The Ethic of Responsibility and Working on Antisemitism

A few days ago, I wrapped up work with several Nexus-affiliated colleagues on a white paper seeking to provide guidance to college administrators about how various Israel-related buzzwords (think "apartheid", "settler-colonialism", "anti-Zionism") do and do not intersect with antisemitism. It was a group effort, and while I was a contributor, I was not the lead author. But my name will be on the finished product.

The paper is good. It is not perfect. Now, typically when people write that, they're damning with faint praise. I'm being literal. It is the work of a committee, and that means it is inherently going to be imperfect by the lights of any individual member. As in any group project, there are choices I would have made that were not acceded to be others; no doubt there were choices I made that other group members would not have incorporated had they had their lights.

In many ways, though, a project like this is out of character for me -- and it has given me newfound respect for anyone who engages in institutional political work (legislators, bureaucrats, etc.).

I've written before about how I'm an "institutionalist non-joiner" -- that is, I believe deeply in established institutions, but I also have little interest in directly participating in them. The reason for my reluctance stems from a strong desire to be in control of my own message, paired with the knowledge that any large institution will necessarily not perfectly reflect my own sentiments. It's the same reason why I rarely sign petitions -- unless I wrote the petition, it probably isn't going to say precisely what I want to say. And I don't like being a position where my name is on something that I wasn't wholly in control of. What do you do when someone say "well what about X clause", and you're like "well, I don't agree with X, but the totality was good enough"? My general answer is to avoid the problem -- I have a job and a life where I'm privileged to mostly be able to speak entirely in my own voice, and that's great.

Which makes this Nexus project, honestly, somewhat unnerving -- more so because it cuts to the heart of my own expertise. When this white paper is released, any critic can seize upon any portion of it they find suspect and say "Oh ho! How do you defend endorsing this!" And it will read as a limp reply to say "well, I didn't necessarily like that part" or "I would have phrased it differently." My name is on the document; it is natural to hold me responsible for what I signed onto. And so some part of my public reputation on my main area of scholarly specialization falls partially out of my control. Outside critics, not bound by the strictures of operating within a group, can snipe from the high ground.

Why did I agree to participate in drafting this document anyway? Well, I thought the issue was important, and I thought my contribution would make the resulting product better. I could have let others write the paper and then upon completion write a solo "here's what it should have said" rejoinder -- preserving my own unblemished voice at the expense of allowing a worse product to go through. But for whatever reason (and against all of my natural instincts), I decided to make the trade: I would participate in the collective endeavor to improve the document, and in exchange I would sacrifice some of my ability to control my own message.

The aforementioned inherent imperfection of group work applies to any political document -- and the more people involved and the higher the stakes are, the worse the problem gets. Our white paper involved less than a dozen people and has no tangible import other than whatever suasive authority we can muster. If one imagines a piece of legislation voted on by hundreds, or an administrative rule crafted by staff across countless government agencies, the problem multiplies. That work is simultaneously far more important than what I do, and also necessarily far more the product of innumerable compromises. For them, too, the realities of getting collective support and sign-off undoubtedly result in edits and alterations that they'd struggle to defend "on the merits". For them, too, the outside critic has a huge advantage in pot-shotting the most vulnerable elements and asking "how could you"?

But if there is to be political change, people have to be willing to take that fall. The extreme version of this is the government official in the Trump administration who knew the administration was evil, who knew that history would view them as a collaborator, but genuinely felt that if they stepped out they'd be replaced by someone who would do yet worse. But my thesis is that this core problem is not extreme at all, it is in fact ordinary and ubiquitous. Legislators have to be willing to vote for bills they know are imperfect, agency experts have to sign off on regulations they know are compromised. This is why Max Weber says that a pure "Ethic of Conviction" is incompatible with actual governance. Every academic who spends time in government leaves a record which a critic can peck away at as incompatible with their professed convictions, and they'll be right -- but not because the academic is a hypocrite. It is because political action is an inherently compromised endeavor, that needs to occur anyway.

For the most part, I don't have the stomach for it -- hence why this Nexus project is really an exception for me. But having gotten a tiny taste, I have more respect for those that are willing to engage, in good-faith, in the compromised and imperfect practice of governance -- knowing that at every point along the way they'll be forced to take hits to their reputation that in many ways they will not be able to truly defend.

UPDATE: The document in question is out. 

The Exceptions Aren't Exceptional, They're Just Bad

A few days ago, an academic journal run out of the University of Minnesota apologized after informing a would-be contributor from Israel that it was refusing to consider submissions from scholars affiliated with Israeli universities.

Today, the Columbia Law Review website is down, reportedly due to the publication of an article by a Palestinian legal scholar on the "Nakba" that occurred in the wake of and as part of Israel's war of independence and its establishment as an independent state. We're still getting details, but the word is that the law review's board of directors (comprised of faculty and alumni) sought to overrule student editors who wished to publish the piece and, failing to do so, took down the website.

I've really found valuable and thoughtful Paul Horwitz's comments on cases like this, and so too here. In particular, I agree with him that it's not right to refer to the Columbia incident as part of a Palestine "exception" to free speech or academic freedom, not because it isn't a breach of academic freedom norms (it certainly seems to be), but because it isn't especially exceptional -- whether we're focused narrowly on Israel and Palestine (as the Minnesota case, above, illustrates) or more broadly on "controversial" topics and issue areas.

I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception.

It is quite clear that speech that is harshly critical of Israel quite regularly faces sanction and obstruction that does not comport with free speech or academic freedom norms. But that's not an exception, that's an instantiation of a larger part that free speech and academic freedom norms have many fair-weather friends and so find themselves under serious pressure on the regular. This isn't to say that they don't do important work -- they do, and a lot of speech that probably would be suppressed ends up being permitted because these free speech principles do carry a lot of weight. But the notion that they are impenetrable juggernauts who only rarely and idiosyncratically find themselves challenged is just not true. One reason I try to defend these norms so vigorously is precisely because I recognize that their fragility is the norm, not the exception.

In general, I think I have a more positive outlook towards student-edited law journals than Paul does, and so generally take a dim view of any sort of faculty or administrative meddling in journal affairs (the notion that a faculty or alumni-comprised committee has any role beyond, perhaps, the most soft-touch advisory capacity, in determining what articles the Columbia Law Review does or doesn't publish is absurd to me). So it should come as no surprise that I also strongly agree with Paul that even if there were reasons to think that the student editors acted in a fashion that departed from their own normal rules or processes in accepting this article (which may or may not be true), any interventions that hypothetically might have been justified cannot take the form of an ad hoc, last minute decision to pull the piece from publication altogether.

Indeed, assuming that this article is slated to be part of CLR's print volume, I'm not sure what the board of director's end game is here -- are they going to pulp the entire issue? Even if the article is bad, wrong-headed, offensive (and I haven't read it, so it may be none or all of these things), I see no reason why any of those (for better or worse not especially exceptional) sins cannot be addressed via the normal mechanisms of academic inquiry and response. Prior restraint is not the right move. And if the Columbia board did what it is alleged to have done here, it is shameful and outrageous -- no less so if it is not "exceptional".

