“A Prudential Matter”: New Disclosures Undermine Defenses of Emory Law Journal’s Withdrawal of Publication Offer

A recent publication by Louis Bonham added new information to the controversy over Emory Law Journal withdrawing an offer of publication for San Diego’s Warren Distinguished Professor of Law Larry Alexander due to his refusal to remove criticism of theories of systemic racism. We discussed the controversy last month.  There are a couple of new details on the communications between the editors and Professor Alexander that undermine defenses of the journal by the law school.

Emory Law Journal refused to publish Alexander’s essay that the editors solicited to be part of a Festschrift (or a publication honoring the work) of Emory Professor Michael Perry. (For full disclosure, Perry was my professor at Northwestern University and I edited a prior article by him on the law review. I have also been published by Emory Law Journal).

The editors later demanded that he make extensive deletions (including an entire section) in his essay on systemic racism because they found his “words hurtful and unnecessarily divisive.” He refused and they removed his essay from the issue. In response, two professors withdrew their essays in protest. That included Northwestern University law professor Andrew Koppelman, who published his account at the Chronicle of Higher Education, in article entitled “Scandalous Suppression at a Law Review.”  While he supports theories of systemic racism, Koppelman condemned the actions of the editors.

Emory Law School released a public statement, insisting 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 recent article included the complete memo that Executive Articles Editor Shawn Ren sent Alexander. The editors state “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.” Yet, they go on to say:

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.

Professor Alexander responded with this email:

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

So, the editors left the decision to Professor Alexander and he declined to remove Section III despite acknowledging that it would be “controversial.” The editors then responded with the previously discussed email withdrawing the publication offer. Editor-in-chief Danielle Kerker wrote to Alexander:

I shared the piece with my Executive Board, and they unanimously stated they do not feel comfortable publishing this piece as written. We think there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer. However, we believe this piece would need to be greatly revised to be published in our journal.

We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive. Additionally, there are various instances of insensitive language use throughout the essay (e.g., widespread use of the objectifying term “blacks” and “the blacks” (pages 2, 3, 6, 8, etc.); the discussions on criminality and heredity (pages 11 and 14), the uncited statement that thankfully racism is not an issue today (page 18)).  And, crucially, the discussion on racism is not strongly connected to your commentary on Professor Perry’s work, which is the focus of the Issue and the purpose behind the publication opportunity offered.

Can you please modify the piece, removing Part III and focusing on building Parts I & II to discuss the merits of Professor Perry’s work, by Sunday, December 19? We would welcome a manuscript revised along the lines we have suggested, but, absent those revisions, ELJ will not publish this contribution to the festschrift.

Professor Alexander again refused:

I refuse to eliminate Part III or to modify my language. I cannot believe the censorious tone you are taking towards an invited symposium participant. You don’t have to agree with what I’ve written, but what I’ve written I stand behind.

I previously discussed not just Alexander’s article and concerns over a double standard that is reinforced by other articles published by the journal. The exchanges support the view of Koppelman and others that the editors were withdrawing an offer due to their disagreement with Alexander’s viewpoint.

“Prudence” should not be the measure of whether to allow a publication. Many of the greatest legal publications were imprudent from a perspective of academic backlash or support. Indeed, feminist writers and critical legal studies writers were once widely condemned but legal journals published their work. Now, however, there appears an emerging orthodoxy from the left that is creating even greater barriers to academic exchanges.

The law school’s statement of support for the journal and its student editors is certainly understandable. However, there are real concerns raised by this controversy over the commitment to viewpoint diversity at one of the country’s premier legal publications.

 

 

33 thoughts on ““A Prudential Matter”: New Disclosures Undermine Defenses of Emory Law Journal’s Withdrawal of Publication Offer”

  1. We have the ACLU filing a brief IN SUPPPORT of the state vis a vis parents, we have the ADL trying out new definitions of racism so as to not offend anti-Semites, we have corporations giving huge amounts of money to BLM and then being forced to close stores in areas that service that minority population. Finally we have little boys and girls at law schools DEMANDING (it is always a demand from the little boys and girls) that serious legal minds rewrite articles to appease their latest whims and and Georgetown Law School we have law students DEMANDING a crying room due to things that upset them.

    Why the heads of these schools don’t EVER say no is just beyond my comprehension. Try appeasing a 2 year old and let me know how it goes.

  2. Would anyone seriously consider hiring a graduate of Emory law school considering the obviously stifling, politically correct culture that prevails there? I suspect that the culture of the student body reflected by this incident certainly influences student thinking and the level of courage they can muster.

    I surely would not hire an Emory law grad.

