Hardly anyone reads law review articles, but those who do are among the most influential readers in the country. Supreme Court justices and federal and state judges rely on academic theories to decide important cases and to set the legal doctrines that shape American life. Professors shape their students’ worldviews by assigning articles appearing in prestigious journals to show that they are authoritative—the law equivalent of peer-reviewed. Though these journals are student-run and -edited, they often legitimize the ideas that become law and common knowledge.
It’s no small deal, then, when a distinguished law review compromises the procedures that help keep it trustworthy. And it is a huge problem if that law review circumvents its usual procedures and drops its editorial standards to push shoddy legal scholarship with a clear—and bigoted—agenda. But if any institution knows how to set its own credibility ablaze, it’s Columbia University, the school that let itself be overrun with rule-flouting student radicals this spring, and whose flagship law review has followed suit.
The Columbia Law Review article at the center of the controversy sounds like a parody of campus pseudo-intellectualism. “Toward Nakba as a Legal Concept,” by Rabea Eghbariah, a doctoral student at Harvard Law School, is approximately 100 pages of fashionable gobbledygook. Its aim is ostensibly to identify “Nakba”—Arabic for “catastrophe,” a term originally referring to the Arab armies’ failure to finish the war they started against Israel in 1948 but now associated with the narrative of Palestinian dispossession—as a term with its own legal meaning and significance. Nakba, in the article’s estimation, means every bad thing about Israel’s establishment, real or imagined; it is “the ongoing structure of subjugation in Palestine . . . an ongoing and unrelenting ordeal, one that has never been resolved but rather managed.” That structure is one “of Jewish supremacy, under which Jewishness has served as the ultimate key to citizenship, rights, and resources.”
Of course, to Eghbariah, “genocide” is part of the equation: “We know that Israel is committing a genocide in Gaza not because a legal tribunal said so, but because genocidal intent permeates Israeli society, military, and politics and because it is corroborated by the material reality of Palestinians in Gaza.” Nakba is thus more than mere genocide, notwithstanding how Israel has achieved a near-miraculous civilian-to-combatant casualty ratio in Gaza during its ongoing war against Hamas.
Rather than enriching legal discourse with arguments grounded in facts and logic, the article fixates on portraying Israeli Jews as the new Nazis. It concludes that the main value of developing the concept of Nakba is that it teaches us “that group victimhood is not a fixed category, and that a victimized group may easily become victimizers.” More bluntly, “Israel capitalized on the Holocaust to create a powerful narrative that monopolizes victimhood to the state.”
This is not serious analysis. It does not begin to address the Jewish claim to the land, the legality of Israel’s establishment, the wars of annihilation that Israel has withstood, or the eliminationism that still animates its enemies. It does not even try. It is little more than an attempt to launder Palestinian-nationalist activism through a respected institution and pass off an ideological position as a serious—if not indisputable—legal reality.
How could something so shoddy get published in one of the nation’s top law journals? As the Washington Free Beacon has reported, “While prospective pieces are typically available for the Law Review’s roughly 100 members to assess ahead of publication, the ‘Nakba’ piece was handled behind closed doors by a group of roughly 30 student editors.” A letter from the Review’s board to its student editors provides more details: while every other piece is made available to every student editor to look at, in this case “a number of student editors had been unaware of its existence until two days before” its publication. Eghbariah’s article was published on June 3 “despite an agreement to delay publication until June 7” to give time for more editors to weigh in.
It’s not hard to figure out what happened here. Most student editors—like most Columbia students—care about procedures, fairness, and scholarly integrity. But some significant minority hijacked the process to use the Review’s prestige as a cloak for activism.
The damage may already be done. Eghbariah’s screed may be cited as an authority establishing the proposition that Israel is uniquely evil, and that American law—specifically its provisions governing relations with and support for foreign nations—must respond accordingly. It will be one more respectable citation for those waging lawfare against the Jewish state.
The Columbia officials who ushered in this era of academically bankrupt and activist pseudo-scholarship are unlikely to do any soul-searching about their role in spreading falsehoods and shredding their institution’s credibility. But Americans, including judges and academics, should remain vigilant in insisting that not everything written under a prestigious name is worth the paper it’s printed on.
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