UPDATE: The Columbia Law Review board has issued a statement explaining why it took down the website. On my read, nothing they say justifies the decision. The only thing that's potentially eyebrow-raising is the claim that the piece was not selected via the normal article-selection process. But this probably (though not certainly) has less than meets the eye: it is hardly unheard of for a law review to solicit a piece outside the normal article-selection channels, which easily could be (but really shouldn't be) called a departure from the "usual processes of review or selection." For example, when I was a law review editor most pieces went through the articles committee (which I was on), but our book review editor had essentially carte blanche authority to solicit book reviews on his or her own initiative. While there might be some valid basis for complaint if this article was unusually sequestered from (actual, extant) norms and practices of how articles move through the CLR process, such problems do not to my mind justify the extraordinary remedy of taking down the website. The short version is that even if (and this not clear) there are valid process-based objections to what (some members) of the Columbia Law Review did here, that does not mean that taking down the website is an appropriate remedy. As Alexandra Lahav wrote in a thoughtful thread, sometimes events transpire such that there just isn't a way to "preserve the status quo ex ante."

One thing that hasn't been mentioned but which I think may be lurking in the background here is the recently announced boycott of Columbia University graduates by a suite of right-wing judges who've made very clear their intention to inflict collective punishment on the Columbia community for (real or perceived) bad behavior by particular actors. Threats like this understandably could make members of the Columbia Law Review who were not part of (and were not given the opportunity to be part of) the publication decision especially sensitive -- they have reasonable basis to fear they will be held responsible and retaliated against for choices they did not make and might not have even been aware of. I'm sympathetic to those students, but ultimately, the people who have put them in that position are the judges and other actors who have decided to endorse indiscriminate academic blackballing as a political tactic. As much as these students are being put in an unfair position -- and they are -- the board should not have cowered in the face of this blackmail. The principles of academic freedom are too important to be allowed to yield even in the face of a credible threat of external retaliation -- this is true when the boycotters are right-wingers furious about pro-Palestinian advocacy, and it's true when the boycotters are left-wingers livid about Israeli inclusion.

Roundup for Reading Days

We've just concluded our semester here at Lewis & Clark -- it's now "reading days" as students prepare for exams. I've already written my exam, so I'm going to use this time to clear some tabs off my browser. It's a roundup!

* * *

My latest article, "Liberal Jews and Religious Liberty," has been published in the N.Y.U. Law Review. It's good -- you should read it!

Standing Together is a joint Jewish-Arab Israeli group with a simple idea: under any future for Israel and Palestine, Jews and Arabs are going to have to live together. So no matter what your plan is for the future of Israel and Palestine, we have to start laying the foundations for mutual co-existence now. In that vein, organizational co-head Sally Abed, a Palestinian feminist socialist, had a message for the way international leftists are talking about current goings-on in Israel and Palestine: "If it's not helping, then shut the fuck up." I already posted a link to this on BlueSky and it basically went viral, but it's worth being memorialized here (and the entire piece is worth reading).

It's not surprising that Arab-Americans are reacting negatively to the Biden administration's policies regarding the Israel/Hamas war, but it may be surprising that more Arab-Americans now identify as Republicans than Democrats. That said, maybe not that surprising -- up through the 1990s, Arab-Americans were a swingy but lean-GOP voting bloc. And that makes sense when you think about it: it's a relatively socially conservative and comparatively affluent community; there's plenty of room for GOP appeal. 9/11 changed things dramatically, and one might think that continued rampant anti-Arab racism and Islamophobia would make the GOP brand toxic today. But between frustration with Democrats' continued pro-Israel stances and a backlash against socially liberal policies, there does seem to be an at least momentary shift back towards the Republican camp. We'll see if it holds through 2024.

I don't speak German so I can't backcheck the cited study, but this post claims that antisemitism is on the rise in Austria's Turkish- and Arabic-speaking communities ... but that rates are actually higher amongst persons who were born in Austria or lived there for some time compared to new immigrant arrivals. So far from validating the "imported antisemitism" narrative, the problem perhaps is that immigrants are assimilating a bit too well into traditional Austrian culture.

A sometimes-overlooked variable in the Israel/Hamas conflict is that most neighboring Arab states are not fans of Hamas either, viewing it as a destabilizing influence. Though Hamas' threat isn't as immediate to them as it is to Israel, it definitely still poses a threat. So there is quiet pressure emerging from Arab nations on Hamas to "disarm before it is destroyed."

Mark Harris is much, much more empathetic towards folks tearing down posters of Israeli hostages than I am, but in some ways that makes this essay -- documenting the sense of abandonment such an act generates amongst the Jews who see it -- even more powerful.

Tom Friedman has a great column from a few weeks ago on the "rescuers" in the Israeli Arab community who helped save their compatriots in the midst of Hamas' 10/7 attack.

I first heard about today's shooting attack in Jerusalem (which killed three civilians) via a social media post which used it to further emphasize the need for a "ceasefire". My first thought was "we're already in a ceasefire"; my second thought was "this demonstrates a problem with a 'ceasefire' -- even if Hamas agrees to it, other armed Palestinian factions won't feel bound." But apparently Hamas actually has claimed responsibility for this attack, so, take from that what you will vis-a-vis the vitality of the ceasefire.

I try not to be an alarmist about campus antisemitism, while simultaneously not being a denialist about its presence. Jews are not perpetually on the verge of mass expulsion, but nor is the entire concept of campus antisemitism a concocted astroturf campaign by bad faith right-wingers. All that said, this account in Rolling Stone (from a current student at Columbia) feels fairly reported and is harrowing.

Sadomasochistic Judging

I have a new article out, entitled "Sadomasochistic Judging", in Constitutional Commentary. Nominally a book review of Richard Fallon's Law and Legitimacy in the Supreme Court, it's a classic law review style book review where the book itself is a flimsy veneer allowing me to talk about things I already wanted to talk about. 

In this case, "Sadomasochistic judging" is the practice of finding legal legitimation via the fact that a judicial opinion hurts people -- causes pain. It's legitimating because it supposedly falsifies the persistent worry that judges are merely imposing their own policy preferences, the inference being that if the decision is painful, then it is not be what the judge wanted to do but rather must be what the judge was legally compelled to do. Judges hate causing pain, but they crave the legitimacy hit they get from decisions that cause pain, and so end up pursuing pain as a means of garnering this illusive feeling of legitimation. Hence, sadomasochism: judges gain pleasure from the pain of causing pain.

Here's the abstract:

What makes a judicial decision legitimate? Common answers include fidelity to legal texts and precedent, coherence to natural or intersubjectively agreed upon norms, or endorsement from democratically accountable actors. But while these criteria each have strong theoretical appeal, their practical usefulness as a means of validating any contested judicial decision is often limited. In cases of legal indeterminacy or the proverbial “hard cases,” many different outcomes can at least claim to fulfill these requirements. A decision which genuinely fulfills legitimacy criteria and one which is merely going through the motions often will be observationally equivalent. 

