A Bit More on Scholarly Journals and Authors' Past Offensive Speech:

By coincidence, the days in which the Yale Law Journal / Kiwi Camara controversy unfolded also brought us this story (thanks to How Appealing for the pointer):

Four white men fired by the Philadelphia School District have won a racial-discrimination lawsuit, and a federal jury awarded them nearly $3 million in damages.

After Friday's verdict, Carl E. Singley, a prominent African American lawyer who represented the school district, exchanged words with some members of the all-white jury as they rode a courthouse elevator. He called them "crackers," four jurors said in interviews.

Within 30 minutes, U.S. District Judge Harvey Bartle 3d brought Singley and five of the seven jurors in the case back into his courtroom. Singley, a former Temple Law School dean, promptly apologized.

"What I did and said was inappropriate," Singley said, according to a transcript. "I should not have disrespected you, and I do apologize." . . .

So here's the question: Imagine that a month from now, the Yale Law Journal receives an article submitted by Carl Singley. How would you like the editors to react? Which reaction do you think fosters the best attitude on the editors' part, the attitude that's most likely to help advance legal scholarship?

  1. "Throw it out. We don't publish articles by people who have ever said anything racist."
  2. "Hard call. On the one hand, most whites are probably not as insulted by 'cracker' as they are by 'nig.' On the other hand, this was said to the targets' faces, which probably makes it more insulting; Camara's words weren't. Back to the first hand, it sounds like the author was upset and spoke in a moment of anger, while Camara had more time for deliberation, and in fact knew that his words would offend people. But back to the second hand, Singley is an experienced lawyer, teacher, and administrator, not a 17-year-old, who can be expected to do immature things. Back to the first hand, . . . ."
  3. "Does anyone else know? Are they going to cause a fuss? People who get offended by 'cracker' are probably less likely to start protests, e-mail campaigns, and the like than people who get offended by 'nig'; but will they still cause enough to put us in an awkward position?"
  4. "Better set up an ad hoc committee, arrange a town hall meeting, speak to the representatives of all affected groups, and issue a carefully crafted report."
  5. "Hey, is his article any good?"

I vote for (e).

cw (mail):
Do you still vote (e) if he dosen't apologise?
12.21.2005 1:16pm
Would your answer be the same if, instead of an black lawyer calling a white juror "cracker," a white former dean of a law school called a black juror the "N" word?
12.21.2005 1:18pm
The quality of the submission is irrelevant because Yale only realizes brand value/goodwill for selection of the articles, not for their substance. Coke and McDonalds didn't drop Kobe Bryant based on the quality of his work. YLJ is simply protecting it's brand.
12.21.2005 1:19pm
Eugene Volokh (www):
cw and ///: Yes, and yes, as my earlier post on the subject make clear. Scholarly journals should focus on whether the ideas are sound, not on whether the author is a good (or even decent) person.
12.21.2005 1:25pm
I take it you encourage blind law review submissions and offers?
It seems like that should remedy the problems you've addressed.
12.21.2005 1:35pm
Justin (mail):
e is clearly the most relevant, but I don't see why b and c shouldn't also be considered.
12.21.2005 1:44pm
Thorley Winston (mail) (www):
So does this mean that we're going to see a deluge of former students, faculty, and employees from Temple University coming forward to accuse their former dean of having made racist remarks during his tenure?
12.21.2005 1:51pm
David Matthews (mail):
Possibly off-topic, but: how in the world did they end up with an all-white jury in Philadelphia?

More to the topic, does his unprofessional behavior (forget "racist;" this was simply grossly unprofessional) affect his credibility on the article in question? And how much do an author's credenials matter in judging an article for a law journal? (I'm asking, because this question is definitely discipline-specific. I read mathematics journals, and in those, credentials are meaningless; if you've found an elementary proof of the four-color theorem, it matters not whether you're a high-school dropout or a Princeton professor -- or an infamous holocaust-denier for that matter. I also read education journals, and in those, which are also supposed to be scholarly, the author's credentials are often paramount to the credibility of the article itself.)
12.21.2005 2:12pm
Abdul (mail):

off-topic, but: how in the world did they end up with an all-white jury in Philadelphia?

The federal courts recruit their juries from the surrounding counties, while the Common Pleas Courts recruit exclusively from Philadelphia (where eligible voters are more than 60% black).

