Was the Columbia Law Review Shutdown Really About Editing?

Last week, I made some observations about the turmoil within the Columbia Law Review (CLR) and between the student-editor leadership and its outside Board of Directors, focusing mostly on what I described as the oddity of the board's having completely shut down the CLR website as an interim measure--odd because it did not seem responsive to the concerns expressed by the board. A little less than a day after I published my observations, and after the website had been down for the better part of a business week, the board restored it, including the article by Rabea Eghbariah (Toward Nakba as a Legal Concept) at the center of the controversy.

By my estimation, the student-editor leadership won the showdown. The website was restored but no disclaimer appears anywhere in or accompanying the article. Instead, the bottom of the website includes a link to a statement by the board. I don't know whether that was the result of a negotiated compromise or imposed by the board in some way without the consent of the student-editor leadership, but either way, it reflects a sensible backing down by the board.

That said, the board's statement itself is puzzling. It points to what it describes as defects and irregularities in the editing of the article but not in the process of its selection. To my mind, that is mysterious because of the limits of what could be accomplished via wider consultation about editing.

It's possible that wider circulation within CLR would have enabled someone who was excluded from the editorial process to catch a typo or a citation format error that the assigned editors missed (although law review editors are very good at catching typos and Bluebooking). That editor would have called the typo or Bluebook error to the attention of the articles editor who was Eghbariah's main point of contact, at which point everyone would have been happy to correct the technical error.

But presumably none of the excluded students would have complained to the board, and the board wouldn't have taken the extraordinary step of shutting down the website, because of a process irregularity that slightly increased the likelihood of an article containing a typo or missing a pincite. As I noted in my essay last week, the board itself, in its letter to the student-editors explaining why it was shutting down the website, said this: "Whatever your views of this piece, it will clearly be controversial and potentially have an impact on all associated with the Review." In other words, insofar as the board's action focused on editing, the board wanted the excluded editors to have a chance to urge changes regarding the controversial aspects of Eghbariah's article.

There are plenty of those. For example, Eghbariah describes Zionism as "a European political ideology that pursued the creation of a Jewish state in Palestine." Meanwhile, the article calls Zionism a form of "colonialism." Suppose a student who was excluded from the editorial process read the nearly-finished version of the article and sent the following comment to the lead articles editor hoping it would be conveyed to Eghbariah: 

The characterization of Zionism as "colonial" and a "European" ideology are at best tendentious. It's true that Theodor Herzl and other early Zionists lived in Europe and were influenced by 19th and early 20th century European nationalist movements, but: (a) they did not conceive their project as one of colonization so much as one of repatriation; (b) there were some Jews in Palestine continuously since ancient times; and (c) roughly half of the contemporary Jewish population in Israel trace their ancestry primarily to the Middle East, Africa, and central Asia but are nonetheless Zionist as the article otherwise uses the term. I suggest deleting the word "European" and adding an acknowledgment that the characterization of Zionism as a form of colonialism is disputed.

Would Eghbariah have been amenable to such suggestions? It seems highly unlikely, given the overall thrust of the article, which conceives of Zionism as a European settler project. Moreover, even if Eghbariah would have accepted the hypothetical suggested changes I've just described, he surely would not have accepted the numerous additional changes that would have been necessary to make the article even a bit less "controversial."

But what if the excluded faction of CLR editors turned out to be the majority? Could they have outvoted the primary assigned editors and insisted on any number of changes to the article that Eghbariah would then have had no choice but to accept? To answer that question, we need to know both the internal CLR procedures for resolving disputes between the lead editors and other editors as well as the nature of the publication agreement between CLR and Eghbariah.

I don't know what the exact internal procedures are, but I'm dubious that even a majority of CLR editors who were not directly involved in the editing of an article can insist on conveying edits to an author. However, let's assume that they can. Even so, I'm fairly confident that all the CLR could do at that point would be to suggest edits to Eghbariah or rescind its publication offer.

Why am I so confident? Because I have authored or co-authored nine works of scholarship in the Columbia Law Review (six in the print edition and three in the online-only edition). For each (as with other law journals), I've received a contract to sign setting out various terms. Here's what a typical one of those contracts said with respect to editing:

The Author authorizes the staff of the Review to edit and revise the Article prior to publication in the Review. The Article shall not be published by the Review unless it is acceptable in its final form to both the Author and the Review.