As a means of practically establishing legal legitimacy in a way verifiable to external observers, pain is an underappreciated but important element of judicial practice. Judges routinely brag of rendering decisions which are painful to them—upholding “uncommonly silly laws,” protecting “speech that we hate,” reluctantly permitting terrible injustices to persist because the law “ties our hands.” Far from being relegated to the embarrassed fringes, such cases play a central role in establishing judges as legitimate actors bound by law, and in many ways represent the demarcation line between good and bad judges—a good judge is one who does not flinch even in the face of great pain. Yet it should be clear that there is great risk in tying the validation of judges to the infliction and receipt of pain. To the extent judges are socialized into associating pain with legitimacy, the legal system that emerges will likely be one which needlessly and gratuitously inflicts pain.

This article is also special for another reason: it is the first one where my bio includes my new title -- Assistant Professor of Law, Lewis & Clark Law School. It's jumping the gun a little bit, but I don't think anyone will begrudge me my eagerness.

A Galaxy FAR, FAR Away Roundup

In my last roundup, I noted that I was going on the law school job market this year -- a process that commences with the charmingly named "meat market" in Washington this fall. The first thing that law schools receive from potential candidates, however, is the "FAR form" -- a one page document that's basically the back of your law professor baseball card: all your key stats, from degrees to teaching interests to publications. The FAR form gets distributed to law schools tomorrow, and once it's out the hiring season has officially kicked off.

Though if you like, this roundup also can be sponsored by this video about Star Wars.

* * *

Lyft is going to buy carbon-offsets for its rides. Nice.

Famed Holocaust and antisemitism expert Deborah Lipstadt: Trump didn't go far enough in condemning White nationalism.

What happened when a Labour MP tried to intervene with the Israeli government on behalf of sick Palestinian children? She faced a torrent of antisemitic abuse, that's what. Shocking story, but it's the wages of anti-normalization.

I thought this was a really thoughtful discussion between Ken White and Elie Mystal on whether things like the North Carolina gun store billboard targeting "the squad" should be protected as free speech (both -- accurately -- observe at the outset that it is protected; the discussion is about whether that doctrine is correct).

The "Word Crimes" special issue of Israel Studies continues to generate controversy: the editors of the journal issued an apology acknowledging that "the special issue and our decision-making process regarding the publication were flawed", but also defending themselves against some of the more histrionic critiques. The editors of the special issue in turn replied to the journal editor's apology, as well as addressing the wider controversy, here.

In California, locally-assessed fees sometimes make new housing construction cost-prohibitive. Locally-assessed fees are assessed, however, because Prop. 13 took a chainsaw to localities ability to raise revenue via property taxes, and so they have to get creative if they're to bring money in.

RIP Toni Morrison.

On Conservative "Support" for Intersectionality

Vox has an interesting profile interview by Jane Coaston with law professor Kimberlé Crenshaw, best known as the originator of the term "intersectionality", on the contemporary uses and misuses of her progeny. One of the most fascinating portions of it is when Coaston starts interviewing conservatives who have, over the past few years, treated intersectionality as their primary intellectual bogeyman. To a man, there response was basically identical: "intersectionality", as conceptualized by Crenshaw, is "relatively unobjectionable" (Ben Shapiro); even "indisputable" (David French).

What they say is that Crenshaw's ideas, themselves, as articulated in the late 1980s and early 90s, are unproblematic. Clearly, Black women experience forms of discrimination that differ in kind from those faced by White women or Black men. Who could argue? What's problematic is how intersectionality (is perceived to have been) extended in contemporary college debates, where it does allegedly stand in for some sort of inversion of hierarchy where White men are at the bottom of the pack.

This is something I've started to hear more and more frequently. In Gabriel Noah Brahm's essay on "Intersectionality" (in the infamous Israel Studies "Word Crimes" symposium), for example, Crenshaw's original 1989 essay is called a "modest, precise, and useful intervention in American jurisprudence." But things go quickly off the rails: "Over the last several years, it has become the watchword, shibboleth, and passkey to belonging on the "woke" left, among the "politically correct" who arrogate to themselves the duty of thought-policing the rest of us." Brahm contends that among intersectionality-skeptics, "A consensus that cuts across the liberal-conservative divide has emerged ... to the effect that the term's expanded uses as a metaphysical totem have outrun its otherwise valid, more limited definition." (the "liberal-conservative" is generous: Brahm lists nine critics he has in mind, of whom at most two -- Cary Nelson and, when he's in the right mood, Hen Mazzig -- can be described as "liberal").

Yet, like most conservative critics of intersectionality, Brahm's description of its contemporary effects is a self-contained system, remarkably insulated from the words or ideas of actual contemporary intersectionalists. Indeed, once he gets past the portion of the paper talking about Crenshaw's original essays, Brahm effectively ceases to cite any work on intersectionality by any self-described intersectional theorist.

Once or twice, an essay will be cited seemingly at random as offering "a representative piece of intersectional feminism", despite not meeting the seemingly minimum threshold of ever saying the words "intersectional" or "intersectionality" (this is especially hilarious given Brahm's insistence on the power of intersectionality the word as a "watchword, shibboleth, and passkey". Some passkey -- it needn't even be used to open the doors!). But for the most part, contemporary intersectionality is understood almost exclusively in terms of what it is stipulated to mean by popular conservative critics in outlets like Commentary and The Daily Caller. As we know, they hate it, even though they concede that the primary texts aren't actually problematic at all. In other words, conservatives are fine with what intersectionalists describe as intersectionality, but loathe what conservatives call intersectionality. So maybe the problem lies in the conservative descriptions?

And that raises the question: what do we make of the conservative contention that they are actually willing to endorse the "original", supposedly unproblematic intersectional claims? The basic form of the question is whether they think -- in harmony with Crenshaw's original argument -- that discrimination against "Black women", specifically, should be recognized as an independent basis for Title VII liability beyond "race" or "sex" discrimination. I've seen little evidence that they do back any legal or statutory reforms to provide clarity here, but perhaps I'm wrong.

More broadly, the question is whether conservatives object to research programs which seek to uncover the specified and particular modes of discrimination faced by, e.g., Black women, or other permutations of several marginalized identities. After all, to quote French, it's just "commonsense ... that different categories of people have different kinds of experience."

Yet in practice, I'm guessing the answer is no. The closest Brahm gets to citing a contemporary articulation of intersectionality by a backer rather than a critic is in the National Women's Studies Association declaration of what "Women's Studies" is:

Women's studies has its roots in the student, civil rights, and women's movements of the 1960s and 70s. In its early years the field's teachers and scholars principally asked, "Where are the women?" Today that question may seem an overly simple one, but at the time few scholars considered gender as a lens of analysis, and women's voices had little representation on campus or in the curriculum. Today the field's interrogation of identity, power, and privilege go far beyond the category "woman." Drawing on the feminist scholarship of U.S. and Third World women of color, women's studies has made the conceptual claims and theoretical practices of intersectionality, which examines how categories of identity (e.g., sexuality, race, class, gender, age, ability, etc.) and structures of inequality are mutually constituted and must continually be understood in relationship to one another, and transnationalism, which focuses on cultures, structures and relationships that are formed as a result of the flows of people and resources across geopolitical borders, foundations of the discipline.

