Article: Do Law Review Editors Have Academic Freedom?

Tom Ginsburg and Aziz Z. Huq argue that they do.

he temporary shutdown of the website of the prestigious Columbia Law Review by a faculty-led Board of Directors earlier this month shines a spotlight on how legal scholarship is produced, and who should control it. The facts are not fully clear, with internal allegations of improprieties in the editing process for Rabea Eghbariah’s article on Israel/Palestine; an earlier piece by Eghbariah had been discarded after acceptance by the Harvard Law Review’s website. The Columbia Law Review website has since been restored and the article is now available, arguably with a much wider readership. But while the takedown was always doomed as censorship, it nevertheless directly attacked norms of academic freedom in a way that is insidiously corrosive and profoundly damaging for the long term.

At the core of academic freedom is the exercise of what the American Association of University Professors (AAUP) calls “professionally competent forms of inquiry.” It is not, obviously, a violation when a journal turns down an article because of errors in its method, or when someone is denied tenure because their publications do not meet disciplinary standards. The peer review process, however flawed, is now a central channel for the exercise of those judgments.

But the Columbia Law Review, or CLR, like almost all other prestigious law journals, is not peer-reviewed. Readers from other disciplines may be surprised to learn that law reviews’ editorial boards comprise second- and third-year law students. Twice a year, a small team of such editors select articles from a flood of submissions on behalf of their journal. Some employ a simulacra of peer review—giving external faculty 24 or 48 hours to “read” pieces that are often 30,000 words long. A negative peer review doesn’t always lead to a rejection—albeit for mysterious reasons. In addition to this process of open submission, some pieces are commissioned directly by student editors. A capstone publication for many scholars, for example, may be the Harvard Law Review’s annual “Foreword,” or “Comment” on a Supreme Court case.

Read the full article