiders. Trying to transform the legal system. They are much more open about it now, so you ignore them at your peril.

        1. SHG Post author

          Notice anything ironic about your admonition about ignoring them at our peril give the post to which you’re commenting? My only issue with your first comment was framing it as science rather than religion. This comment went over the edge. You were so close and blew it.

          You and PGP have been given more than enough space today. This week. Maybe forever.

      3. Dan

        It is science as religion (i.e., science vs. The Science), and while that’s been going on for a long time, it’s really ramped up over the last couple of years. You’re not allowed to question The Science™ (no matter how often it may change) about Covid, masks, vaccines, Ivermectin, etc, and if you do, there’s a good chance your Twitter account, your YouTube channel, and/or your Facebook page will go away. That, of course, is as unscientific as it could possibly be, but it’s still The Science™.

        By the same token, despite any real science to support it, The Science has decided that a man who (says he) thinks he’s a woman, is actually a woman. And you can’t question it, or dispute it, for to do so would be harmful to them–The Science tells us that too.

  2. Miles

    While it’s hard to say just how pervasive this ideological certainty that they, after all of human history, have finally found “morality,” but I’m far more surprised that the prawfs actually grew a pair and refused to acquiesce to their hissy fit.

    From what I see of prawfs, they either lack the guts to say “no” to the children or are just as lost to ideology as their students. Either way, they are incapable of producing lawyers who can muster an rational argument or withstand the “harm” of disagreement.

    1. SHG Post author

      That struck me as well. While I’m surprised that other Duke prawfs didn’t lose their minds over this, I don’t know whether this is a good sign or merely some form of enlightened self-interest given how many academics have been taken to task/canceled over their scholarly interests.

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