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Scholarly Journals and Authors' Past Offensive Speech (1):

1. The Yale Law Journal is embroiled in a controversy. The Journal accepted a paper for a symposium; but now it turns out that four years ago, a coauthor of the paper made what certainly seems like a racist statement. (For whatever it's worth, the paper has nothing to do with race.)

Should the Journal withdraw the offer? Some argue yes; the Journal has said no. It seems to me the Journal is absolutely right. The same should apply when journals consider papers written by people who have expressed Communist sympathies, or who praise terrorists, or who oppose or defend homosexuality, or who offend our sensibilities in countless other ways.

Academic journals are special institutions, with a special mission: the publication of ideas that advance knowledge in their field. To operate best, it seems to me, they should be committed single-mindedly to that goal. They may consider the quality of the paper (and quality in a broad sense, including soundness, novelty, relevance to hot current debates, relevance to timeless issues, accessibility, and the like). They may even consider the author's credentials, when they think these credentials are a proxy for the paper's likely merit, and when a proxy is needed. They may also consider the author's past misconduct when it may influence the quality of a paper; for instance, they may decline to spend time double-checking a paper written by someone who has a reputation for scholarly fraud.

But they shouldn't consider the author's past offensiveness, or the reprehensibleness of the ideas he expresses outside the paper. It's about getting ideas out to the readers, not about the moral character of the writer (or at least it should be about it). If a new discovery by transistor discoverer William Shockley (who was a racist) adds to our store of knowledge about electronics, or Noam Chomsky's new linguistics work adds to our store of knowledge about linguistics, it shouldn't matter what you think of the authors' ideas outside those papers.

This needn't be the norm for all fields of human endeavor. When we choose dinner guests, we can quite rightly consider their characters, including their viewpoints; likewise when we choose coauthors. Businesses who are hiring people (e.g., pitchmen or entertainers) whose effectiveness rests partly on public goodwill may consider whether an applicant has done things that have cost him such goodwill. Even academic institutions may — and sometimes should — consider the character of those whom they choose to honor through special honors and awards. And there are even plausible arguments for considering the character of professors, who after all need to judge students fairly, serve as role models for them, and compose fair-minded and accurate lectures with minimal administrative supervision (though I think that on balance universities ought to avoid considering professor's ideologies, despite these concerns).

But the learned journal is a different institution. Its purpose isn't conviviality, collegiality, moneymaking, role modeling, or honoring the honorable. It's an honor to publish in the Yale Law Journal, but the Journal doesn't publish articles in order to honor people; publication of article doesn't mean approbation of the author. Its editors should stick to evaluating ideas in an attempt to advance knowledge, and leave evaluating authors' characters to others.

The Journal's Editor-in-Chief also pointed out some important practical reasons justifying his decision not to retract the offer: (1) Evaluating authors' characters requires journals to get into the business of investigating charges and responses. ("In this case, the central facts of the incident involving Camara are uncontested, but they might not be in other circumstances.") (2) The exception would be hard to limit just to racist epithets, but is likely to grow to include other material that many find offensive. (3) If the Journal excludes some authors for their bad outside-the-article ideas, this would suggest that it's endorsing the outside ideology of those authors whom it does publish. Yet the main point, it seems to me, is maintaining a clear focus on one main goal — the publication of ideas that advance the progress of knowledge.

UPDATE: Links fixed; sorry they were broken.

UPDATE: See also this post by Dan Markel on Prawfsblawg, which I largely agree with (though I'd go further than he would, and say that, yes, "the YLJ (or some comparable journal in philosophy and social thought) should publish Heidegger simply because of the work's contributions," even though Heidegger was a Nazi. (I also agree that if there were a narrow exception for Nazis, Stalinists, and the like, this author -- even if he were sincere and unrepentant, which seems unlikely here -- is very far from that exception; but of course the difficulty with narrow exceptions for Nazis and Stalinists is that they rarely stay narrow.)

Julian:
Eugene: the links don't work. They all have "http://volokh.com/posts" inserted before the actual URL. This applies to both posts on this topic.
12.21.2005 3:31am
sammler (mail) (www):
This reminds me of the excommunication of Paul deMan, a leading literary theorist until it emerged in the 1980s that he had written pro-Nazi articles in the occupied Low Countries. No "practical considerations" were going to save him from those 40-year-old mortal sins.
12.21.2005 3:54am
Thief (mail) (www):
I remember reading about Camara in The People vs. Harvard Law. What Camara did was a mistake. He was punished severely for it, in my view, far harsher than anything he deserved. (HLS practically ruined his career chances among law firms; even though Camara graduated from HLS with honors, the only job he could find was as an adjunct PoliSci professor at Hawaii Pacific.) But he has learned from it, and moved on, and apparently succeded. Apparently, his critics simply cannot do so.

I suppose if they had their way they would have branded Mr. Camara with a Scarlet "R" a la Hester Prynne's Scarlet "A." Enough is enough. Kudos for YLJ for being able to look past the critics' misplaced anger and judging Camara's work on the merits.
12.21.2005 4:53am
Jeroen Wenting (mail):
Each statement should be taken on its own merits, not on previous statements (unless referring or relevant to those previous statements of course, in which case there is clearly a context to consider).

Maybe statements from someone who in the past was known for certain objectionable views that are related to the same subject matter should be scrutinised more than those of people not known to (have) harbour(ed) such views, but that too is a slippery slope.
12.21.2005 5:03am
btorrez (mail):
Where are all the academic types that rallied to the defense of the Ward Churchills of the world? I don't agree with either Churchill or Camara, but they have, in my view, the right to hold minority (pun intended) opinions. Camara just picked the wrong target.
12.21.2005 6:24am
John Gillmor (mail):
To not publish is to engage in the ad hominem fallacy.
12.21.2005 7:10am
Aakash (mail) (www):
The links are broken right now, but it's not that hard to know what pages they are targeted to.
12.21.2005 7:40am
Phil (mail):
If only Camara had done something trivial, like shoot three Taiwanese folks, then we could be sure that he was capable of redemption
12.21.2005 7:45am
TC (mail):
What exactly was the racist statement?
12.21.2005 8:59am
TC (mail):
Ahhhh, should I have post #2....
12.21.2005 9:00am
TC (mail):
Should have READ post #2. (I haven't had any caffeine yet today...)
12.21.2005 9:01am
jurisprude:
Academic journals are special institutions, with a special mission: the publication of ideas that advance knowledge in their field. To operate best, it seems to me, they should be committed single-mindedly to that goal . . . they shouldn't consider the author's past offensiveness, or the reprehensibleness of the ideas he expresses outside the paper. It's about getting ideas out to the readers, not about the moral character of the writer (or at least it should be about it).

I touched on this briefly in a comment to a previous post, but thought it would be worth repeating here: while I agree that the comments that Camara made at 17 should be excused, I don't necessarily agree that had he said the same things yesterday, the journal could be faulted for refusing to publish his piece. As you say, the mission of a journal is to get ideas out to the readers. If a journal gets a reputation (even from a single incident, regardless of how fair it may be) for publishing works by racists or sexists or what-have-you, it won't be able to fulfill that goal as well because many people won't take it as seriously. Refusing to publish a piece by an avowed racist would merely be a wise business decision on a journal's part.
12.21.2005 9:03am
My 17 Year Old Daughter (mail):
This whole debate is, like, sooo gay.
12.21.2005 9:26am
David Sucher (mail) (www):
Of course the Journal is correct and should publish.
Have people (who oppose publication) lost all touch with reality? The kid was guilty of nothing more than "stupidity."
What sort of pompous prigs do they attract to YLS? (I hope that's not too much of an invenctive for this Blog.) It's astonishing.
12.21.2005 10:28am
WAB (mail):
As an editor of an academic journal I strongly support the position taken by the Yale Law Journal and the points made by Eugene. Our job is to provide quality control concerning submitted material, not 1) to censure the author for any purpose except academic misconduct related to the research s/he is reporting, nor 2) to censor the author for material that the government thinks might be "too sensitive" for public distribution.
12.21.2005 10:39am
Public_Defender:
I agree that they should publish the paper. My only quibble is with the apology, which is inartful but appears to be sincere. As someone who represents people who have committed far greater evils than Mr. Camara, I sometimes have to "help" people make meaningful apologies.

Always be suspicious of an apology for hurt feelings as opposed to an apology for doing the act that caused the hurt. Here, Mr. Camara writes that he is "sorry for the hurt that my use of racially offensive language in my 1L outlines has caused and continues to cause."

He also expresses "regret" that he used the words, but "regret" is far different than apologizing. I can regret that I robbed the bank because I got caught, but that doesn't mean I ackowledge that robbing the bank was morally wrong.

A more artful apology would have said, "I'm sorry for using racially offensive language and for the hurt it caused."

I say that the apology was inartful, not insincere, because Mr. Camara ackowledges that his remarks were "offensive," which shows that he is accepting responsibility for what he said.