  3. Jewish people are missing out on a huge cash cow. There is ample proof from thousands of years of history that people are systemically anti-semitic. However, the Jews recognize that a society can change for the better and that anti-semitism is not a built in prejudice due to the bad actions to be found in the past. Some people in the black and white community say that the sins of the fathers should never be forgiven because they are built into the marrow of the fathers bones and can never ever be totally extracted. It follows then that the whipping shall never cease. Especially if theirs a buck in it. https://www.dailymail.co.uk/news/article-10466461/California-threatens-hold-BLMs-leaders-personally-liable-missing-financial-records.html. Remember. A famous man once said; “They’re gonna put you all back in chains”

  4. Emory Law Journal makes things so difficult. Why don’t they just burn the Professors paper in the public square and be done with it. This would send a powerful message to other educators who might consider stepping out of line. If you work at Emory Law Journal you better walk right. You better not stumble boy and you better not fight, cause the journal it will get you and their boys will hold you down. Then before you know it you’ll no longer be around. Don’t worry soon the ACLU will come to your defense. Just kidding.

  5. (OT)

    Alexander S. Vindman: “I filed suit against ⁦@DonaldJTrumpJr⁩, ⁦@RudyGiuliani, ⁦@DanScavino, & others for witness intimidation & retaliation. Donald Trump, ⁦@FoxNews⁩, & ⁦@IngrahamAngle are also named in the law suit.”

    More here: https://www.usatoday.com/story/news/2022/02/02/alexander-vindman-sues-donald-trump-ukraine-call/9314086002/

    Will Turley address this suit that includes his part-time employer, Fox News?

  6. On a seemingly unrelated note (though one that’s actually very much on-point since this crazy censorship in our Law Schools would not have flourished so brazenly had the Demonrats not destroyed Independence & Ethics in our Mainstream Media) – – –

    I hope Prof Turley (& all of his followers) enjoy a very big, expensive glass or bottle tonight, reveling in something as delicious as today’s news that the Universe is FINALLY starting to shine a light on the dangerous depths of the corruption & complicity at the cesspool that is CNN (culminating today with the long-overdue destruction of the most rotten part of the corrupt CNN core, Jeff Zucker!).

    #2022-CANTWAITFORTHOSEMIDTERMS – – –

    * Cesspool CNN In the Spotlight
    * Spotify/Starbucks/ABC/etc Refusing to Cave & Holding Strong
    * Traitorous Vindman Opening up the Pandoras Box of Trial Discovery a la Faux Impeachment #1 + Faux Whistleblower Eric C.
    * DEM Elitism/Discrimination About to Be On Display via the Anti-Legacy-Admissions Bill Progressives Just Pushed
    * Vance out in SDNY & NYAG Tweeting Away Her Independence bc She Cant Find Anything to Get a Judge to Sign
    * Major Studies Finally Being Publicized Proving Ivermectin et al Work/But Lockdowns Dont/Etc
    * The Massive Harm DEM Policies Have Caused to Economy/COPs/Border//Children/Schools/Military/National
    Safety/Families/Etc Finally Being Revealed to the Masses
    * Trump Realizing & Calling Out Lady Lindsay for the Fair-Weathered Friend He Really Is
    * SCOTUS about to finally have to rule just how wrong the Left & Biden have Been On Everything from Policing to Guns to
    Censorship & Even Their Blatant Discrimination of/Hate for/Danger toMinorities!
    beenUniverse may FINALLY be righting itself
    * GOP State Legislatures Fixing Illegal DEM Election Policies Slipped Through bc of COVID + Highlighting/Undoing the
    Fraudulent & Illegal 2020 Election Certifications, Requiring Forensic Audits, Etc.
    * Almost All of Biden’s Key #s Are in the Toilet & the Flushing Continues Daily!

    ……Ahhhh…..the Universe is FINALLY starting to right itself! 👍🏽🙏🏽🇺🇸🎇 🎉 🍾 🎁 🤩 😆 😊 👍🏾

  7. Emory University is private property, the dominion over which is “claimed and exercised” only by its owners.

    The right to private property by owners is superior, while rights and freedoms of other individuals are inferior.
    _____________________________________________________________________________________

    “[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

    – James Madison

  8. This has nothing to do with subject but a comment. I have been getting comments from something called Red State. Usual stuff from the RINO types. But I wonder who is really behind it as the socialists etc are adept at reframing and redefining calling Progressive Liberals by the name Democrat. referring to all who disagree with as conservatives another.

    Red is the color of socialism and communism. How did the GOP etc get stuck with that one when it belongs to the socialists? Something the biased press did?

