Many Authors Approve Of Harvard Law Review's Use Of Race And Ideology In Article Selection • TaxProf Blog

Following up on my previous post, Harvard Law Review Rejects 85% Of Submissions Using Race-Conscious Rubric: Harvard Crimson, A Mass Leak Showed the Harvard Law Review Assessed Articles for DEI Values. Some Authors Say That’s Not a Problem.:

After a massive leak, the Harvard Law Review was accused of using a racially conscious and ideologically discriminatory rubric to evaluate article submissions. But many of the authors whose works were evaluated in the leaked documents didn’t see it that way.

The Harvard Law Review — a student-edited publication that is America’s most prominent law journal — has found itself engulfed in a public battle over accusations that it unfairly boosted Black and Latino authors.

Since April, the Washington Free Beacon, a right-wing news site, has published a steady drumbeat of leaked documents from the Law Review’s article submission process, which the Free Beacon alleged documented discrimination against white and Asian authors. In the months since, three federal agencies — the Department of Health and Human Services, the Education Department, and the Justice Department — opened investigations into the allegations.

And then, on June 19, the Free Beacon dropped a bombshell: nearly 2,300 pages showing how the Law Review’s editors evaluated article submissions.

The Free Beacon claimed they had clear evidence that the Law Review’s editors used a racially conscious and ideologically discriminatory rubric. But many authors whose articles were discussed in the leak said they saw nothing to object to in the Law Review’s process — even as others agreed that the process considered race in pernicious ways.

The leaked documents show individual editors’ assessments of 416 articles submitted for the most recent volume of the Law Review, all anonymized at this stage of the review process. The Crimson was able to identify and contact 360 of the authors.

Of the 20 authors who gave statements in response, 12 said there were no major issues in the criteria used by the Harvard Law Review and that the editors’ rubric did not consider race inappropriately. Five objected to the rubric — though some thought it would be concerning for the government to intervene. The remainder did not address the Law Review’s use of the rubric. …

“How much they liked our article is less important to the world than their thumb on the scale for authors and sources of preferred races or papers that fit an ideological orthodoxy,” wrote Harvard Law School professor Stephen E. Sachs, who co-authored a rejected paper arguing that parents should be able to cast proxy votes on their children’s behalf.

But Northwestern University law professor James Pfander, whose paper on tort law was accepted, wrote that the “impact” section “hardly shows that such considerations conclusively determined the article’s fate in the selection process.”

“Putting a label on the process of considering the larger social impact of a publication decision (call it novelty, inclusion, equity, or whatnot) does not in my opinion necessarily change the nature of the process or cast doubt on its legitimacy,” Pfander wrote. …

George Mason University law professor Thomas P. Gallanis wrote that “one serious problem” in the rubric is the apparent consideration of the races of the scholars cited in the article, saying it is “irrelevant to academic quality.”

“The race of the author is irrelevant to the article’s academic contribution,” Gallanis wrote. “So too are the races of the scholars cited, except if an author fails to cite the relevant scholarly literature.”

[Genevieve] Lakier, from the University of Chicago, wrote that she thought that favoring citation diversity would instead force authors to think more critically about the literature they draw on.

“Scholars tend to cite the same few papers again and again. Sometimes that is because those are the best things out there. But sometimes it is just familiarity and path dependency,” she wrote. “Pushing writers to be more thoughtful about who and what they cite is not a bad thing.” …

Even some critics of the Law Review’s processes said that federal scrutiny and punitive demands were a far greater danger than poor criteria for submissions.

Emory University law professor Alexander “Sasha” Volokh, a former Law Review executive editor, wrote that the publication “should be able to choose its articles on whatever basis it likes, even if that basis is horrible.”

“Any government effort to prevent this is violating HLR’s rights, which is about a million times worse than whatever HLR is doing,” Volokh wrote. “Therefore, I support HLR all the way in its current legal fight.”

Adam Feldman, Behind the Scenes at Harvard Law Review:

There's a lot to unpack with over 2,200 pages of internal memos from the decision-making process now released. Here are details on what they show.

Prior TaxProf Blog coverage: