The politicization of the Harvard Law Review, and the concomitant collapse of scholarly standards, keeps getting worse. First, there was "L'Affaire VanDyke," in which a student editor of the review published an incompetent review of a book defending the constitutionality of teaching Intelligent Design, a review that could not have survived actual cite-checking.
Now Harvard Law School professor Margo Schlanger has found it necessary to take the extraordinary step of replying to a student Note attacking her work. Professor Schlanger's reply is in the June 2004 issue of the Harvard Law Review, beginning at 2799. She writes:
"I feel compelled to respond to a recent student-written Note that critiques my Article, Inmate Litigation, published last year in the Review. The Note aims to expose my work as an ('at least . . . unconscious') exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA), that restricts the legal rights of some of the most disempowered and vulnerable people in this county. The politics of that inquiry are clear, and I made no attempt to hide them: I think that the outcome of such systematic investigation matters--that it is wrong to curtail litigation rights, even of inmates, if the effect is to deny redress to victims of unconstitutional misconduct or if the policy change is based on false factual arguments. Unlike the Note, that is, I would hold Congress accountable for both the premises on which it rested inmate litigation reform and the results of that reform. The anonymous Note author's (shocked, shocked!) discovery that my piece was driven by such an agenda, hidden in plain sight, hardly requires much analytic insight.
"But whatever one's politics, I believe that there is something to be said for fair and careful use of data, as well. Unfortunately, these qualities are nowhere to be found in the Note. Instead, its author engages both in egregious misreading of my piece--mischaracterizing both my arguments and the data on which they rest--and in illogical argumentation that hides rather than clarifies the meaning and effects of statutory provisions. These failings are particularly unfortunate because they obstruct serious policy debate, which is what my piece attempted to promote...."
Professor Schlanger then documents a series of misreadings and mistakes, worthy of, well, Mr. VanDyke. She concludes:
"I could continue, but I think the point is made. I am confident that my Article (like every intellectual project) has flaws. But I am equally confident that I did not commit--either consciously or unconsciously--the kind of ideologically driven sleight-of-hand that the Note simultaneously imputes to me and itself exemplifies. By my lights, aspirations to fairness and care are not mere prattle, covering for rawer politics, but are (or ought to be) real constraints on scholarship and policy alike. Unfortunately, these appear not to be aspirations the Note shares, and the result is to impede rather than advance both legal and policy analysis."
So what is going on at the Harvard Law Review? Why is the alleged High Church of liberalism, publisher of the most widely read and circulated law review in the nation, permitting right-wing hacks to ruin the reputation of its leading journal? Hopefully, next year's editorial board will do better.
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