    I really don’t believe them. As a Constitutional Centrist perhaps it works for the way far out extremists but not for decent citizens. Our colors are red, white, and blue and this Marxist stuff be damned.

    A second clue is it’s one way…. no comments allowed. Sounds like something the group with the girly russian name would pull.

  9. The only “systemic racism” in the US today is so-called affirmative action, which gives preferences to less qualified members of certain groups over more qualified members of other groups, to promote “equity”, defined essentially as proportional group representation.

    What progressives mean by “systemic racism” today is the operation of race neutral standards of competence that have outcomes they don’t like because some groups do better than others as a statistical matter.

    This is wrong on many grounds:

    1. The definition of the groups is arbitrary, in that it ignores factors other than race. As Thomas Sowell, June O’Neil and Wilfred Reilly have argued, when you adjust for obviously relevant factors such as age, region of the country, intelligence as measured by tests and being raised by two parents, the disparities alleged to have arisen because of race largely disappear. The focus on disparities by race in effect allows the black middle and upper classes to appropriate for themselves the statistical disparities of the black underclass to seize preferences against other racial and ethnic groups through so-called affirmative action.

    2. The several factors today that more likely account for disparities between people are not a legacy of slavery or Jim Crow. Regarding educational achievement, there is substantially no disparity any longer between per capita expenditures in schools or class sizes based on the racial composition of schools, and this has been so for decades. The high rate of black children who are not raised by two parents in the home emerged after the abolition of slavery and the dismantling of Jim Crow, as shown by Herbert Gutmann in The Black Family in Slavery and Freedom. John McWhorter and others have argued that it arose after the 1960s and was promoted by expanded welfare entitlements and changes in the culture around attitudes to work and personal responsibility. The very high rate of violent crime, which blights the lives of many in poor black neighbourhoods in our cities, also first emerged in the 1960s.

    3. What Glenn Loury calls the “bias” narrative that progressives embrace comes at the expense of the “development” narrative, which would focus attention on enhancing capabilities to enable more people to take advantage of opportunities available to them.

    So it is important that critiques of the use of the term “systemic racism” by progressives be aired even if these critiques are hurtful or divisive. The “anti-racist” ideology it supports is itself divisive, does not help solve any of the real problems it is meant to deal with and will ultimately undermine the overall effectiveness of every institution in our country.

    1. I think an expanded view of AA is necessary. When you state: “…affirmative action, which gives preferences to less qualified members of certain groups over more qualified members of other groups…” I tend to agree, but you are also missing that there are aspects where in some cases more economically qualified students are also getting greater benefits than less qualified students. For instance, when the kids of a black doctor and lawyer get significant financial aid packages that could have gone to an Asian teacher’s kid.

      So not only can it be the case where an upper middle class black kid with lower grades and lower board scores and poorer extracurriculars get a coveted spot over a “better” non-black kid, the poorer “better” non-black kid may have to pay more money to go to the lesser school.

      The other systemic racism is in MBE discrimination in contracting opportunities with government entities, this also applies to misandry WBE policy.

    2. Daniel: McWhorter is so correct, in so many ways. Traveling through parts of our great country, I am often reminded of the “poor white” populations that struggle to gain fair housing, employment, dignity… and are subjected to collective terms such as “redneck, yahoo, hillbilly, trailer park queen,’ etc. But they remain a shadow population, not wont to riots and demands. The media seldom mention(s) them, because there is no political gain. (I’ll leave it at that, since this is off-topic.)

    3. “This is wrong on many grounds:”

      4. AA is unjust and it’s racist. Justice demands the evaluation of an individual on the basis of traits over which he has control. (Race is not one of those traits.) It’s racist to use race to determine what an individual deserves.

      1. Sam, I agree with the sentiment but am wary about its underpinnings. There is much in the world that is beyond our control, much that is undeserved, and much that is a direct or indirect consequence of what Sowell calls cosmic injustice. In making decisions about admissions, hiring, promotions, contracting, investing, etc., the criteria used should be those related to performance. I agree that assessing individual candidates is the only way to go about this, but I would stay away from concepts such as “justice” or “deserts”. A candidate judged likely to be more effective than another in performing the task in question should win out even if less “deserving” than the other judged by some unrelated criteria. The pursuit of cosmic justice, even if we knew how to do it, which we don’t, is not conducive to institutional achievement.

        .

        1. “I would stay away from concepts such as “justice” or “deserts” . . .”

          Why? That (plus individualism vs. collectivism) is the *moral* issue, with respect to AA.