This seems to be an articulation of intersectionality that is no more "problematic" than Crenshaw's original: "categories of identity" and "structures of inequality are mutually constituted  and must continually be understood in relation to one another." A little more jargon-y, perhaps, but not something that strays far from Crenshaw's original formulations. Yet Brahm cites this as his proof-text for the claim that "the majority of radical academic feminists today, in theory and in practice, hold to some version of this sort of 'post-essentialist' understanding of what it means to study gender" and therefore(?) the contemporary feminist project is irredeemably fascist, antisemitic, and racist. (Don't shed too many tears: feminism "achieved its proper goal long ago, when women gained equal rights under the law in the developed world"; now " we can all contribute toward restoring sanity in the academic arena by rejecting" contemporary feminism's "shrill, hectoring discourse").

So what we're really seeing is the classic historical pivot of contemporary conservatism: hating some feature of progressive discourse right up until it becomes too mainstream to effectively challenge, at which point critics say that the term they've just spent years assailing used to be valuable and important but only now has turned astray. The National Review did it with "civil rights", David French did it with "white privilege", and now they're all doing it with "intersectionality". It's bad scholarship and bad history, all wrapped together in a neat little bow.

On the Latest Academic Hoax

A new academic hoax story has broken, and it's bigger than ever before.

Three scholars wrote twenty papers, none of which contained the arguments the authors believed (and all of which contained arguments the authors considered to be ridiculous) and sent them off to journals in the "grievance studies" set. By the time they had to pull the plug on the hoax, seven had been accepted, six were either still under review or under some form of "revise and resubmit", and six were rejected outright.

This project was an expansion on an earlier hoax where a gibberish paper called "The Conceptual Penis" was published in a pay-to-publish journal. The present effort distinguished itself both in the number of papers written and in the decision to submit to what the authors called highly-ranked journals in their disciplines. On that latter note, it's hard to assess -- once you start getting into the sub(-sub-sub)field weeds, what really counts as "highly-ranked"? -- but at least a couple of the journals they scored with are recognizable names (Hypatia, in particular, was a good get).

It's also true, as any observer of peer-reviewed scholarly literature can tell you, that a lot of peer-reviewed scholarly literature even in top journals is dreck. So the fact that the authors were able to get arguments that are (or they viewed as, anyway) dreck published is not itself surprising; though perhaps it gives insight into exactly what and how dreck gets through the process.

Nonetheless, I think there are some important limitations on what one can draw from this "study", including significant ethical ramifications in how the "data" was presented. One might say I'm being overly credulous in even treating this project as one that seeks to earnestly improve the quality of academic publishing standards (hint: if that's your goal, sneeringly referring to your targeted disciplines as "grievance studies" is a bad way to start). But, since we should be self-reflective about the quality of writing and reasoning in academia, I'll take it on its terms.

First, the limits on the conclusion. The authors' methodology was to take arguments that they figured would be appealing to the editorial staff of a given journal but which they, personally, found to be outlandish, and see if they could get them published.

They say that proves a serious malfunction in the peer-review process. I say "haven't they just passed an ideological Turing test?"

An ideological Turing test measures one's ability to mimic the beliefs of the "other side". You "pass" if you successfully convince members of that side that you really are one of them. So let's say I, a liberal, adopt a pseudonym and submit an article to Breitbart. I do my best to make it look, feel, and sound like a Breitbart-style conservative article. Now clearly, I wouldn't believe what I was writing about. The key question is whether they'd recognize the sham: would they say "this sounds like what a liberal thinks a conservative sounds like" (which is, indeed, what it actually is) or would they believe that this is an actual conservative writing? If the latter, then I've passed the test.

The thing is, nothing about passing the Turing test, on its own, demonstrates the falsity of the beliefs or arguments successfully mimicked. Someone on Twitter (I can't remember who) suggested the case of a young-Earth Creationist who submits an article to a biology journal that "mimics" tenets and presumptions of mainstream biological science. If his "hoax" succeeds, would we say "aha! The biological sciences are hopelessly corrupted, to be taken in by this prankster!" No -- we'd say that the author has, albeit disingenuously, written an actual good argument (that he happens not to believe). Likewise, if I successfully spoof Breitbart, I doubt they'd take that as decisive evidence that they've gone off the rails.

The case for why these papers are different, then, can't simply turn on the fact that (a) the authors don't believe the arguments they made and (b) they were nonetheless accepted. There has to be something else in the argument that makes them objectively bad, such that it represents a failure (beyond the fact of the disingenuous motives of the author) for the journal to have accepted it. So what might these be?

This is hard to assess, because the authors don't link to the full papers (the accepted versions have, unsurprisingly, now all been retracted) and because their summaries are by design written to make their claims sound as outlandish as possible. But at least in some cases this isn't facially self-evident.

Take the paper they got into Hypatia. Its thesis is "That academic hoaxes or other forms of satirical or ironic critique of social justice scholarship are unethical, characterized by ignorance and rooted in a desire to preserve privilege." One certainly understands the extra-dose of gleeful "gotcha-ness" the hoaxers enjoyed in getting this paper into Hypatia. But it's hardly the sort of article whose "wrongness" transparently stands out such that reviewers should have obviously known, on face, that it was ridiculous. After all, one could absolutely believe that satirical critiques of this sort of scholarship are unethical and rooted in a desire to preserve privilege (the "characterized by ignorance" is, I concede, at least arguably performatively contradicted by the ability of the authors to sufficiently effectively mimic these arguments such that they got their papers published. But even then, that would just show that one prong of the element was, after the fact, demonstrated to be falsified).

Ditto their Fat Studies paper on fat bodybuilding. Again, the article isn't accessible anymore, but if the basic thesis is that there could be various ways to present "fat" bodies as (in the authors' words) "legitimately-built bodies" worthy of attention and praise, even now I won't say that is a transparently ridiculous assertion. Think of what the ESPN Body Issue has done on this score, for example -- quite a few of its models, at the very least, undermine the notion that "fat" and "athletic" (or even "muscular") are mutually exclusively categories (quoth one of the athletes, a Major League pitcher: "As a baseball player, if I'm pitching 35 times a season, seven innings a pop, 100 pitches a game, I need some fat. I need some extra meat on my body."). And to the extent the "obvious wrongness" is based on the thesis being "positively dangerous to health", I call foul both because it oversimplifies what the research actually shows regarding the linkage between health and what is deemed "fat" in contemporary American society, and because "mainstream" bodybuilding very obviously also doesn't represent the apogee of healthy living either.

Again, I'm not saying that either of these claims are clearly right. But they're not, at least as presented, transparently wrong such that nobody (not just not-the-authors) could find them believable or worth engaging with.

