NorthDecoder.com -- North Dakota's Most Influential Political Blog | North Dakota Law Review: Right-Wing Christian Fundamentalist Propaganda

Law Reviews are academic/legal journals published, primarily, by top law school students from around the United States. In theory, they contain scholarly, academic, well-researched articles from which lawyers and judges copy and paste excerpts when trying to write something that looks scholarly and academic. [I'm kidding here.]

To be on a law review editorial board at most schools, one must be in some small top percentage of the law school's class. This isn't true at the University of North Dakota or at least it wasn't when I went there. Any Tom, Dick or Harry willing to put in the time could sign up to be on the Law Review at UND.

According to it's title page, the North Dakota Law Review is "published quarterly by the University of North Dakota School of Law...." "Members of the North Dakota Bar Association receive the LAW REVIEW for a fee of $10.00 per year, automatically extracted from their yearly dues..." As a member of the bar association, I automatically get a copy of the North Dakota Law Review. I usually get my copy, scan the cover for the titles of articles inside, and read the ones whose titles I find interesting, ignoring the rest.

The most recent issue of the North Dakota Law Review arrived on my birthday last week. I read the cover. Here's a list of the titles from the front cover:

Interesting, I thought. "Does the Family Have a Future?" Catchy title for a law review article. It kind of presumes there's a question as to whether the family has a future. More than that, it sounds like the kind of scary title one might expect from the Heritage Foundation or some other far-right outfit. It caught my attention. Well done.

Before I get too far into this, I have to admit something: I'm not all that afraid of gay people. If gay people move into my neighborhood -- married or not married -- I'm not going to worry about them breaking into my house and rearranging my living room. I'm not worried about my choice of window coverings or color schemes being criticized. (I'd be more afraid of the kids of some of our Republican politicians if they happened to move into my neighborhood.) I know some gay people, and they seem pretty normal to me. Very normal. Some are hard-working, local people, right here in Bismarck and Mandan. They might sit at the table next to you in a restaurant, or in the pew behind you at church. And you don't even know it. Scary, huh? No? Didn't think so.

I don't think gay people put "the family" at risk anytime soon, any more or less than your average right-winger -- like Sen. Larry Craig or Ted Haggard.

Anyway, so I flipped open to some random page not far from the middle of the latest NDLRev, to page 1307, and here's what I got:

Interesting. No footnote for that sentence. "...from the beginning of human history." I have to wonder which "human history" the author is writing about. Is it the human history of the Native American oral tradition? Is it the human history of the Koran? No. It is, the writer tells us, the human history of the Bible. He cites as authority Genesis 2:24, I Kings 11:3 and, of course, Deuteronomy 24:1. I wish he could have cited something from Leviticus. I love Leviticus. You can never get enough Leviticus. For the evangelical Christian, the author also notes Matthew 19:3-18.

They usually have some biographical info on the author in the first footnote on the first page. So I flipped back to the first page of the article. Here's what I learned about the author:

And the "National Legal Foundation"? What's that? According to "themediaroom.com" it is "a Christian constitutional litigation firm and policy think tank committed to restoring America's Biblical foundations." I bet the National Legal Foundation couldn't pay for better advertising than to find a pathetic, desperate law school law review willing to publish one of its leaders' fundamentalist rants. Now Professor Fitschen can say this particular rant is "published." Other fundamentalists can cite to the North Dakota Law Review as secondary legal support for their similar "protesteth too much" homophobic rants.

When reading a law review, lawyers and judges want the writing to be legal, academic and scholarly. They want to be able to point to it as a legitimate secondary legal authority. They don't want the authors to be citing to the Bible, the Koran, the Book of Mormon, the Tao-te-ching, the Veda or the Upanishads as legal authority for anything. They just don't. It's not useful. If you believe in God and if the Bible is your chosen primary religious/spiritual reading material -- as it is for many lawyers and judges -- they're all great with that. Just don't ever -- ever -- pretend that the Bible is something other than a deeply important piece of religious and spiritual work. It is not a legal authority. Outside of the small circle of a few evangelical "universities," it is not citable as an authority in any academic, scholarly or legal work. If it is, then scientists should be able to cite to the Bible as authority for the proposition that men can part seas, turn staffs into serpants and walk on water. [I know of only one "scientist" who probably would try to get away with it.]

The latest issue of the North Dakota Law Review has changed how I look at the North Dakota Law Review. I used to think it was a worthwhile publication, filled with legitimate legal research and writing. Now, in my eyes, it has evolved into a scare tool for far-right Christian fundamentalists. I hope that I never see a judge or lawyer citing to the universe of law reviews that would publish articles citing Bible passages as legal authority. That universe now includes the North Dakota Law Review.

Coming soon: The answer to the question: "Can I cancel my subscription to the UND Law Review? If so, will I get my $10 refunded to me?"

The answer
written by Chet, July 21, 2008, 12:33 PM

No.