          That “stay away” is one reason conservatives have been ineffective in eradicating AA. They keep focusing on the bad practical consequences of AA (mismatch, et al.). And that’s fine. In refuting an irrational ideology, one should argue that it’s both immoral and impractical. But one needs to make the *moral* argument, which is an issue of “justice.” Ultimately, it is morality that drives people’s choices and actions. By surrendering justice, you lose the debate.

  10. How do we decide which viewpoint is to be rejected out of hand?

    Am I guilty of an Ethical Sin if I immediately ignore any post from or based upon anonymity?

    Am I wrong to immediately ignore posts by those I consider to be mere Trolls or absolute Nimrods?

    Now move me up a notch….and make me an Editor or Moderator….or even a Face Book Fact Checker…..and I reject any opinion or comment I do not embrace…..am I still guilty of an Ethical Sin?

    I do not agree with many of the Taxes that are levied upon me….but I still pay them….but do so only because the Law and the Tax Man have ways of making me pay.

    Is that what we need in this Country….Laws that deal with censorship in any form by anyone or any entity private or government?

    What happened to the concept of Free Speech this Nation adopted at the creation of the Nation…..it sure seems we have lost our way since then.

  11. I’ll again post a quote from Eric Hoffer illustrating how the dopes of Woke should be shunned and made fun off for their outright stupidity, or maybe it’s fear of the truth.

    “If a society is to preserve stability and a degree of continuity, it must learn how to keep its adolescents from imposing their tastes, values, and fantasies on everyday life.

    And one more.

    “An empty head is not really empty; it is stuffed with rubbish. Hence the difficulty of forcing anything into an empty head.”

    1. Way too many law schools are worsening way too many students into narrow-minded crusaders for lefty/socialist/progressive/communist causes – rather than into people qualified to practice LAW. They will be the first to expect their student loans to be paid by taxpayers – when they learn that their law school educations and their personal preferences result in employment that doesn’t pay them what they believe they are worth.

  12. Perhaps Emory needs a reminder of the Constitutional Law lesson on the First Amendment provides for and protects the marketplace of free ideals. If law school journal student editors are not interested in fostering those ideals other than their own, I certainly hope their conduct is taken into consideration in their moral turpitude investigation before licensing them to practice law.

  13. I’m so glad that the law students are looking out for the welfare of others. I wish them luck in removing all things hurtful in the world. When do they start?

    1. So predictably boring and dull.

      And, of course, by “others” you mean a small percentage of others.

    2. Reality is what is hurtful and they are making an enormous effort to remove that, so, you got that going for you.

  14. “Students” — there’s that word again, and with it all the associated “woke” terms like “they do not feel comfortable”; “finding your words hurtful and unnecessarily divisive”; “insensitive language”; and the best one: “the uncited statement that thankfully racism is not an issue today.” Never have I seen any race hustler, or those screaming about “voter suppression,” cite a reliable study that wasn’t based on a subjective notion of “systemic racism.” In fact, subjectivity is the single defining term of CRT and “woke” nonsense. If they “feel bad,” it’s due to your “racism.”

    1. giocon1: excellent comment, especially the “subjectivity is the single defining term” part. I am thinking, this morning, of former Dolphins Coach Brian Flores’ lawsuit against NFL for “systemic racism.” (But my beef is always the agenda-driven media that stoke this.)

    2. “In fact, subjectivity is the single defining term of CRT and “woke” nonsense.”

      Excellent point!

      Their entire agenda is based on the irrational notion that their emotions create reality and can vanquish reality. There are no facts independent of their (vicious) wishes. Their desires are the given and the not-to-be-challenged.

  15. The ‘ism’s will stop when no one tolerates them regardless especially the Government who promotes them on most if not all of their publications demanding disparate versions of ethnicity, age, gender et. al.

    On those forms I write in the margin ‘This is an unacceptable racist, etc etc etc question or comment.You should be ashamed of yourself.Start acting like a Citizen instead of a socialist. I never give answers to racist, sexist etc. questions in any of their forms.

    That’s how Citizens live up to Rights and Responsibilities.

    You won’t find this attitude in the socialist fascist left there is no hope for them regardless of which ‘ism.

  16. Systemic. In one way yes. Fact of the matter is as long as racism is tolerated and practiced at the lowest and highest levels in the country in ANY way, shape, form or speech it will remain with us like the Covid turned number 20 and then to Omicron now nassing up version 80.

  17. “Systemic racism” are two odd duck words.

    BLM stands for Black Lives Matter. But so do black wives. So do black labradors.

    It’s not in a system to be racist. It’s in a mindset. A system is not a person.

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