Again, I think the old remark should not stop his current work from being published. But I'm also glad he had to go through the apology exercise to save his academic reputation.
12.21.2005 10:49am
Justin (mail):
On the publishing mode: I'm not sure I agree. First of all, being published in the Yale Law Journal does more than just get your idea across to readers of the Journal. Because the Journal has to consider its own prestige, and the effects of popularizing a certain writer, it has the right, and to a lesser degree, the duty, to consider (though with much reservation) the moral outcomes of accepting or not accepting publication. On the other hand, I may end up agreeing for practical considerations - the ability for Yale law students to weigh these considerations are extremely low, and the overall damage the Yale Law Jornal can do (in light of the competitive enterprise of academic law publishing) is relatively insiginificant.

On the Camara thing - I disagree that he has necessarily suffered enough, if anything. Although his young age has been the one thing that weighs as a mitigating factor (but, on the other hand, he was mature enough to be at Harvard Law), this is a guy who has shown absolute moral callousness. This seems to me an important and underrated characteristic in a person's overall value in the law, PARTICULARLY in law teaching. I'd much rather Camara stuffed away at Irell and Minella where he can rant all he wants about minorities to his fellow partners, rather than subconsciously coloring his education of the constitution to youngsters based on what is minimally a complete ignorance of race in America (and more likely overt racism).
12.21.2005 11:34am
TL:
This speaks more to the immaturity of Yale Law School current students than Mr. Camara. If more than just a few radicals sign this petition, YLS has a real problem. Clearly the reaction is disproportionate to the cause. It is stunning that our "finest" law school doesn't seem to have a student body capable of glazing over the roughness and imperfections of fallible members of society. All in the name of social justice.
12.21.2005 11:43am
Jackson (mail):
"I'd much rather Camara stuffed away at Irell and Minella where he can rant all he wants about minorities to his fellow partners, rather than subconsciously coloring his education of the constitution to youngsters based on what is minimally a complete ignorance of race in America (and more likely overt racism)."

The most remarkable part of this whole story to me is how Camara has been made into a monster based on a relatively minor offense that he has since apologized for. Four years ago, he put a racially insensitive and offensive word in an unpublished con law outline, and now you expect this means he will "rant about minorities" and generally corrupt the youth of Athens? It's incredible to me that such a minor indiscretion can produce such an extreme reaction.
12.21.2005 11:54am
Marcus1:
Justin,

Are you basing that assessment on his commnents in the outlines or other opinions he has expressed?

If you are only referring to the outlines, you seem a bit out of touch, with respect. Is this an accusation, to say that a 17 year old is ignorant about race in America? I'm not sure anybody understands race in America.

I'd be interested if you could articulate what he fails to understand. I would say offering it publicly, while apparently recognizing that it contains racial epithets, reflects significant political immaturity. The idea that it is "more likely over racism," though, seems rather far-fetched and out-of-touch.
12.21.2005 12:10pm
Justin (mail):
I disagree that the reference THROUGHOUT his conlaw outline to the term "nigs" is either "relatively minor", given that it is evidence of his viewpoint of race in America, and African-Americans particularly.

I believe that once someone admits that the use of "nigs" to describe the claims of african americans in a con law outline are "racial epithets" and "reflects significant immaturity", this shows that the "political immaturity" is either due to OVERT racism or ignorance of racial matters, unless what Marcus meant to say was "it's morally fine to think that way as long as you don't say it, which is not so much immoral but inconvenient." Since reading Marcus1 in that way would be to read Marcus1 a bigot, which I most assuredly do not think appropriate to assume, I'm left with only the two other possibilities.

The reason saying "nig" or its longer equivalent is condemned is not the same reason that saying cursewords are condemned. It's because the statement of such is indiciation of a racist mindset, as, unless context permits otherwise, only a racist would feel the need to make such a characteristic.

I do not think Kiwi's comments, outside of sheer ignorance of US racial history (on a relative scale, Mr. Jackson, to what we expect a Harvard Law Student to be able to understand), can be explained away by context. Kiwi Camera has provided a strong indication that in his mind Black people = n*****. The is the problem. The unfortunate (for him) mistake that he provided evidence which supports the conclusion is not in itself why outrage is deserved.
12.21.2005 1:59pm
Fire Marshal Bill (mail):
Like Professor Volokh above and others elsewhere, I was concerned by the nature of Mr. Camara's first "apology." However, I became more open to the possibility that Mr. Camara's initial apology was odd because, well, he himself is odd. (despite the title of the article).



"[H]is father also thought about all of the traditional high school activities his son would miss. "To me as a parent, it was a difficult decision because academics aren't the only important things you learn in high school," Camara said. "There's overall character development, social and emotional development. Really, we just left the decision up to him. It was difficult as a parent to let go."