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I had the same reaction when I received my issue.
written by Jason , July 21, 2008, 12:40 PM

I too was greatly disappointed when I received my issue last week. This has been a work I greatly respected, and when I was published as a student, considered it a great honor. I remember being expected to cite to authority for every concept, no matter how small it may have seemed. I hope to never see junk like this again in the North Dakota Law Review.

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Excursions into Wonderland
written by nimrod alias, July 21, 2008, 02:27 PM

I delved briefly into Prof. Wardle's "The Attack on Marriage as the Union of a Man and a Woman." The opening analogizes the Nazi Holocaust of WWII to the "global movement to legalize same-sex marriage." This is not the character of article I expect to read in any public university's law review, at least not without a rejoinder in the same issue. The faculty and students ought to take a hard look at the mission and role of NDLRev and bring it back on track.

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...
written by Big Jake, July 21, 2008, 05:12 PM

To you lawyers out there, just who the hell is in charge at UND law school? How long has this been going on?

What little you posted is an affront to the whole legal profession in North Dakota. This is nuts. Our religious freedoms are threatened by these crazies. I must admit that my patience is wearing a little thin, however, history tells us that the quickest way to damage any religion is to get the state to sponsor it. In the final analysis, these crazy right wingers will find that our Constitution and the distinct separation of church and state is the salvation of organized religion. It seems to be taking too long.
THOUGHT FOR THE DAY

Have you ever noticed that when someone wants to talk to you about their religion, they never want to know about yours?

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take action/make a statement/make space on my bookshelf for scholarly works
written by msharapova, July 21, 2008, 09:07 PM

What if we all sent our copies back?

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Making a statement
written by Chet, July 21, 2008, 09:32 PM

To make the statement, to whom do we send our copies? The Executive Director of SBAND? The Dean of the Law School? The faculty adviser for the law review? The president of the bar association?

Pat Robertson?

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...
written by msharapova, July 21, 2008, 09:40 PM

I am assuming it was the ND bar that told you that you couldn't have the $10 back and cancel the subscription?

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Excerpt
written by Chet, July 21, 2008, 09:44 PM

Correct. Here's an excerpt from the e-mail.

If this were a matter of some lobbying position or political action, you would clearly have a right to a reimbursement under Keller V. State Bar of California, but I don't think this situation is controlled by Keller.

I've been thinking about Keller and whether or not it might apply.

Isn't the article expressly lobbying?

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...
written by msharapova, July 21, 2008, 09:52 PM

It sounds like it from what you are saying. To tell you the truth, I did the same scan as you did and threw it under my desk in disgust. Of course, I don't have a blog. :-) And I haven't read Keller v. State Bar of CA. Was the gist of the law review article an attempt to persuade, to encourage the reader to take some sort of action?

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They got you Chet.
written by S. Fred Wood, July 21, 2008, 10:17 PM

You must be behind in your reading for a few months. That's got to be an April Fools issue. Has to be. Boy, I bet you feel foolish now.

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To Me
written by doug d.riley, July 22, 2008, 12:02 AM

To me religion an politics are a very dangerous combination i do believe that it was supposed to be freedom of choice of religion,but once religion is joined hands with politics it seems that one religion has perceived that this is the way life should be an makes it law,an before you know it what you do in your bedroom is against the law, what someone does in their own home is their business,an to me no religion is better than the other,how you worship a higher power is your choice,forcing someone to make that choice is wrong,and what turns your cookies i really do'nt care as long as it does'nt involve kids,minors or animals....

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Conclusions
written by Chet, July 22, 2008, 08:33 AM

Here's an excerpt from the professor's conclusion:

The attack on marriage is not going to stop. DOMA [the defense of marriage act] is being and almost certainly will continue to be repeatedly challenged, unless and until it should ever be declared constitutional by the United States Supreme Court. Even should it be declared constitutional, it simply does not "get the job done." Therefore, the only possible complete answer is a federal marriage amendment. However, as discussed in Part VI, many of the proposed amendments do not get the job done right either.

For those on my side of this issue, it is time to invest our efforts in an amendment that will get the job done right. To come full circle: marriage matters. Half measures will not do. We must do what we can to secure the ratification of an amendment that wins a once-for-all victory over the three-pronged attack on marriage.

Marriage Matters: A Case For A Get-The-Job-Done-Right Federal Marriage Amendment, 83 NDLRev at 1360 (2007)

Isn't that "an attempt to persuade, to encourage the reader to take some sort of action"?

And... Three pronged attack? For those of you interested, the professor's three pronged attack can be summarized as follows: Lions and tigers and... bears.

Oh my!

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...
written by Will, July 22, 2008, 09:09 AM

I think its worth mentioning that the ND Law Review is indeed a difficult process and the students who attain editorial positions do have to work extremely hard to do so. Its further worth mentioning that the articles slated for the issue in question were selected by the Law Review Board of 2006, not the current board or the previous board.

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Haven't read it yet, but had the same initial impression...
written by Jay , July 22, 2008, 11:06 AM

Essentially...WTF? While I was reading the brief sylabus, I kept waiting for at least a "devil's advocate" article, but there was not a one. I'm sending mine back. The State pays for mine, they can haggle about the 10 bucks.

