by Diane Kemker
On April 15, 2023, the Washington Post published a shocking piece under the title, “The controversial article Matthew Kacsmaryk did not disclose to the Senate.” Taking the facts reported in the article as true, Kacsmaryk, while working as an attorney at the First Liberty Institute, wrote an article that disclosed his extreme right-wing views about trans-affirming medical care and abortion in no uncertain terms. He then sent that article off, as one does, to a law review of which he had been an editor while a student, the Texas Review of Law & Politics (TROLP). Perhaps unsurprisingly, this secondary journal happily snapped it up. But once Kacsmaryk was nominated for a federal judgeship, which would require disclosure of all his published work, he contacted the journal and instructed them to remove his name as the author, and to substitute the names of two junior colleagues at First Liberty - whose names had not appeared on the draft the journal accepted (or even in its footnotes, as contributors).
The point of the Washington Post piece was to highlight Kacsmaryk’s clear attempt to hide his authorship of this piece, so that he would not have to disclose it as part of his Senate confirmation process. You can draw your own conclusions about what this tells us about Kacsmaryk the would-be (and current) jurist.
My point here is different. The story WaPo tells is not just about an ambitious would-be judge. It also discloses serious academic and professional misconduct by almost everyone involved, and it calls for discipline at both the law school and state bar level. The law review editors who participated in this academic fraud and cover-up, the attorneys who passed off the work of another as their own upon the unsuspecting reading public, and the faculty who failed to prevent this - all should come in for serious criticism (at least). It is not too late for the University of Texas Law School to correct this mistake: to de-publish the article in any online format, to issue a correction properly attributing its author, and to consider appropriate discipline for the students involved. (Just this month, the Texas Supreme Court ruled that Texas public universities can revoke degrees after graduation for academic misconduct.) The Texas Bar should commence an investigation. At the very least, the administration of Texas Law should issue a public statement condemning what has happened and committing itself to making sure it never happens again.
Again, taking the facts as reported in the WaPo story as true, at some point in 2017, after the article had been accepted and the production process begun, Kacsmaryk realized that it would be politically problematic for the article to be published under his name. Whatever one might think of this, it is actually quite understandable. Many - maybe most - law professors have begun writing something and later abandoned it, for any of a number of reasons, including the possibility of various kinds of backlash. At this point, Kacsmaryk should simply have contacted the journal and withdrawn the article, with as much or as little explanation as he felt was appropriate. Law review editors are accustomed to this sort of thing - articles are withdrawn because an author changes their mind, wishes to make changes so significant that the article cannot be edited in time, or (frankly) gets a better offer elsewhere. This is, at most, mildly awkward and somewhat inconvenient for the law review student editors. Had Kacsmaryk simply done this, there either would have been no WaPo story at all, or it would simply have been a story of the discovery of an unpublished draft. Though the experts are not unanimous, a good argument can be made that such materials need not be disclosed. This would approach a non-story.
What Kacsmaryk proposed, and what the student editors agreed to, was much, much worse. Put plainly, Kacsmaryk requested, and the editors acceded to his request, that the work be attributed to persons other than its author. As of this writing, the article, with this misattribution, is still posted. This - all by itself - is a serious form of academic misconduct. The editors have conspired with Kacsmaryk to pass off Kacsmaryk’s work as someone else’s. Those fake authors, by the way, also participated in academic fraud and plagiarism, by passing off the work of another as their own. Students have been deprived of degrees and thrown out of school for this. Both Justin Butterfield and Stephanie Taub graduated (I am sorry to say) from the Harvard Law School. Taub’s bio, at First Liberty, claims authorship of this article, by naming the law review (her only other works in print, according to Westlaw, are in the Federalist Society Review); Butterfield, more evasively, simply claims to have written “several scholarly articles on religion and the law.” This is a very generous interpretation of the word “several” - Westlaw lists no solo-authored pieces by Butterfield, and only two co-authored pieces other than this one, one in TROLP co-authored with Hiram Sasser (more on him below) and Reed Smith; the other, also co-authored, appeared in a publication of the Litigation Section of the Texas State Bar (a practitioner publication, not a “scholarly” one). Though I am speculating of course, what seems to have happened here is that they went along with their boss’s request to put their names, instead of his, on an article they did not write - for no reason other than that he asked them to. It should go without saying (but perhaps does not) that they should have said “no.”
As WaPo reports (and according to TROLP’s Masthead), the Editor in Chief of the issue in which this article appeared was Aaron Reitz, now a Deputy Attorney General for Legal Strategy for Texas AG Ken Paxton. A large staff of students were also involved in this issue of the journal (including WaPo’s anonymous informant), though it is not clear who Kacsmaryk corresponded with about this. The editors who accepted the article submitted by Kacsmaryk, and who later saw it attributed to others, were surely at least on notice that something strange had happened, regardless of the creative excuses now offered by First Liberty GC Hiram Sasser (also an adjunct at Texas Law). Sasser can be credited with coming up with the novel and heretofore unknown “placeholder” theory of law review article authorship, according to which, apparently, one person (Kacsymaryk) can submit an article written by someone else (Taub) without crediting the author or disclosing the true author to the law review until after acceptance; or perhaps alternatively, one person can write an article (Kacsymaryk or Taub) and then give the authorship credit to someone else (Taub), who may or may not have been involved earlier, or share it with someone (Butterfield) who never was involved at all. A junior attorney writing a brief that is later signed by a senior attorney is a standard practice in law. It is not an acceptable practice in the academy. In fact, the standard author agreement with a law review includes provisions like the one in the agreement I just signed: “The Author represents, warrants, and covenants that: (a) The Author is the sole author of the Article.” Did Kacsmaryk sign one of these? Did Butterfield or Taub?
One way or another, this is misconduct. Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct provides that “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Rule 5.02 provides that “a lawyer is bound by these rules notwithstanding that the lawyer acted under the supervision of another person” - like your boss, the future federal judge.
Either Kacsymaryk, Taub, and Butterfield deceived Reitz, or all of them together (perhaps including Sasser) have deceived the reading public (and perhaps, the U.S. Senate). If Taub wrote the article but Kacsymaryk submitted it, they deceived the law review. If Kacsymaryk wrote it and then told Butterfield and Taub to attach their names to it (and they agreed), they deceived the law review. If (as also appears likely), at least Reitz and perhaps other law review editors were in on it, then the deceit was committed against the reading public, who have a right to know who wrote what, and the Senate, which has a right to know what a candidate for a federal judgeship has published.
The reach of this misconduct at Texas Law is potentially even wider. TROLP has “Legal Counsel,” Patrick O’Daniel, an alum and also an adjunct at Texas Law. Was he consulted? The faculty advisor to Volume 21 of TROLP, Lino Graglia, is beyond the reach of the Texas Bar - he died January 30, 2022. So the duty of explaining to the current TROLP Board why their predecessors should be disciplined will have to fall to the current faculty advisor, Prof. John Greil. From the looks of things, he’s got his work cut out for him.
Editor's Note: The current faculty advisor listing has been updated to reflect a change that occurred last year but that only appeared on the TROLP website after the initial publication of the foregoing essay.