The Emory Law Journal Finds My Distinguished Colleague’s Words “Hurtful and Unnecessarily Divisive.”

A conservative article might make it more difficult for one to be published in a traditional legal journal. It can also be more difficult to publish articles on race and sex if you are writing for a traditional law review. (I do not even bother to try, I just go for specialty law journals that were created in part to ensure that conservative scholars’ articles get published.

I was therefore pleased to learn that my colleague Larry Alexander—one of the University of San Diego’s Warren Distinguished Professors of Law—had been Invited Write for the Emory Law JournalLarry chose to write about a race theme.

It was not to become. The author offered to publish Larry Perry’s essay, which was for a Festschrift to Professor Michael Perry. After trying to remove the meat from his argument, the author declined. ELJAcceptance has been withheld. Larry received an ultimatum from Danielle Kerker (Editor-in-Chief): You must either “greatly revise the essay” or you will be fired. ELJ You will need to withdraw[]”Our publication offer” Larry knew how damaging it was to academic values to give in to such pressure. He refused to change the article.  He did a great job.

Kerker said that ELJ The Executive Board unanimously stated that they did not feel comfortable publishing this article as is.   “We are unhappy with your discussion on systemic racism. We find your words offensive and divisive. Additionally, she noted that “there were several instances of inappropriate language use throughout this essay (e.g. There is a widespread usage of the objectifying words ‘blacks’ and ‘theblacks’. . .) . . . .”

Larry will need to rewrite his essay if the “black” term is used to describe African Americans. Some consider “the blacks” a disrespectful way to collectively refer to members of a particular race. Larry was not using it that way, even though it might have been rude. It was used to describe the specific blacks of one of Larry’s hypotheticals. This was the intention of “the”.

They probably wish that they could debate Larry’s discussions of the disparate effect in constitutional analysis. Larry wasn’t being mainstream. He was simply agreeing with Supreme Court. Washington v. Davis (1976), that a statute not designed to disadvantage one race or ethnicity doesn’t have to be declared unconstitutional just because it has an adverse effect on another group.

(Why not? (Why not? All laws have an impact. Some racial and ethnic groups group. You need to reconsider if your conception of the Constitution makes all laws invalid. There are many different racial/ethnic groups. They differ in many ways—culture, heredity, religion, geography, history and just dumb luck. You don’t have to assume that all disparate impacts are caused by discrimination.

The real beef I believe is the ELJThe Executive Board’s problem with Larry’s essay was that he explicitly said that racism wasn’t today’s issue. Instead, he referred to the “cultural factors that have led to family disintegration,” which in turn leads poor education, crime and poverty. This is only mainstream conservatism. Having children with one parent is not ideal. This is not something that can be avoided, but it’s often the result of negligence. The out-of-wedlock African American birth rate is a particularly tragic figure at 69.4%.

The good news is that Larry’s essay has not been withdrawn. The essays of two law professors, one conservative and the other liberal, have been withdrawn from this website. ELJIn protest at its treatment Larry. Left-leaning law professors have also stated that they would only publish if there was a protest against the publication of Larry. However, they do not always agree with Larry’s essay. He can stand up for himself, but it doesn’t mean that you have to agree.

It ELJThe author declined to comment.