Another potential reason why we could say that reviewers "failed" in not recognizing the wrongness of the article is where there is outright falsification of data. This is something they (apparently) did in the "Portland dog park" paper (they claim to have "tactfully inspected the genitals of slightly fewer than 10,000 dogs whilst interrogating owners as to their sexuality"). Maybe a good reviewer should have recognized that this seemed suspicious. But here I'd say that peer review is actually quite bad at catching this sort of outright fabrication (political science had its own scandal on this score not too long ago). Perhaps unsurprisingly, peer review works best on the presumption that the author is earnestly presenting genuine arguments obtained by honest means. Our peer-review system would be even more dysfunctional than it already is if the first question reviewers asked is "is this paper lying to me?"

And that moves me to the ethical qualms I have in how the hoax authors have presented their findings -- most notably, in how they treat the peer reviewer comments. Each of the papers they submitted -- including those which were rejected -- comes with a selection of peer review comments, all of which are positive. The idea, presumably, is to demonstrate that even their worst papers that didn't get accepted nonetheless were not treated with the sneering dismissal they deserved.

There are two problems with this presentation. First, I think it is actually capturing trends in peer-review to be more constructive, charitable, and supportive towards the papers under consideration -- all good things. One of the reviewers quoted (who had recommended rejecting the article) explained his more positive feedback as an attempt to "buy in" to the paper and provide constructive comments explaining why the article itself didn't work without discouraging the author from the field entirely. It is, I think, a good thing to read articles in their strongest possible light -- to try to think of the best interpretation of the claims the authors are trying to make rather than the most nefarious. This is a practice that hoaxes, in particular, exploit -- they gain their force precisely in the knowledge that their readers will commit the terrible sin of trying to take them seriously.

The second problem with the way the reviewer comments were presented is simultaneously more and less serious. Simply put: if the hoaxer's goal really was to provide a pathway for identifying what is and isn't "working" in these academic disciplines (and I concede that may be far too optimistic), then there is no justification for not including the negative or critical reviewer comments that (presumably) explained why papers were not accepted. Partially, this is simply a matter of misrepresentation -- only giving the positive comments but not the negative ones oversells how receptive readers were to these pieces.

But more importantly, the part of me that wanted to earnestly take this hoax seriously as a genuine effort to constructively critique certain academic disciplines was the most thirsty for learning the content of the negative reviews. What is it that gets a paper rejected in Sociology of Race and Ethnicity (or what have you)? Clearly, it isn't a wild west where anything goes so long as you mimic the right politics (the authors -- somewhat begrudgingly -- admit that their project conclusively falsified that hypothesis). Consequently, figuring out where the borders are, what raises flags and what doesn't, is actually incredibly important to the extent the project is actually meant to have any sort of constructive edge. That these weren't included is powerful evidence about what the ambitions of the hoaxers really were. So it's a more serious critique to the extent I take the hoaxers seriously as trying to have a constructive impact on academic publishing; and a less serious critique to the extent that ascribing such seriousness of purpose is absurd.

In any event. I don't need persuading that academic publishing includes a lot of terrible work, and I don't need persuading that there are certain common markers as to what gets terrible work published. But this hoax overshoots the mark -- mostly because its goal isn't really to build a better scholarly mousetrap but rather to grind certain ideological axes.

My recommendation, therefore, is revise and resubmit.

What's In Peer Review For Me?

UCLA Law Professor Stephen Bainbridge continues to decline peer review requests from law reviews (for friends in different disciplines, law is unique in that nearly all of our scholarly journals are run by law students -- up to and including article selection. A few top journals have started to move towards a "semi-" peer review system where they solicit comments from outside academic reviewers, typically to supplement their own internal deliberations. I give a qualified defense of the law review system here). This is a blast in the past for me, as Bainbridge's initial broadside came against the University of Chicago Law Review shortly after I left that august institution (see my guarded comments here).

Bainbridge has several reasons for not participating, but he devotes an extended amount of time to a discussion of self-interest, featuring an guest appearance from Adam Smith:

Why on earth would I ever want to review an article for them? To be sure, there are things one supposedly does for free for other law schools because they are for the good of the profession. Writing tenure letters springs to mind. Yet, while doing so is for the good of the profession, it can also be personally beneficial. If I write a tenure review letter for your tenure committee, the members of that committee will feel obliged to return the favor when I'm chairing our tenure committee and need outsider reviewers. Professors at other schools read my brilliant tenure review and conclude they should hire me instead of promoting the candidate. I take the job offer to the Dean and she gives me a raise. And so on. But what possible benefit do I get from giving a review to bunch of kids who may or may not end up in law teaching? I'm a rational economic actor. My time is valuable. There are opportunity costs entailed in responding to your request. "It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages." So make it economically rational for me to respond affirmatively.

Actually, this made me think of one reason someone in Bainbridge's position might want to participate in peer review: to influence the window of prestigious legal scholarship in a direction more amenable to his scholarship (and more generally, ideological predilections).

It is a common complaint of conservatives in academia that one barrier to their success is the hammerlock the left-wing majority has over article selection -- supposedly elevating mediocre (but ideologically congenial) leftist scholarship while knocking out good conservative contributions. I don't know if Bainbridge feels this way about the areas he writes in (corporate law), but presumably even shorn of a partisan valence Bainbridge has a vested interest in facilitating a match between scholarship is thinks is actually good and that which deemed "good" via the signal of elite article placement. At the margins, this could help in quite directly (by making his own scholarship more closely resemble that which is considered to be cutting edge), and at the very least it offers a benefit to his ideological school (to the extent he cares about such things). When Bainbridge declines to review articles for top law journals, the reviewer they replace him with may be one with very different views on what makes for a good corporate law piece. The net effect will be to push the contours of well-regarded scholarship in his discipline away from Bainbridge's preferences.

Of course, this sort of analysis is another way of saying that "self-interest" -- defined broadly enough -- can include a whole host of "good for the profession" (or community, or society) values. But that seems to reflect a sociological observation that those most keen on quoting Adam Smith are often those most blind to that sort of "self-interest". If conservatives decline, on grounds of "self-interest", to partake in "selfless" acts of professional courtesy like providing peer reviews, and liberals -- more amenable to doing things for good of the community -- take their place, well, each may reap what they sow, and the corresponding ideological state of "elite" scholarship perhaps shouldn't surprise us.

The Travails of Combining Public Law and Political Theory

I am a political theorist who is interested in law a site of political and democratic dialogue. This is a very natural connection for me -- the whole reason I got interested in law in the first place was that it felt like the space where the rubber hit the road with regard to our public discussions regarding matters of equality, rights, freedom, etc.. But for whatever reason, pretty much everyone who does public law in political science departments is an empiricist. They study things like judicial behavior using data and models.

