The Emory Law Journal Scandal: Coda

In my last article, I detailed the cancellation of Professor Lawrence Alexander’s invited contribution to the Festschrift honoring Emory University law professor Michael Perry. As I and many other commentators pointed out, the actions by the editorial board of the Emory Law Journal (ELJ) were a shocking abandonment of fundamental principles of scholarly discourse in favor of wokeism and the ELJ’s self-declared partisanship.

Since then, there have been a few developments. First, another scholar who yanked his Festschrift contribution in protest over the ELJ board’s immature tantrum has written on the controversy. Northwestern University law professor Andrew Koppelman published his account at the Chronicle of Higher Education, in a piece accurately entitled “Scandalous Suppression at a Law Review.”

Professor Koppleman notes that a Festschrift invitation “normally includes a commitment to publish if basic scholarly standards are met,” and that the demands by the student editors of the ELJ to bowdlerize Alexander’s article were a “fundamental betrayal of the mission of a scholarly journal.” Koppelman’s views are particularly poignant because he supports the “systemic racism” thesis that Alexander’s piece challenges. Despite this disagreement, Professor Koppelman nevertheless condemned the ELJ’s editors’ decision to nix the article because they found it “hurtful” and “divisive”:

The editors think that academic work ought not to describe what the scholar takes to be reality if revealing or calling attention to that reality is “hurtful” and “divisive.” That notion, which is increasingly common, attacks the scholarly enterprise at its root. It is increasingly common. It handicaps us in addressing the genuine problems of racial inequality. It conceives antiracism as a determination to insulate oneself and one’s friends from uncomfortable ideas: “Woke” becomes a synonym for sleepwalking. This self-lobotomization will incapacitate one from thinking about how to actually improve the lives of poor African Americans, but that isn’t as important as avoiding hurtfulness.

I applaud Professor Koppelman for taking a principled stand for scholarly discourse and intellectual diversity.

Prior to the publication of Professor Koppelman’s article, the Emory Law School released a public statement, asserting that:

The editorial board’s requested changes were not intended to censor the author, but rather to ask that the author address concerns regarding the degree to which the submission met the quality and sourcing standards of the Journal and properly focused on the impact of Professor Perry’s scholarship. The author declined to consider the edits and pulled the article from publication. The students carried out their responsibilities to ensure the high quality of the work published in the Journal in a professional manner.

The law school and the Emory Law Journal board continue to maintain a deep commitment to academic freedom and to fostering robust debate about important and sometimes controversial topics.

The ELJ’s position was also defended in pieces by author John K. Wilson and legal journalist Joe Patrice. Wilson’s piece claimed that the ELJ’s cancellation of Alexander’s article was the “standard operating procedure for any publication,” and rejected criticism of the ELJ’s actions by law professors such as Gail Heriot and Jonathan Turley as “baseless accusations of bias about editing a badly written essay.” Wilson concludes:

The attacks on the Emory Law Journal reflect the ideological blinders of our times. So many people are convinced that conservatives are oppressed on campus that they jump to conclusions that confirm their presumptions at the first hint that some “woke” student might be concerned about “hurtful” language. But I think the details about this case show a very different picture from the initial reports, and reveal that the Emory Law Journal editors made reasonable reactions to a deeply flawed submission and were still open to publishing it.

Writing at Above the Law, Patrice similarly claimed that the ELJ’s demands were justified because the article was not properly supported by citations and because it contained other assorted flaws. Thus the cancellation of the piece was not based on censorship or ideology but on routine editorial decision-making. Patrice also dismisses critics of the ELJ (especially Professor Jonathan Turley, toward whom he appears to have a particular animus) as being conservatives from the “Volokh Conspiracy Extended Universe,” concluding that “[t]hese professors simply aren’t serious people.”

These defenses thus boil down to 1) claiming that the ELJ simply made reasonable, routine editing requests that Professor Alexander refused to make; and 2) denying that the ELJ had any ideological basis for its actions. Neither of these arguments survive scrutiny.

