Harvard Law Review Faces Internal Turmoil After Vote to Block Piece by Palestinian Scholar

Updated: December 11, 2023, at 3:45 p.m.

Editors of the Harvard Law Review, the world’s most cited legal journal, have been embroiled in internal strife following public backlash over their decision to block an article by a Palestinian legal scholar.

The article, by human rights attorney Rabea Eghbariah, argued that Israel’s military response in Gaza to militant group Hamas’ Oct. 7 attack should be analyzed using a legal framework distinct from “genocide” called the Nakba, Arabic for “catastrophe.” The Law Review’s online chairs solicited the piece from Eghbariah, an HLS doctoral candidate, for publication in the organization’s blog.

In a Nov. 18 full-body meeting, 63 percent of the Law Review’s editors voted to kill the piece. On Nov. 21, it was published in the Nation and a separate piece on the subject was published in the Intercept, containing statements from several editors.

The institution has received considerable public backlash since the piece’s publication in the Nation. Roughly 125 law professors signed an open letter raising concerns about “censorship” at the Law Review, and more than 25 editors condemned the decision not to publish in a Nov. 22 public statement, citing academic freedom concerns.

“We are unaware of any other solicited piece that has been revoked by the Law Review in this way. This unprecedented decision threatens academic freedom and perpetuates the suppression of Palestinian voices,” the statement reads. “We dissent.”

The Law Review did not comment on specific criticisms for this article but referred The Crimson to a Nov. 21 statement on its website.

“The Harvard Law Review has rigorous editorial processes governing how it solicits, evaluates, and determines when and whether to publish a piece,” the organization wrote. “An intrinsic feature of these internal processes is the confidentiality of our 104 editors’ perspectives and deliberations.”

Since Nov. 21, The Crimson has spoken to or received statements from 19 Law Review editors, who were granted anonymity to discuss confidential internal editorial processes.

Some editors alleged that the online chairs had knowingly sidestepped the Law Review’s processes by not sharing the article pre-publication, while others said these allegations mischaracterized the truth as an attempt to lay blame on the online chairs following public backlash.

The online chairs — Sabrina A. Ochoa and Tascha Shahriari-Parsa — denied violating Law Review policies.

“It is greatly unfortunate that multiple editors of the Law Review would make these statements when a large amount of time and effort has been devoted over the past month to internally clarifying HLR Online processes to the 104-member body — clarifications that directly contravene the factual assertions made in these criticisms,” Ochoa wrote in a statement.

‘A Vote Not to Publish’

On Nov. 28, Eghbariah participated in a live reading of the piece hosted by the unaffiliated student organization Law Students for a Free Palestine. At the event, Eghbariah alleged he had received discriminatory treatment from the Law Review when they chose to block his piece.

“The decision by the HLR board is appalling and alarming, and the decision to subject me to an exceptional and unprecedented process, eventually culminating in a vote not to publish my piece, is not only discriminatory but also reveals the Palestine exception to free speech,” he wrote in an emailed statement. “Ironically, by choosing to kill my piece, they amplified it; and by refusing to publish it, they demonstrated its point.”

A month earlier, Eghbariah agreed to write a blog article about the conflict slated for publication between Nov. 8 and Nov. 10 after the online chairs contacted him on Oct. 15.

The piece, per several editors familiar with the process, then went through an expedited version of the Law Review’s editing pipeline for blog pieces. It was “time-sensitive,” Shahriari-Parsa wrote in a statement, due to the online chairs’ “own judgment of the timeliness of a piece about the legality of an ongoing military action and the silence of legal academia.”

The online chairs then met on Nov. 7 with Law Review President Apsara A. Iyer to discuss the blog’s November issue, per a Nov. 10 email from Ochoa to the Law Review’s full body.

Per Ochoa’s email, the online chairs proposed postponing the publication of Eghbariah’s piece by six days, but Iyer “did not find this compromise compelling.”

According to a body-wide email Iyer sent prior to Ochoa’s email that same day, Nov. 7 was when she and other top Law Review leadership had “learned that the Online Chairs had accepted a piece on the Israel-Palestine conflict” for publication by Nov. 10.

However, this contradicts an email obtained by The Crimson Monday in which a member of the Law Review’s senior leadership reached out to Eghbariah with a contract for the piece on Nov. 6.

Iyer did not immediately respond to a request for comment.

In her email, Iyer said she and other top Law Review editors had “brainstormed” approaches for evaluating the piece, but their “proposed mitigating strategies” would require at least one week to implement. At the same time, she wrote, “the ultimate publication date was not likely flexible beyond” Nov. 14.

On Nov. 9, 13 editors — including the online chairs, members of the Law Review’s diversity committee, the president, vice presidents, and managing editors — convened to discuss the future of Eghbariah’s article, per both Ochoa’s and Iyer’s emails.

At this meeting, Iyer wrote, the group decided that due to time constraints, it could not be published without “creating immense harm to our community.” She also wrote that she did not want to call an all-editor — or Article IV — meeting to discuss the publication of the article as it “would have added strain on editors who have already expressed to us concerns about their identities being marginalized.”

But the Law Review’s members pushed back.

Editors said that following Iyer’s email, several of the Law Review’s top five editors emailed the body to issue dissents and more than 30 members called for an Article IV meeting.

The ensuing Article IV meeting, editors said, lasted around six hours and resulted in an anonymous vote to block Eghbariah’s piece from publication.

Several editors present at the meeting told The Crimson that much of the time consisted of arguments over the contents of the article — including debates about its merit as a work of scholarship as well as over whether it was antisemitic. They also recalled discussing the consequences of publishing an article on such a contested topic.

In response to a request for comment, Eghbariah referred back to an author’s note posted on his Instagram account Nov. 22.

“It is fashionable these days to distract attention from the material reality of Palestinians by leveling claims of antisemitism or charging pro-Palestinian voices with supporting the killing of Israelis,” he wrote. “I reject succumbing to these false suspicions that are rooted in the racist assumption that Palestinians are innately hateful and violent.”

“The people of Gaza, who continued to be slaughtered for over 40 days, cannot afford these discursive distractions,” he added.

Some editors also recalled concerns that they would face public backlash or doxxing if they published the article and that these consequences would likely disproportionately fall on people of color at the Law Review.

Protesters gathered at the Caspersen Student Center for a silent vigil for Palestinians killed during the Israel-Hamas war. By Neil H. Shah

‘A Smokescreen’

At the Article IV meeting, editors considered a motion to censure the online chairs for how the piece had been managed. But following a discussion of the process by the online chairs and a desire to “come together,” the body quickly voted down the measure, according to an editor.

Several editors who spoke to The Crimson raised concerns about the conduct of the online chairs for not making the article broadly available for editors to read before publication. Many of these editors expressed frustration with news coverage of the Law Review’s decision not to publish the article, which they claimed falsely characterized the Review’s decision as resulting from fear of retribution rather than concerns about process.

In May, Ochoa and Shahriari-Parsa had passed a resolution to increase transparency with other editors about the blog’s content and share articles in advance on an internal Slack channel at their discretion.

Several editors, therefore, said the online chairs had not acted in good faith by not sharing this article on Slack. But editors who spoke to The Crimson largely agreed that the online chairs had not broken written policy at the Law Review as the resolution was non-binding.

Per a copy of the Law Review’s content policies obtained by The Crimson, the online chairs “hold primary responsibility” to solicit and edit blog articles.

One editor characterized the allegations of misconduct against Ochoa and Shahriari as “a smokescreen.”

“It would also be absurd for the Law Review’s reaction to a minor internal process deviation to be canceling an outside author’s publication contract,” the editor wrote in an email. “The only deviation from process was our unprecedented decision to revoke a publication-ready piece that we solicited.”

But other editors maintained that Ochoa and Tascha had acted inappropriately.

“The majority of those who voted against publication on the author’s timeline were either opposed to it because of the Online Chairs’ seemingly willful violation of their own self-imposed procedures for soliciting and publicizing online content to the body,” wrote one editor in an email.

Editors said they remain frustrated about the arguments and fallout, both within the Law Review and in the media, from the decision not to publish Eghbariah’s article.

They said discussions regarding diffusing the situation have been paused due to the Law School’s finals period but that there was a tense atmosphere within the building. One editor described the atmosphere at the Law Review as “divided and gloomy.”

“HLR has lost its moral core, and it is not even willing to consider the reality, widely recognized across the legal profession, that what we did has no justification,” one editor wrote in an email.

“Instead, while two million Palestinians are still being killed, displaced, and starved, we are sitting here squabbling in The Crimson about why exactly we broke precedent to censor a piece," they added.

Correction: December 11, 2023

A previous version of this article incorrectly described Rabea Eghbariah’s article as arguing that Israel’s military response should be analyzed through the legal framework of “genocide.” In fact, the article argued that a distinct legal framework, called the Nakba, should be used.

—Staff writer Jo B. Lemann can be reached at jo.lemann@thecrimson.com. Follow her on X @Jo_Lemann.

—Staff writer Neil H. Shah can be reached at neil.shah@thecrimson.com. Follow him on X @neilhshah15 or on Threads @kne.els.