Law reviews are typically sleepy, student-edited journals that publish turgid scholarship. The articles may be read by specialists, and they are often read by no one beyond the author and editors. But Columbia University law school’s law review has received a rare burst of public attention this week.
According to various media outlets, the law review’s board of directors, composed of faculty and alumni, tried to censor an article critical of Israel. Except that’s not what happened at all. The true story involves a faction of the law review secretly breaking all procedural rules and customs to publish a piece of ideologically driven claptrap.
The claptrap in question is an article by graduate student Rabea Eghbariah, “Toward Nakba as a Legal Concept.” To say that the article is of poor quality not worthy of an elite law review like Columbia’s, considered one of the three or four most prestigious legal journals in the United States, would be an understatement. The article reads as if one asked ChatGPT to disguise a lengthy, biased, inaccurate propaganda piece as legitimate scholarship, making it a dull read and throwing in hundreds of footnotes to dubious sources.
But the article’s poor quality is not the nub of the problem. Elite law reviews publish bad articles all the time. This is especially true in recent years, when law reviews have announced a commitment to social justice. This affects both the staff they select, such as four DEI editors at the Columbia Law Review, and the articles they decide to publish. The result is that ideological and diversity considerations trump a commitment to trying to publish leading scholarship—something that the second- and third-year law students that staff law reviews are generally unqualified to do even when they try.
So while the law review should be embarrassed to publish Eghbariah’s arrant nonsense, the real problem is that a cabal of editors, apparently including the former editor in chief, Margaret Hassel, under whose leadership the piece was commissioned, conspired to ensure that anyone who might have objected to publishing the article was kept out of the process.
Law reviews like Columbia’s have boards of article editors, which typically vote on which articles to accept from the thousands of submissions they receive. A well-placed source at Columbia told me that this article, by contrast, never went to the full articles committee. Instead, it was apparently solicited secretly by a few law review editors, and never shared with the full articles board. The article was accepted for publication in November 2023; I’m told that at least one articles editor did not learn of its existence until last Saturday, June 1, just a few days before it was scheduled to be published.
Articles the Columbia Law Review is considering for publication typically receive peer review by outside faculty before the articles committee votes on publication. I know, because I have served as a peer reviewer. This article, having been accepted by a cabal outside the normal articles committee process, almost certainly was not sent out for peer review.
Finally, articles accepted by the law review are typically edited by a random group of students selected from among the hundred-or-so strong group of editors. A source at Columbia, however, reveals that the article was edited only by a tight cabal of students, handpicked by the editors who decided to accept the article. They intentionally kept most members of the law review in the dark about the article’s existence.
When student editors discovered the deception, they appealed to the law review’s board of directors, which ordinarily plays only a ceremonial role in law review goings-on.
In a recent letter circulated to student members of the law review, the board explained what happened:
On Sunday afternoon the Board became aware that the Review would be publishing Toward Nakba as a Legal Concept in the May volume to be released on Monday, June 3. We were also informed that this piece had not been subject to the usual processes of review or selection for articles at the Law Review, and in particular that a number of student editors had been unaware of its existence until two days before (Saturday, June 1).
The secrecy that surrounded this article’s editing and substantiation review is unacceptable. It is also unprecedented, in that every piece is either worked on by, or available on request to, all student editors during the editing process. Whatever the intent, such secrecy is a profound deviation from the norms of respect, trust, and collegiality on which the Review depends. It also inevitably raises questions about the adequacy of the editing and substantiation processes to which the piece was subjected.
As the letter goes on to explain, the board did not, as alleged by some media sources, then censor the article. Rather, they asked that given the irregularities, the review hold off on publishing the article for a few days until other members of the law review, including excluded article editors, could provide input.
Instead, after agreeing to the delay, the editorial cabal chose to publish the article on the law review website before any such input could be provided. In return, the board of directors pulled the plug on the law review website, pending further developments.
As if this misbehavior was not sufficient, after the board of directors suspended the website, the editorial cabal apparently leaked the story to the Intercept, an anti-Israel, leftist website, to make it appear that they and the author were victimized for an article criticizing Israel.
The New York Times chimed in on the side of the cabal, claiming that the “decision to suspend access to the website is the latest example of how American universities have sought to regulate expression that is highly critical of Israel amid concerns that it veers into antisemitism.” In fact, the board of directors’ concerns were entirely procedural, and they did not seek to regulate anyone’s expression.
The saga is not yet over. The board of directors decided to let the issue proceed as scheduled but ordered the law review to add a disclaimer to the issue on behalf of any students who were shut out of the selection and editorial process. These students quite rightly do not want to be held responsible for turning the law review into a propaganda sheet. The cabal, in turn, is resisting.
The entire incident is troubling, but perhaps not surprising. Since Hamas’s atrocities of October 7, the pro-Hamas faction at elite campuses has decided that the rules against threats, vandalism, disrupting classes, occupying parts of campus, and taking over buildings don’t apply to them. Why should the rules and norms of law reviews be any different?
David Bernstein is a professor at George Mason University’s Antonin Scalia Law School.
Original News Source – Washington Free Beacon
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