[Related: “The Emory Law Journal Abandons Scholarship for Wokeism”]

Regarding the first claim, we ought to start with the edits the ELJ actually requested that Professor Alexander make. (In private communications with Wilson and Patrice, both admitted to me that they had never seen the “editor’s memo” in question, and Patrice further indicated that it would not have mattered, because it was “superseded” by the editor-in-chief’s ultimatum.) Per my communication with Professor Alexander, here is the complete memo that Executive Articles Editor Shawn Ren sent him (hard returns and emphases are mine):

MEMORANDUM TO: Professor Lawrence Alexander

FROM: Shawn David Ren, Executive Articles Editor, Emory Law Journal

DATE: December 3rd, 2021

RE: Substantive Memorandum for Michael Perry and Disproportionate Racial Impact

On behalf of the Articles Committee and the Emory Law Journal, I want to convey our enthusiasm to be publishing your essay in Volume 71 of ELJ. We look forward to working with you as we prepare your essay for publication.

This memo provides revisionary and editorial suggestions for your essay. The Articles Committee has prepared this memo for your consideration, but we want to reiterate that our comments are merely suggestions and you should feel free to incorporate or dismiss these suggestions as you see fit.

This memo serves as a starting point in our editorial process, and we hope your experience with us will be rewarding throughout. These comments consider the perspective of the reader, who may not be familiar with the topics discussed in your piece. Thus, some of the comments may seem less necessary for academics and practitioners who are already well-versed in this space. Given the broad readership of the Emory Law Journal, these comments provide some insight into how novices might approach your essay. This memo focuses more on structure and clarity, rather than technical or line-by-line edits that will be addressed by the Executive Managing Editors and the Editor-in-Chief later in the editing process.

The bulk of this memo focuses on organization and readability suggestions that will make this essay even easier for a reader to absorb and engage with your piece.

• We appreciate your kind opening remarks to Professor Perry in the essay.

• In the Introduction and before the start of Part I, after the last sentence (ending with “contemporary importance”), we suggest adding a brief roadmap (“Part I will . . . Part II will . . . etc.”) so that the reader can better keep track of the ensuing discussion.

• In Part I, you reference Professor Perry “defending the Court’s aversion in Washington v. Davis.” Only after the block quote do you mention that Professor Perry finds the previous argument insufficient. We suggest re wording so that the reader does not mistakenly believe that Professor Perry is defending the Court. One suggestion: instead of “Here’s what he says defending the Court’s aversion . . .”, a re-wording to say “Although he disagrees with the Court, he provided an explanation of its aversion in Washington v. Davis . . .”

• When discussing the standard of review and the DRI test, you say that it requires more than the rational relationship but less than strict scrutiny. A reader might wonder if you are describing intermediate scrutiny and, if so, why you do not use that term. We suggest mentioning whether the DRI test is basically intermediate scrutiny or, if it not, how it is different.

• To start Part III, you mention that your “interest in Michael’s 1977 article on DRI lies . . . on its relevance to contemporary racial politics.” You then proceed to discuss (the lack of) systemic racism and critique retributions. However, without tying these discussions to equal protection and, particularly, the relevant work of Professor Perry, a reader might strain to find the connection between these topics. We suggest (1) explaining how exactly your criticism of systemic racism and retributions pertains to what Professor Perry wrote on equal protection, or, alternatively (2) deleting that section.

We also would like to note that as a prudential matter, the refutation of the presence of systemic racism might be a highly controversial viewpoint. We believe that re wording or removal of this refutation would help focus the discourse on the substance of your primary analysis.

 We would like to reiterate our excitement about publishing your essay in Volume 71. We believe your paper will be a wonderful contribution to the Festschrift honoring Professor 3 Perry. Please do not hesitate to reach out if you have any questions or comments about the feedback in this memorandum

This is the kind of response one expects a law student editor would send to a law professor contributor. However, note that there is no mention of any “hurtful and needlessly divisive” words or insensitive language, nor any lack of sourcing, nor indeed anything particularly amiss that would warrant rescinding a publication offer. Indeed, Mr. Ren reiterated the ELJ’s excitement regarding the article, and also specifically told Professor Alexander that the points in the memo were merely “suggestions” that he was he was free to incorporate or dismiss.