Kiwi insisted the jump from eighth grade to college made sense. And he's made it work.
"



After reading the article from which the above passage was taken, I am more willing to take Mr. Camara's word that he is not a racist. If Mr. Camara genuinely was surprised that people considered him a racist for writing "nig," it might be possible that, given his unique childhood, he never experienced or integrated the social norms pertaining to that word.

Although I am fluent in Castilian and I have spent the majority of the past several years in Spain, I still managed to make a room full of associates drop their jaws and a partner some files. I had used a word for South Americans that, unbeknownst to me, was entirely pejorative. I had not gleaned that from my personal experiences. Two days later, an associate asked me about rap music and what I "thought about the niggers." He honestly did not know that his use of that word would be offensive in the United States. He was unnerved by my response and asked me, "If it's so bad, why do they use it all the time in songs?"

Bottom line: his age may be less important than other factors in his socialization.
12.21.2005 2:17pm
The Original TS (mail):
You're absolutely correct, Eugene. In a more perfect world (egos and tenure not withstanding), academic publications would be published anonymously and the focus would be strictly on the ideas rather than the author.

This is one of the things I find most fascinating about the Internet and the blogosphere. No one knows who I am. I might be John Roberts or I might be an unemployed street sweeper. That's irrelevant. The only thing that is relevant is the quality of my ideas. I have this fond cyber-age "The Prince and the Pauper" fantasy that the powers that be occasionally venture out onto the Internet for an anonymous reality check on their perceptions and ideas.
12.21.2005 3:01pm
Clayton E. Cramer (mail) (www):

Two days later, an associate asked me about rap music and what I "thought about the niggers." He honestly did not know that his use of that word would be offensive in the United States. He was unnerved by my response and asked me, "If it's so bad, why do they use it all the time in songs?"
When I was in elementary school and junior high the N-word was completely unacceptable. (I think I heard it once, except in movies or on television.) By the time I finished high school, I was hearing it ALL THE TIME--and entirely from black students at my high school. Today, it is WIDELY used. I would not find it impossible (although unlikely) that a smart but immature student of the last few years might have spent so much time in rap-land that he didn't see the diminutive form as unacceptable.
12.21.2005 3:39pm
3L LSU (mail):
Justin,

Just write nigger when you mean nigger. This is an intellectual coversation for crying out loud.
12.21.2005 3:50pm
Bill M:
Who else might be in the same boat as Camara (that is, doing scholarly research despite some background problems)?

Robert F. Stround wrote Diseases of Canaries and Stroud's Digest on the Diseases of Birds while serving a sentence for murder.

Hannibal Lecter, MD, did a piece on surgical addiction for the Journal of Clinical Psychiatry while institutionalized at the Baltimore State Hospital for the Criminally Insane.
12.21.2005 4:42pm
Edward A. Hoffman (mail):
I particularly like the last sentence of the editor's December 14 email: "The importance of this issue -- to the Journal and the school -- cannot be understated." (My emphasis.) If someone who writes this way can become the editor-in-chief of the YLJ, it's no wonder I constantly see such bad writing from lawyers with less lofty credentials.
12.21.2005 10:58pm
Porkchop (mail):
I'd be interested in knowing the ages of the posters on this thread. As a parent of three, two of whom are still in high school, I can state confidently that there is no limit to the utter stupidity of what teenagers, even really intelligent ones, can do.

If this is the worst thing that Camara has done, then I suggest everyone ought to get over it. No one is dead or hospitalized; no one's life has been ruined. One of my oldest daughter's high school classmates is serving time for murder; another was just arrested after robbing a bank. (And these are all graduates or former students of one of the best public high schools in the United States (by objective standards).)

At most, some number of people have been offended by Camara's outline. The kid has apologized. People do change and mature. Somehow, some people won't be satisfied unless he tattoos an "L" for loser on his forehead and commits to grovel before society for the rest of his life.

For those who are older, I would guess that many (perhaps most) of us would not be where we are today if every stupid thing we did before the age of 30 were held against us. Many of the posters on this website seem to be under that age. I can tell you now that none of you have yet made your worst mistake. By what standard shall we judge you when you do?
12.21.2005 11:33pm
Marcus1:
Justin,

While I respect your passion, I don't think you understand all members of society as well you think. I have had many friends who use all kinds of epithets, without any ill will whatsoever. I personally have used epithets towards groups that I intensely admire.

Words do not have universal meaning. You are ascribing views to Camara based on a word he used, with no real knowledge of what he meant. You are making huge assumptions, which I don't think are justified.
12.22.2005 5:05pm