One upshot of this is that I'm rather isolated from the political science public law community, but that's not a huge problem since I'm still perfectly tied into the public law scholars at law schools. The bigger issue comes when I try to bring law-centered approach to political theory. Then this happens:

Me: Hello! I am hereby submitting a proposal to present at your political theory conference! My topic is on the role of judges in protecting marginalized groups; specifically, the deliberative advantages of the judiciary being "force to listen" to claims that other political actors can dismiss out of hand.

Conference organizer #1: I don't know. That sounds like a pretty niche area. I mean, does anybody really pay much attention to the intersection of minority rights and the law? I think we need something with a wider base of appeal.

Conference organizer #2: I agree. How about a paper presenting an esoteric reading of five pages of a 19th century German philosopher known to approximately two dozen people outside of this room instead?

Conference organizer #1: That sounds great! But is our conference unbalanced what with eight "history of political thought" papers scheduled and just one contemporary piece?

[Everybody laughs uproariously, and scene]

Learning a new discipline is weird.

New Draft Posted: Dismissal

A draft of my latest article, "Dismissal", has been posted on academia.edu and SSRN. An abstract is below: 

One of the earliest steps in civil litigation is the motion to dismiss under Rule 12(b). Dismissal offers the opportunity to preemptively dispose of a given claim that does not present a legally-judiciable case or controversy prior to expending time or energy on matters like discovery or a trial. Everyday talk, of course, is not bound by such procedural rules. Yet in normal conversations we often engage in something very similar to legal dismissal. When faced with discomforting claims our instinct is not to engage in reasoned deliberation over them. Instead, we frequently brush them aside without considering their merits. By delegitimizing the claim as entirely unworthy of substantive public deliberation, we need not reason over it. This carries significant dignitary harms. Who we talk and listen to is an important marker of who we consider to be our moral and political equals. The decision to dismiss—casting the speaker as wholly unworthy of engagement and entirely incapable of transmitting useful knowledge—implicitly (sometimes not so implicitly) rejects that equal status. It represents an “epistemic injustice”—a wrong aimed at one’s status as a knower. Yet despite being a ubiquitous part of everyday conversation, this broader understanding of dismissal has not been independently identified or assessed.  

Dismissal is thus an important phenomenon in all deliberative forums, not just courts. But courts do possess one characteristic that makes them worth assessing independently: they are a site where—some of the time—deliberators have to listen. This places them on very different terrain than politicians, pundits, or everyday citizens, all of whom are relatively free to brush aside discomforting claims at their discretion. Courts may play an important role in protecting unpopular groups not because judges are wiser, less prejudiced, or more insulated from democratic pressures, but simply because courts offer a space where—some of the time—arguments must be heard and reasons must be given. This quality is not the whole game for marginalized groups. But it is not nothing either. It is a significant and valuable epistemic niche that courts can occupy in a broader deliberative system.

Any and all comments are of course welcome.

Stages of Writing a Paper: A Personal Narrative

As an academic, a large part of my job is writing scholarly papers. For me, at least, I've discovered that the process tends to follow a pretty standard set of steps.

(1) "I have an interesting idea. I should turn it into a paper!"

(2) "This paper will be so easy to write! Why, I've practically written the whole thing already if you count what I've said when talking to myself in the shower!"

(3) "So this blank page needs to turn into ... fifty pages of text. That doesn't seem very doable. Maybe I need more shower-talk."

(4) [4 months later] "Okay, let's just start throwing words on a page, if only so that damn blank page one stops staring at me."

(5) "The good news is there are now many words on many pages. The bad news is that most of the words bear little connection to an overarching theme, a unified structure, or even each other."

(6) "An arbitrary deadline is approaching! Just slam out something with complete sentences in a comprehensible order and edit from there!"

(7) "Huh, this is actually looking decent. I knew I liked this idea. A couple more edits and I can really make it sparkle."

(8) "I AM A GOD AMONG SCHOLARS! ALL THE JOURNALS WILL PROSTRATE THEMSELVES BEFORE ME FOR THE RIGHT TO PUBLISH THIS DIVINE MASTERPIECE!"

(9) "Okay, I'm happy with the content. Now it's time for my favorite part: futzing around with individual sentence structure [this is not sarcastic -- I really do love doing this]."

(10) "Alright, microedits are done. Now let's reread it as a cohesive whole."

(11) "Actually, now that I'm reading it again I hate everything about this paper. I also hate myself for taking an interesting idea and ruining it by implanting it in the body of this wretched paper. This sentiment probably has everything to do with my shortcomings as a writer and nothing to do with the fact that I've now read 94 drafts of it over the course of a year and a half."

(12) [Submit]

"Playing with Cards" Now Available (Again)

A few months I posted, and then took down, a draft essay entitled Playing with Cards: Discrimination Claims and the Charge of Bad Faith. It came down at the request of the journal reviewing it, which generally doesn't allow such pre-posting. This policy was unknown to me at the time, since such draft distribution is quite common in law, but I was happy to oblige (and want to thank the journal for its flexibility in not peremptorily rejecting the piece then and there).

In any event, though, the piece has been formally submitted and accepted in Social Theory and Practice, and they have now officially given permission for a pre-publication copy to be placed back online. So for those of you who missed it the first time (or just want to bathe in its glory again), the essay can be found either on SSRN or Academia.edu, as per your preference.

In Defense of Law Reviews

As I get ready to take the plunge into graduate-level political theory, I've had to start thinking a little more about peer review. Peer review is, of course, what most academics consider to be the sin qua non of academic publishing; if it is not peer reviewed, then it might be utter gibberish for all we know. Law professors have a bit of an inferiority complex on this issue, as we have a unique publication process that does not include peer review. And peer review isn't the only difference between the disciplines: law articles are notoriously lengthy, notoriously footnoted, and notoriously go through a frenetic multiple-submission/expedite process to find their eventual home.

Recently I've been getting a little more exposure to the peer review process -- through a refereed conference (and follow-up journal special issue) and by developing contacts with professors in other disciplines who, just like law professors, love to gripe about the shortfalls and pitfalls of their own publication process. I've also had the opportunity to read more peer-reviewed articles -- primarily in political theory, public philosophy, and psychology -- and compare them to what I typically find in a law review. And the more I think about it, the more I think the law review system -- which is viewed with incredulity by essentially every non-law professor I've ever described it to (and by many law folks too) has a lot to say for itself.

Let's list what I take to be the key distinguishing characteristics between legal academic publishing versus the general norms:

• Most law articles are selected by second- and third-year law students on various law journals. They are usually not blinded. My understanding is that sometimes upper-level graduate students can serve as peer-reviewers, but mostly the reviewers are other professors in at least a related field studying a blinded manuscript. 
• Law reviews are much longer than peer reviewed articles. A "short" law review piece (~20,000 words) would be considered quite long in most other disciplines. Law review articles also have a tremendous amount of footnotes.
• Law articles are typically accepted or rejected "as is". Rejections come without any comment or feedback. Peer review offers a continuum of responses (accept, conditional accept, revise and resubmit, reject), and authors receive the reviewer comments.
• It is customary for draft law articles to circulate on sites like SSRN even before they're submitted for publication. This is a shakier proposition in other disciplines, as some peer-reviewed journals will outright refuse to consider a piece that has been "published" on such an online repository.
• Other disciplines submit articles to one journal at a time; moving on to the next one only after a piece is finally rejected at the journal it's currently in front of. Law review articles are submitted to multiple (often upwards of one hundred) journals at once. They move through the selection process via "expediting" -- the initial offer to publish (and deadline for decision) is forwarded to all the higher ranked journals, who then race to make their own decision. If a higher-ranked journal decides to make an offer, the process continues. Repeat until the deadline expires or no higher-ranked journal remains to expedite.
• Related to the above, law articles have a much faster turnaround from submission to acceptance.

