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A Look Inside the Law Review Sausage Factory — and Possible Evidence of Bias Against Conservatives

Near the end of a lengthy email containing substantive comments, both positive and negative, about a submitted article, an HHRJ editor appended this coda:

In addition, I am a little concerned based upon [Author D]’s CV. He is incredibly conservative, clerked for [Conservative Justice A], worked in the White House under Bush, questioned [Liberal Justice B] during her confirmation hearings in Congress, and has written critically on [Liberal Justice C] in the wall street journal. Maybe that background isn’t important to all of you and I understand the need to have HHRJ be open-minded buuuuuuut, yeah, doesn’t make me want to take this article.

I’m sure you’re open-minded, buuuuuuut, yeah, you probably shouldn’t have put that in writing.

Another editor responded to that message as follows:

ok i trust [Editor Y]’s judgment — those all sound like major concerns and are enough to reject the article. i’m fine with rejection based on that — we really need to act quickly on all this. other thoughts?

The journal then rejected the article.

We reached out to the HHRJ for comment. The editors in chief of the journal released this statement:

The Harvard Human Rights Journal is committed, first and foremost, to publishing the highest quality scholarship on human rights topics. As both the forthcoming issue and past issues reflect, the Journal strives to be a forum for a range of perspectives within this discipline, and therefore each issue strives to maintain a mix of authors at different stages of their careers and from both within and outside of the academy.

Our submissions team sacrificed many, many hours of their free time during the semester and over the summer to provide the thorough analysis and reviews that you noted. Each article submitted is reviewed by two students who write substantive memos analyzing the arguments, and any piece chosen for publication has been reviewed by at least eight people and extensively discussed. This process generates a lot of debate, wide-ranging critiques and opinions, and any individual excerpt cannot fairly reflect the full context of the discussion. Without commenting on the discussion of any particular article, it would be grossly inaccurate to characterize the publication decision for any article as driven by any one factor alone. In particular, we want to stress very strongly that the editors’ agreement or disagreement with an author does not constitute a bar to publication.

This is a very good statement. In defense of the HHRJ, the comments about the “incredibly conservative” author appeared at the tail end of a lengthy email focused on substantive concerns with the piece. And the response email — referring to “major concerns,” plural — supports the Journal’s position that publication decisions are based on many factors, not by any single consideration.

One could also argue that of course the “Harvard Human Rights Journal” is going to be liberal, just as the Harvard Journal of Law & Public Policy is going to be conservative or libertarian. But I like to think that “Human Rights” are not just liberal concerns.

UPDATE (9/14/2012, 12:00 PM): Or maybe not? Professor Ann Althouse is not impressed. She writes: “If you’re going to expose liberal bias on law student-edited publications, you’ll have to show me something other than a journal that displays lefty pride in its name.”

Even though various defenses of the HHRJ email can be made — another might be, “Hey, we’ve seen far worse emails coming out of HLS!” — it’s not a great thing. It’s not great to see “concern[s]” expressed over an author being “incredibly conservative.” It’s not great to see a law review editor express disapproval of a law professor’s government service and participation in public debate, based simply on the side of the aisle the professor worked on.

What is to be done? It’s not clear. Is this an argument in favor of moving to a peer-reviewed rather than student-edited model for law reviews? Not necessarily. It’s quite possible that the liberal bias among law professors is even worse than it is among law students.

In the end, maybe the best takeaway from this episode is a simple one: significant liberal bias exists within the legal academy (as I have argued before). This bias is reflected not just in anecdotal evidence, but in more systematic studies of the topic. And this bias has harmful effects for the enterprise of legal education. So denizens of the legal academy, both law students and law professors, would do well to keep this in mind — and to push back against it, to the extent that they can. No ifs, ands, or buuuuuuuts about it.

UPDATE (1:45 PM): Professor Eugene Volokh offers commentary here. Meanwhile, Professor Josh Blackman has some ideas about the identity of the controversial conservative professor, aka “Author D.”

UPDATE (9/14/2012, 1:00 PM): Additional discussion over at NewsBusters.

UPDATE (9/15/2012, 3:30 PM): Professor Stephen Bainbridge provides his thoughts on the emails. He writes: “The big question is how pervasive is this bias at Harvard and, of course, the rest of the law school community. My guess? Somewhere between not uncommon and pretty common, leaning towards the latter.”

Earlier: Liberal Bias in Legal Education: Does it Exist? Does it Matter? An ATL Debate
Harvard Law School 3L’s Racist Email Goes National

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