Professor Alexander responded as follows (e-mail addresses omitted):

From: Lawrence Alexander

Sent: Friday, December 3, 2021 5:31 PM

To: Ren, Shawn

Cc: Kerker, Danielle

Subject: [External] Re: ELJ Special Issue—Substantive Memorandum

I read your memorandum regarding my contribution to the Perry symposium. With respect to your first suggestion, you may add the following paragraph just before Part I:

In what follows, Part I will deal with disparate racial impact–the Supreme Court’s view of it, and Michael’s view of it. In Part II, I will assess the merits of  Michael’s view. Finally, in Part III, I turn to disparate racial impact and today’s racial politics.

With respect to your other suggestions, I prefer leaving the text unchanged. And I’m aware that my view in Part II is controversial. That doesn’t render it incorrect.

Best,

Larry Alexander

Thus, contrary to Emory’s official statement, it was only after Professor Alexander declined, as the ELJ told him he could, to accept certain “suggestions” that the editorial board decided the article was so “hurtful” and “divisive” that it could not publish it. As noted by law professors Koppelman, Turley, Heriot, and others with decades of experience working for and with law reviews, this was hardly the typical or expected editorial behavior of a student-edited law journal.

[Related: “Disrobing the Aboriginal Stalinists on a Canadian Campus”]

As to John K. Wilson’s bald opinions to the contrary, I note that he has zero experience as a law review editor, law review member, law student, lawyer, legal educator, or legal scholar. (His degree is similar to that of Jill “Call me Doctor” Biden—a doctorate in education.) While Wilson is certainly entitled to his opinions, his lack of experience and expertise regarding the practices and operations of student-run law journals renders them of little weight, especially when made in contradiction of those who actually do have such expertise. Stated differently, were a litigant to submit Wilson’s opinions of what “normal” law journal-editing practices are, his lack of material expertise would almost certainly lead a court to exclude them as inadmissible “junk” opinions under Daubert.

Joe Patrice was at least an editor of a law review when he was in law school, although I daresay all the professors whose opinions he blithely dismisses have far more experience with scholarly law journals than he does. But as to his claim that the ELJ’s critics were ideologically motivated, what of Professor Koppelman’s condemnation? As I wrote to Patrice, no one can credibly suggest that Prof. Koppelman is anything but well left of center. Koppelman also has, as Patrice does not, first-hand knowledge of what the ELJ conveyed it wanted for the Perry Festschrift. Did that change or affect his analysis? Patrice’s response was “[y]eah, sometimes ‘Ivory Tower Blood’ is thicker than water.  Doesn’t change anything.” (Draw your own conclusions.)

Was the ELJ board’s change of heart about Alexander’s article ideologically motivated? Professor Koppelman thought so, and the actual evidence suggests that it was. The ELJ proudly proclaims that it is “committed to being an anti-racist organization, both in our ranks and in our scholarship.” It had no problem recently publishing an article with racialized language and arguments far more “hurtful” and “divisive” than what it claims disqualified Alexander’s piece—because, of course, the article favored the ELJ’s stated ideological stance. That a flagship law journal—which purports to be a scholarly publication—would openly pledge allegiance to a particular ideology is bad enough. But to say that the ELJ’s decision was not ideological discrimination is akin to John Stewart’s infamous “clown nose on / clown nose off” defense: “we profess to be an ‘anti-racist’ organization—but when we’re called out for it, we’re not really ideological at all.”

When I was an articles editor at the Texas Law Review decades ago, a wise TLR alumnus reminded the new editors that we were caretakers of that organization. We did not found it, nor did we own it—we were just given the keys to it for a year, and we were expected to preserve and enhance its reputation for serious scholarship for those who came after us.  (Regretfully, recent TLR boards have disregarded that admonition.) By eschewing basic principles of scholarly discourse in favor of wokeness über alles, the ELJ editorial board has squandered and damaged the journal’s reputation. Its board members deserve every ounce of opprobrium that has been heaped on them for doing so.

As Professor Koppelman noted in the conclusion of his article, because law review boards change every year, he hopes that “in the future the Emory Law Journal will be run by editors who better comprehend their responsibilities.” But given that the Emory University Law School administration apparently has no problem with its students censoring free speech in the name of wokeness, I regretfully cannot share his optimism.


Image: Daniel Mayer, Creative Commons Attribution-Share Alike 3.0 Unported license, cropped

Louis K. Bonham

Louis K. Bonham is an intellectual property litigator. He is a graduate of the University of Texas (BA ’83, JD ’86), was an Articles Editor on the Texas Law Review, and served as a law clerk to the Hon. Edith H. Jones of the US Court of Appeals for the Fifth Circuit.

6 thoughts on “The Emory Law Journal Scandal: Coda

    1. Unfortunately, they are still relevant because in most states, no one can sit for the bar exam without having first graduated from a law school, and in most instances only a law school approved by the ABA. Law school doesn’t really teach one “the law.” Practicing attorneys will attest that what they need to know for their careers they learned post-law school. Law school is an expensive barrier to entry into the legal profession, which is exactly why the ABA insists on keeping students there for 3 years. Moreover, law schools have largely been captured by “progressives” whose classes and research are geared toward activism on behalf of statist/egalitarian obsessions. If law schools disappeared we’d be better off.

    2. Good point. Kids telling scholars what is relevant and or necessary? The kiddies can do the research and “notes,”. They should have NO say on what professional scholars and or lawyers publish in any law review. Oh. They can fetch snacks.

  1. Mr. Bonham’s analysis relies heavily on an appeal to authority, which doesn’t help his case. However, the published emails are useful. The bullet point suggestions in the first email are general editorial suggestions except for the last point, which is substantial:

    ‘We also would like to note that as a prudential matter, the refutation of the presence of systemic racism might be a highly controversial viewpoint. We believe that re wording or removal of this refutation would help focus the discourse on the substance of your primary analysis.’

    So at least ostensibly, the Emory Law Journal editor believes the refutation does not belong because it is a digression. Nevertheless, he states he is willing to accept the article as is and does not require any changes.
    Professor Alexander believes his refutation is part of his central thesis– so the question remains: is it plausible that the rejection was based on editorial, not scholarly concerns?

    First, Alexander states in his introduction that the systemic racism refutation is central to his argument:

    ‘I intend to look at Michael [Perry]’s early work, and in particular, his work on equal protection. I think some of what Michael wrote on this topic was misguided. But I focus on it, not to find a bone to pick somewhere in Michael’s impressive body of work, but because his error in that early work has an analogue in today’s political discourse, which makes that error of many years past of contemporary importance.’

    Alexander’s article makes an abrupt transition from a criticism of Perry’s writings on disparate impact to Alexander’s view of systemic racism. He explains the relationship most clearly in his conclusion:

    ‘Although Michael [Perry]’ arguments were much more measured and limited than those today to which I am referring, if his arguments should be rejected, then today’s more extreme demands surely must be.’

    This seems to be the crux of Alexander’s reflection, however– so it appears the suggestion from the journal editor is at very least disingenuous. One also expects a distinguished journal to keep its word. These things raise an eyebrow, at very least.

  2. I disagree with Bonham’s shocking abandonment of fundamental principles of scholarly discourse. Bonham argues that I lack the understanding of “normal” law review practices. It’s true: I don’t know how law reviews normally operate, nor do I care. If it is normal for law reviews to pander to law professors by publishing articles unedited, then I applaud any editor willing to violate these awful norms by applying actual scholarly standards. Nor does the fact that a lower-level editor offered some optional editing suggestions prevent the editorial board from applying scholarly standards to a submission. Bonham continues to falsely declare that Alexander’s article was “cancelled.” In fact, the editors were explicitly willing to publish his right-wing views. They simply wanted to apply scholarly standards of basic editing, and Alexander reacted with an immature tantrum by refusing to allow any editing and withdrawing his article.

    1. Perhaps it would be interesting to review how law REVIEWS came to be and what their pre-Lexis purpose was.

      And why they COULDN’T be peer-reviewed. Hint: 11th Amendment in an era before national law schools.

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