So which of these is better? In my view, the goal of an effective publication process should be (a) to produce good articles, both in terms of making novel and effective contributions to their field and in terms of being informative and helpful for other members of the academy, and (b) to place articles roughly according to their merit -- that is, the best articles should be in the top journals, the pretty good articles should be in a pretty good journal, and so on.

On these fronts, I think law reviews perform alright. In terms of overall quality, I'd first observe that I see little difference in the strength of the articles published in the top half or so law reviews versus those published in a typical peer-reviewed context. The fact that there are so many law journals does mean that one starts to see some real iffy contributions towards the bottom of the chain (though to be fair, I've seen some utter dreck in the peer-reviewed world too). But the offerings of reputable law journals are I think every bit as strong as those of equivalent peer reviewed outlets.

I also think the internal distribution of articles is more or less on point. An article published in Harvard or Yale or California or Chicago strikes me as being as likely to make a big interdisciplinary splash as those in the flagship journals of other disciplines. And outside of that, I feel like most articles I read feel roughly rightly-placed vis-a-vis their merits. I know with respect to my own work that I've generally been pretty content with where my pieces have ended up -- sometimes I think an article underplaced a little, sometimes overplaced a little, but never wildly off-kilter with how I perceived its overall merit.

That law reviews actually do a pretty decent job selecting for quality may be surprising, given the lack of peer review. People often comment on how terrible it must be for untrained law students to hold so much sway. But the thing is most people undergoing peer review don't seem to have a ton of confidence in peer reviewers either. They're replete with horror stories about articles badly butchered or barely read at all. Basically, it sounds to me like most folks undergoing peer review are repeatedly rolling the dice until they get a reviewer who is generally sympathetic to their aims and committed to giving their piece due consideration.

Of course, that broadly describes law reviews too -- we all know that many of our submissions are barely skimmed or are rejected for reasons that, if articulated, would make us want to scream. In other words, both peer review and law review submissions require two things: the piece has to be up-to-snuff quality wise for the selected venue, and then you also have to get lucky and have it be read by the right type of reviewer.

And this is where law reviews' multiple submissions scheme is really good. As much as we like to agonize over it, I think it's fair to say that journals fall into broad "buckets" of prestige within which they're relatively interchangeable. There are exceptionally good journals (Yale, Harvard, Chicago, California, etc.), very good journals (Minnesota, BU, BC, GW, Notre Dame, etc.), quite good journals (Arizona, Florida, George Mason, Georgia, etc.), and so on. I imagine the same is true in other disciplines. And most of us, if we're being honest, have a decent idea of where our articles deserve to be in that pantheon. Now, let's say that in each "bucket" there is one journal that has that lucky confluence of a good reviewer who will give your piece its due. If you're submitting sequentially, it might take up to ten tries before you hit that jackpot (and that assumes you haven't lost faith about how good your piece is). But with multiple submissions, it doesn't matter if nine of the ten relevant journals reject your piece without reading it; you only need the one offer. Placing the piece in front of every journal at once means you get to pull the slot lever of every machine. The multiple submission process may be frenetic, and it certainly isn't perfect, but I believe it does a faster and more efficient job of matching articles to their proper academic homes.

Finally, I'll forward a proposition that I think will be quite controversial but I'm willing to defend: the structure of legal publishing produces better articles. The jabs against law review articles are that they're long and excessively footnoted. The former doesn't bother me at all; I just view legal articles as replacements for the books we don't write. The latter is probably a sop to the student editors who are not, of course, experts in the field. But that's a good thing too: one great thing about legal scholarship is that it is generally relatively accessible to novices. If I'm trying to learn about a new area of law, I can pick up pretty much any article in the field and will be greeted with a buffet of relevant sources and explanations that make it easy to quickly pick up the basics of what they're talking about. This is very different from other disciplines, where if you don't come in with a pretty healthy grounding to start you'll be utterly lost within four pages. I think this is attributable to the fact that while other academics write for one audience -- fellow specialists in their subfield -- legal academics write for two. We do write for a subcommunity of specialists, but we also write for the intellectually curious amateur, a/k/a, the law review editor. And I think keeping that second audience in mind produces scholarship that is more lucid, more practical, more cogent, and ultimately more meritorious than that which is found elsewhere.

Now, none of this is to say that peer review lacks for benefits. But some of these (like blind review of manuscripts) could be easily incorporated into the law review process. And others (like reviewer comments) probably cannot be, but are easily replaced by the norm of pre-publication distribution of SSRN drafts and other like ways of soliciting feedback on papers before, during, and after the publication process.

Law professors often lack doctorates, and so we sometimes feel like step-children to the "real" academy. But I think we should buck up. I think the state of legal scholarship is actually quite strong. It produces quality articles, and sorts those articles in rough accord with their merit, and it channels scholarly writing in a direction that I think is more accessible and effective than that which prevails elsewhere in the academy. Our bizarre, idiosyncratic, unique system of publication is actually something we can be quite proud of.

Law Review Tales

It's law review submission season! Every one is angsting (obviously yours truly included), and PrawfsBlawg has a lovely thread in which all of us can vent our fears and frustrations. But I thought it would be more light-hearted to detail some standard experiences I think all law professors have had I've had and thereby extrapolate to all of my colleagues. Such as ....

(1) Submitting an article, then within 15 minutes frantically clicking refresh on your email despite the fact that any news that comes in the first 15 minutes could not possibly be good.

(2) Getting that first rejection three hours after the initial submission ("after careful review ....").

(3) Submitting two articles at around the same time (we'll call them "A" and "B"). A is clearly a better article than B. B gets three offers immediately and ends up placing in a solid journal. A languishes and isn't touched by anyone.

(4) Obsessing over comparisons between US News law school rankings versus Washington & Lee law review rankings (hint: if you're at the point where it's not obvious on face which journal you should pick, it doesn't matter).

(5) Obsessing over comparisons between flagship journals and speciality journals (hint: this comparison is impossible, but it's as impossible for tenure and/or hiring committees as it is for you).

(6) Getting your article rejected after you've already withdrawn it from a given journal ("you can't reject me, I reject you!").

(7) Getting your article accepted after you've already withdrawn it from a given journal (far more tragic than #6).

(8) Submitting an article, having it rejected, resubmitting next cycle with the single change of deleting "originalism" from the title, having it accepted by a top journal (technically this didn't happen to me. It happened by me, and my articles editor team, when I was a law review editor).

