David Lat reports:
Over the summer, the submissions team for the Harvard Law School Human Rights Journal created a Google Group for themselves. This allowed them to work together on submissions, despite being scattered to the four winds for the summer.
Alas, the Google Group for the Harvard Human Rights Journal (HHRJ) was not adequately secured. As a result, the messages circulated over it were accessible for a time by outsiders — and even crawled by Google in some cases. Some of the emails made their way around legal academic circles and among law professors. Eventually they came into the hands of yours truly.
Lat draws an analogy to the famous aphorism that you don't want to watch sausage being made. true enough, the editorial process disclosed in these messages often isn't pretty. But the least pretty aspect is the blatant bias against conservatives shown by at least a couple of editors:
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.
Lat notes some items in the Journal's defense, but concldues:
... 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.
It certainly makes me wonder how many placements my politics have cost me over the years.
Eugene Volokh comments:
What troubles me about the e-mail is that its focus is not on the ideology of the article, but the ideology of the author. That, I think, is much more troublesome in an academic publication, because it contradicts what should be a basic academic principle — evaluate the qualities of the argument (even if your sense of the qualities is colored by your politics), not the politics of the arguer. (There are some exceptions, for instance if you’re trying to put on a debate about the policies of Administration X and you want people who served both in Administration X and in the ideologically opposite Administration Y, but this doesn’t seem to be what happened here.)
That’s the way reasoned academic debate is supposed to go forward, it seems to me. And editors’ concerns about which Justice or President someone worked for strikes me as quite antithetical to that sort of reasoned debate — even if it’s not the “one factor alone” that drives the selection decision.
Even so, Ann Althouse is unimpressed and unsympathetic.
Josh Blackman speculates as to who the author in question might be and notes that:
... the author’s politics were considered “in addition” to other aspects of the article. That tells us that politics were considered as one of several factors. To clarify, what led me to write the post as I did was the last sentence of the excerpt: “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.” That is, notwithstanding these other positive aspects about the article that may make me want to accept it, the author’s background would be the main factor in rejecting it. In other words, I’d consider taking it buuuuut the author is a conservative. However, we do not have the full record of what happened, and the fairest reading ... was that the article was rejected in part based on the author’s politics.
Fair enough. And bad enough.
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.