As a Temple alumn, I think there's slim chance that Singley would ever submit an article to the Yale Law Journal when he's devoting most of his time to setting black legal achievement back 50 years.
12.21.2005 2:32pm
A. Rickey (mail) (www):
Shouldn't we be a bit more bothered that the attorney's behavior was in violation of Model Rule 3.5(c)(3) (or its local version)? I doubt the Yale Law Journal should take that into account either, but (a) violation of legal ethics rules are arguably more appropriate to a law journal than general social norms, and (b) finding out if a lawyer's been censured by a court is at least administrably less difficult than some general character search.
12.21.2005 2:35pm
Justin (mail):
Thorley, I don't see why. What are they going to do, fire him?
12.21.2005 2:50pm
Reverse the whole situation. Can you imagine that it wouldn't be national news for at least a week, with protests galore?
12.21.2005 3:39pm
James Ellis (mail):
You are studying for finals and go to an online site run by the school to download some Property outlines. You come upon one (albeit with a disclaimer) that contains racially offensive material. What's the right response?

(a) Bring it to the attention of someone who can cause it to be removed or redacted (again, perhaps, with a disclaimer to that effect);

(b) hard call. Not said to anyone's face, there is a disclaimer, these are informal notes...but on the other hand...; or,

(c) hey, is this outline any good?

It seems that (c) here is the wrong choice. With respect to the article for the symposium, I agree to some extent with Eugene that the first question should always be "is this any good?" If no, then it's easy. If yes, then there very well may be a series of other issues to address, which go both ways, by the way. For instance, this symposium is certainly bound to attract a lot more publicity than it likely anticipated...that in itself may advance legal scholarship.
12.21.2005 3:39pm
The Original TS (mail):
(e), of course.

But I agree with A. Rickey. Harrassing jurors because you don't like their verdict is a serious ethical breach.
12.21.2005 3:58pm
Splunge (mail):
Who gives a damn if his comments were racist? The important thing is his contempt for a jury verdict expressed to the jury. This guy has no business in the Courtroom as an officer of the Court, i.e. someone enjoying a public trust. I don't think his article should be rejected, I just think he should be disbarred, and that fact noted in the little "note about the author" blurb that accompanies the article.

Eugene's attitude ("(e) is correct") is in many ways laudable, but it overlooks the value in an empirical assessment of the author's "track record" in determining the value of an idea. It's not unreasonable to assess the reputation of an author in judging an idea, because the plain fact is that good and workable ideas do not rain down randomly on everyone. Character matters. Some people are much better than others at sifting out the gold from the trash that bubbles up from the imagination, much better at that unconscious and half-conscious reasoning process that lets one detect what Philip Morrison calls "the ring of truth." Some other people are much more likely to be taken in by plausible-sounding but ultimately foolish notions, and still others lack integrity and will deliberately try to foist delusion on you.

Because of this fact, and because none of us is perfectly equipped to have the same insight as the author into his ideas, it's long been a successful human strategy to factor the reputation of the author into the judgment of an idea. (That is why any completely blind review or judging process is, I think, ultimately doomed to failure. While such a mechanism can undoubtably filter gold from dirt, it's simply not good enough to sift real gold from fool's gold, and it is the latter task which is the really important task of the editor.)

In the case at hand, the fact that this legal scholar made a serious legal mistake is evidence that his legal judgment may have flaws, at least in some areas, and this fact is material to the question of whether an idea he presents can be expected to have merit. It is, therefore, reasonable to take it into account.

The situation is not conceptually different than when a jury is asked to consider the testimony of a witness in a criminal trial and a lawyer tries to impeach his testimony by presenting evidence that the witness is a man of poor character and judgment (a criminal, drug-user, et cetera). The jury is reasonable to to use those reflections of the witness's character to assess the quality of his testimony. In the same way, the editors are reasonable to use evidence of an author's character to assess the quality of his submission.
12.21.2005 4:33pm
What about a law review submission by a professor who left his faithful and pregnant wife for a 23 year old former student? While most of us agree that is inappropriate behavior, I can't imagine any serious law journal even considering rejecting an article on that basis. (Maybe because it would eliminate several prominent legal academics?)
12.21.2005 4:44pm
Jon Rowe (mail) (www):
Singley wasn't the Dean when I went to Temple; he was a Prof. there, though.

Man, the stories they told. He was was "removed" from his Dean position. And it got real ugly.
12.22.2005 9:41am
Thorley Winston (mail) (www):
It would probably would have been better for a school district charged with racial discrimination to pick an attorney capable of refraining from racial slurs in front of the jurors. Granted it was after the trial but obviously this incident reveals his real attitude towards white people and I wonder if any of that came through to the jury when he tried the case.
12.22.2005 1:07pm
Jon Rowe (mail) (www):

As a Temple alumn, I think there's slim chance that Singley would ever submit an article to the Yale Law Journal when he's devoting most of his time to setting black legal achievement back 50 years.

He did sort of redeem himself by coming out against his former friend and client John Street, and endorsing Republican Sam Katz, in the mayor's race.
12.22.2005 4:28pm