(9) Once the piece is accepted, being asked for a citation for "the law of supply and demand." Don't forget a parenthetical!

(10) It all turning out okay in the end.

Sticky Slopes on the California Law Review Website

Here's a link to a PDF of Sticky Slopes on the California Law Review's website, as well as the final abstract:

Legal literature is replete with references to the infamous "slippery slope"-situations in which a shift in policy lubricates the path towards further, perhaps more controversial, reforms or measures. Less discussed is the idea of a "sticky slope." Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it "stickier." Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through society's exhaustion with attempting to address the problem of inequality to seemingly little effect.


I argue that attentiveness to sticky slopes is important for three reasons. First, awareness of the prospect of a sticky slope can be important in long-term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision. Third, sticky slopes reveal how prior victories are themselves sites of social conflict and controversy over meaning, which social movements will want to turn to their preferred ends.

David Schraub, Sticky Slopes, 101 Calif. L. Rev. 1249 (2013).

Be Bold!

When I first posted Sticky Slopes onto SSRN (way back in 2009), Larry Solum gave it his coveted blue stamp of approval. It was the pale blue version, and as every reader of the Legal Theory blog knows, his endorsement comes in levels. Today, Unsuspecting made its appearance on Solum's blog, and it got the bold blue seal of approval. Ladies and gentlemen, I am moving up in the world!

(And of course, my thanks to Larry for the recommendation and kind words! He really is one of a kind in the legal marketplace, and his Legal Theory blog is an indispensable resource for anyone working in ... well, any area of law, really. It's really quite amazing).

Our Divine Constitution

It wasn't the first academic piece I had accepted for publication (that would be "When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, which came out in the Dartmouth Law Journal when I was still at Carleton).

It wasn't the first piece of academic scholarship I published in a true law review (that would be my law review comment, The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement). Nor was it the first piece I published as a professor (The Perils and Promise of the Holder Memo), or even the first full-length piece I had accepted for publication (Sticky Slopes, which I believe is scheduled to come out this October).

But nonetheless it is a milestone, and I am pleased to announce the publication of my first full-length law review article to actually hit the presses: Our Divine Constitution, 44 Loy. U. Chi. L.J. 1201 (2013). An abstract is below (I realized that I never actually wrote an abstract for this piece, so I whipped this up in the last 20 minutes).

The presumption that God is omnibenevolent — inherently just, wise, kind, and merciful — is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoken of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself.

In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we think it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.

As always, I'd love you feedback.

It's been a really hard year this year, and it did not go the way I had hoped (to put it mildly). But I can do this, and this article will be the first of many.

Publication Announcement

I am pleased to announce that my essay, The Perils and Promise of the Holder Memo, has been published in 2012 Cardozo L. Rev. de novo 187. You can read the whole symposium, entitled DOMA after the Holder Memo, at the Cardozo Law Review website.

My thanks to the hard work from the Cardozo editors, and congratulations to them on putting out a great issue!

Publication Announcement

David Schraub, Sticky Slopes, 101 Cal. L. Rev. __ (forthcoming 2013).

Obviously, this is exceptionally exciting, and particularly so given this early stage of my career. And it represents the culmination of the roller-coaster ride that has characterized the start of my academic career.

I had submitted Sticky Slopes to law reviews last fall, and gotten no bites (though it did reach final review at a very good secondary journal). That was very disappointing, and really shook up my confidence. Following that strike-out, I presented the paper here at the University of Illinois, and the feedback I got sparked a pretty substantial reworking of the paper, both in terms of new content and a new organizational structure. Most of that was done towards the end of last calendar year, and after some final tweaking (and some last minute comments), I sent it out against on President's Day.

From there, it was amazing. I got a couple rejections right off the bat (which always happens), but Friday morning I received my first offer from a stellar journal ranked in the top 20. I was over the moon -- kind of zero-to-hero, all at once. It was a far better placement than I ever dreamed of for my very first article, and, as my people put it, dayenu. But I dutifully sent out expedites, not really expecting anything more to come of it. Instead, I received a slew of positive feedback from some of the very best journals in the business. That turned into two offers from top ten journals, and I accepted California this morning.

It is not the beginning of the end, as they say, but it may well be the end of the beginning. I'm publishing in a great journal which seems very excited about my work. I'm thinking very seriously about going on the academic job market, and of course a placement like this -- well, it doesn't exactly put my destiny in my own hands, but it means I've done all that I could. And just to have that sense of ratification after all this time where this has been the dream, and suddenly it feels real, like it could actually happen -- that feeling is irreplaceable.

See y'all in print!

7 Days for 7 Journals

I submitted Sticky Slopes yesterday to about 60 of the nation's finest law journals (I'll push that number up closer to 75 as several late bloomers complete their turnover). I've already achieved the first critical milestone of any submission season -- the first rejection (here within less than 24 hours) -- so that's out of the way (and I must admire the speed at which the journal in question completed their review of my 29,000 word article. No, I won't mention who it was -- wouldn't want to embarrass them).

But I was thinking about the emergent trend we're seeing in some journals to abide by a 7-day expedite window, where they commit to giving authors at least 7 days to make a decision. The effect is to give authors a reasonable amount of time to gain expedited review from more prestigious journals. It's something authors have been clamoring for for some time as expedite windows have been shrinking to absurdly small time-frames (I've heard of 2 hour windows, and even rumors of demands to accept or reject on the phone), but one understands why the journals have been reticent.

1) It's basically giving authors greater opportunity leave them for greener pastures, and there is no clear benefit to the journals for playing nice. One could argue that it helps their reputation, but there is no real evidence that authors actually are putting their money where their mouth is and preferring journals which provide generous expedite windows.

2) Even if journals were inclined to be altruistic, there is a race to the bottom -- journals are afraid of being outcompeted by peers which play hardball.

For these reasons, most of the journals which have agreed to the 7-day window are relatively top-tier reviews that, frankly, don't see a lot of their pieces stolen by reviews higher up the chain.

One proposal I have for fixing this -- or at least partially solving the collective action portion of it, anyway -- is for journals to agree to a 7-day window, but only for expedites to journals which have themselves adopted the 7-day expedite window policy. So if the #50 ranked journal adopts this policy, it would say authors have 7 days to accept an offer from any higher ranked journal which itself provides 7 days to make a decision, so long as it agrees to withdraw from all journals which do not have that policy (or withdraw from those journals after, say, 2 days). This would encourage the journals higher up the ladder to sign on to 7-day policies, as they would be reaping concrete benefits.

Of course, these sorts of withdrawal demands may seem difficult to enforce. But it seems like deals like this happen with some regularity -- schools agree to extensions on offer windows on the condition that the author withdraw their submission from all but a few agreed-upon law reviews.

Anyway, all of this is getting ahead of myself with Sticky Slopes -- dealing with expedite chains is a problem I at the moment only dream of facing. But the policy idea seems sound to me. Thoughts?