I have every reason to assume that Eghbariah's contract said something similar--i.e., that the article will be published only if the author and CLR agree on its final form.

Now suppose that the board's original plan of a four-day delay had been carried out without de facto publication of the article. The excluded faction would have been granted access to the article and presumably they would have identified numerous objectionable features. Suppose further that a majority of the full editorial staff then exercised a power to override the editors who had done the primary work editing the article by asking Eghbariah for very substantial edits--the kind that would make the article much less controversial. Such edits would have utterly transformed the article in a way that almost certainly would have been unacceptable to Eghbariah. At that point, either the newly ascendant faction of previously excluded editors would have had to back down or Eghbariah would have exercised his right under the contract not to allow publication of an article that was edited in a way that fundamentally transformed it.

Put differently and starkly, the opportunity for the excluded editors to suggest edits was only ever valuable as an opportunity to constructively rescind the offer of publication.

To be clear, I'm not saying that I have any evidence that the board subjectively intended the initially agreed-to four-day publication delay or the website shutdown simply as a means of giving the excluded students an opportunity to engineer a de facto rescission of the offer of publication. I am saying that, in light of how the editorial process actually works, that appears to be the only achievable aim that would have been served by the opportunity for broadened editorial input that the board's statement says was the purpose of its interventions.


Postscript: Since my initial thread on X and last week's essay here on the blog, I have received a number of requests via email and social media for my views about the quality and substance of Eghbariah's article. I confess that prior to writing today's essay, I hadn't read the entire article because I was focused on the process issues the board said were driving its interventions. I have now read the article and have reached the following tentative conclusions:

(1) The article is very polemical in a style that is quite different from my own scholarly voice and unusual but not unprecedented among law review publications.

(2) As a consequence of the article's failure to discuss much in the way of opposing evidence or viewpoints, it is unlikely to be persuasive to anyone who comes to it persuaded by that opposing evidence or holding one of those opposing viewpoints.

(3) Even on its own terms, the article's argument is unpersuasive that international law needs a new term of Nakba, which seems more like a description of the Palestinian experience from a Palestinian perspective than a general category for use in international law. If Nakba were to become, as the article's title indicates, "a legal concept," it would presumably refer to more than one singular event, even if that were an ongoing event. It is in the nature of legal concepts to have general characteristics. Yet Eghbariah devotes scant attention to explaining what generalizable content the "legal concept" of Nakba has. In places he suggests that it is a general term for all settler-colonialism but then he seems to imply (at page 970) that he does not know whether the term has any applications beyond the Palestinian experience. There he writes:

Should the legal articulation of Nakba entail a future transformation into, simply, “nakba” as a common noun? Should Nakba then transcend its settler-colonial origins? What cases might then qualify for a Nakba analogy?

Wait, what? If Nakba is not yet nakba, a common noun, does that meant that it isn't applicable even to other versions of settler-colonialism? Or is capital-N Nakba itself meant to be generalizable, as Eghbariah sometimes implies by referring (as he does at page 979) to "a Nakba." Eghbariah usefully points to various instances of historic injustices as possible extensions (at pages 970-71) but then says that he's only asking whether Nakba (or nakba) accurately describes these events. He writes:

This Article leaves these questions open. The value of recognizing the Nakba does not necessarily lie in its generalizability, although generalizability is a natural byproduct of codification. 

That strikes me as very confused. Generalizability is a prerequisite for codification, not a product of codification. Whatever else Eghbariah's article might achieve, it fails in what purports to be its central aim of making the case for a "legal concept" of Nakba. Indeed, the article's Conclusion effectively concedes as much, discussing Nakba exclusively as a term for the Palestinian experience, with no effort at all to explain how it is a generalizable legal concept.

(4) The foregoing reactions lead me to think that if I were a student-editor of the CLR, I would not have supported an initial offer of publication. However, the criteria for rescinding an offer of publication are very different from those for making the initial offer. The criteria for the outside board to intervene are different still. In any event, if (and I do mean if) the real reason the board wanted to give the excluded editors an opportunity to review the article was that the board thought the article was so extraordinarily bad that the publication offer should be de facto rescinded even at the eleventh hour, the board ought to have said so and explained why.