University of San Diego Law’s Larry Alexander remains the Robin to Amy Wax’s White Grievance Batman, but the co-author of Wax’s epic screed about how much better things were in the 1950s is capable of serving as belle of the faux outrage ball all on his own.
Professor Alexander’s latest 15 minutes of academic infamy went down in four easy steps:
1) Write an article seemingly designed to provoke the journal’s student editors to seek edits for racially insensitive language.
2) Refusing to make those simple edits.
3) Having the journal revoke the invitation to publish his work.
4) Kick off “academic freedom” hissyfit.
It began with the Emory Law Journal asking Alexander to participate in a festschrift for Professor Michael Perry. So the assignment — the reason why Alexander was asked to write in the first place — was to say something nice about Perry’s work. Despite this, Alexander wrote about how wrong he thinks Perry was when Perry suggested that under certain circumstances, courts should hold the government to a higher standard when it comes to the disparate racial impact of specific laws.
Then, Alexander litters his draft with racially suspect language. To be clear, this is language that responsible editors would flag for revision under the best of circumstances.
Perhaps the weakest part of Michael’s case for DRI theory is his account of the etiology of the handicaps he attributes to the blacks.
This is what the Emory Law Journal’s editors meant when they wrote: “We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive.” The thing is, there’s an effective way to write that argument. It goes something like, “Michael’s DRI theory suffers because it relies on the premise that modern discrimination is easily attributed to specific past policies as opposed to complex and sometimes contradictory forces.” See how that says the same thing without… all the awful stuff.
That’s what good editors do. But Alexander didn’t want to listen to the editors even though (or, one suspects, “because”) he knew that his failure to engage in the editing process would result in the journal pulling the article.
And not for nothing, but journal editors are also charged with editing for substance and ensuring that scholarship is properly supported. This piece wasn’t intended to be a full-blown law review article, but it at least needs some evidentiary support for its boldest claims. Instead, his footnoting rarely cites caselaw or peer-reviewed studies, opting instead for shout-outs to anecdotes from a high school webpage and cherry-picking from editorials in right-wing news outlets like CNS News.
For those that ascribe to the theory that law is a professional school, consider that Alexander: didn’t understand the assignment, refused to turn around the edits, and failed to add proper authority for his conclusions. For any of his students, that’s a one-way ticket to getting fired.
But, of course, the Volokh Conspiracy Extended Universe rushed to Alexander’s defense in trying to apply lipstick to this pig of an article, hoping to gussy the whole situation up to an egregious assault on academic freedom.
The editors probably wish they could argue with Larry’s discussion of disparate impact in constitutional analysis. But, there, Larry was just being mainstream: He was agreeing with the Supreme Court in Washington v. Davis (1976) that a statute that was not intended to disadvantage a particular race or ethnicity isn’t rendered unconstitutional simply because it has a disparate impact on such a group.
These people really don’t understand what a tribute is do they? The “editors”
aren’t trying to argue with “Larry’s discussion of disparate impact in constitutional analysis”… Professor Perry was (indirectly because he was thrown into this argument in absentia). Perry laid out the case that Alexander tried to rebut through meandering discussions of reparations and why he thinks Asians are better at math.
This Gail Heriot article in Volokh essentially says “the editors are probably just sore that Michael Perry’s work isn’t as smart as Larry Alexander’s” which is, again, a hell of a way to say “the editors really should have included this heartfelt tribute.”
But conservative law professors want a cookie and a platform to publish on the back of asserting that random stats about single-parent households have more of an impact on poverty than policies locking Black Americans out home loans for decades.
These professors simply aren’t serious people. Because if they were, they’d take the fact that, as Heriot puts it, “Being a conservative can make it a little harder to get one’s articles published in a traditional law review,” as a challenge to work twice as hard to build a compelling case. Galileo and Copernicus didn’t respond to critics with, “I dunno… just seems like the Sun is pretty big deal.” They did their math.
But, I guess, if these folks were good at math they wouldn’t be law professors.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.