Maybe I'll drop a line about the issue to my peeps at Lewis and Clark Law in Oregon. Those hippies will have a stroke.

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Lions and Tigers and BEARS Oh my!
written by truenob, July 22, 2008, 12:07 PM

Maybe the professor could go along with Dorothy, scarecrow, tinman and the lion to see the wonderful wizard and just maybe the wizard can give him a brain too! Then the professor could mind his own damn business! OR maybe the wicked witches monkeys could get him in the poppy field and the witch and the professor could be married and they could live happily ever after in their castle in the West!

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The excerpt Nimrod wrote about.
written by Chet, July 22, 2008, 12:45 PM

Hadn't read it at the time, but here's the first couple paragraphs of Prof. Wardle's article:

"They called him Moishe the Beadle..."

With those words, Elie Wiesel begins Night, the powerful autobiographical account of how he, his family, and their entire Jewish community went from living freely in the small Hungarian town of Sighet, to incarceration, suffering, and death in terrible Nazi concentration camps during World War II. One of the Jews in the village knew of the imminent danger and tried to warn his neighbors. His name was Moishe the Beadle. In tribute to him, the Nobel-prize-honored Wiesel records Moishe's name in the first line of his book, as the first of all persons he mentions

[ ]

As Moishe had warned, the Jews in the peaceful village of Sighet were eventually rounded up and forced to live in a ghetto. They were then transported to concentration camps, where some were selected for immediate extermination, and others were brutally worked to death -- few survived.

As a Family Law professor concerned about the dangers of legalizing same-sex marriage and the related erosion of a culture of marriage and marital families, I sometimes feel like Moishe the Beadle.

Wardle, Lynn, The Attack On Marriage As The Union Of A Man And Woman, 83 NDLRev at pp 1365-66.

Wow.

Wardle's bio indicates he is a Professor of Law at the J. Reuben Clark Law School, Brigham Young University. The article, the bio indicates, is "based in part on a paper presented at the World Congress of Families IV in Warsaw, Poland on June 12, 2007."

The World Congress of Families was organized by one of the "Tinky Winky is gay" guys. For more on the World Congress, click here and then click on the "read more" hyperlinks at the end of each intro.

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...
written by Big Jake, July 22, 2008, 02:41 PM

Confusion!!!! Perhaps. It would seem to me that the Professor just does not recognize that he is not Moishe the Beadle, he and his ilk are the Nazis coming in the night to strip us of our basic rights ----the first step---then whatever they want. Or maybe he does get it. Gay marriage ----a threat to whom? Certainly not my family. Your family? Just what is it that threatens you? Is being gay a contagious illness? With all the consequences that go with being gay, just who would chose to be gay? And is it believed that those who are gay are constantly recruiting others to be gay? If the homophobes could find a moment of intellectual or emotional honesty, perhaps their fears are driven by a questioning of their own sexuality.

How is it that the state is their protection against some perceived threat? Apparently, they don't believe that their values are strong enough to stand on their own.

From my perspective, my values are threatened when the state becomes the police force for whomever seeks to obligate anyone to conform to their beliefs and "values". The genius in our system is that those whom we don't like or agree with are given "equal protection" under the law.

Marriage is a religious institution---I fully support that. Marriage as a civil institution if it is necessary at all, should deal with property rights, contracts, and children ---if they are present under the contractual arrangements. Those various religions can take whatever position as to gay marriage---what other religions do is of no consequence to me---Somewhere I remember that freedom of religion is a right under our constitution. And that freedom also extends to freedom from religion.

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I just threw up in my mouth
written by Deb, July 22, 2008, 03:12 PM

He's GOT to be effing kidding me.

A mormon is comparing himself to Moishe. That's just perfect. I'm sure Wiesel is proud.

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Somebody needs to respond to Will
written by David, July 22, 2008, 04:17 PM

You say the articles were selected by the 2006 editorial board, but the bio says the article is based upon a paper presented in June of 2007. The chronology doesn't work. Do you mean that they selected the topic in 2006?

Let's assume, for discussion's sake, the editorial board just picked the author and gave him a general topic and his topic conveniently coincided with something else he was working on for the World Congress of Families IV. Even if all of that is true, after the 2006 law review board was gone, subsequent law review board members received the draft manuscripts and had editorial responsibilities. When the author sent in an article that wasn't properly sourced, the outside articles editor and other editors, if awake and competent, had a duty to send it back to the author with a note asking for a citation to proper authority. When an author submits an article with a footnote citing as authority, for example, the Koran or Wikipedia or some other inappropriate or unreliable non-legal authority for a proffered legal proposition, the draft must be sent back as being "below the law review board's standards." This volume of the law review makes it appear as though there is no source for a legal proposition that does not meet the North Dakota Law Review boards' standards.

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Just for fun . . .
written by nimrod, July 23, 2008, 01:46 PM

go through Prof. Wardle's footnotes and mark the ones where the author cites to publications of Prof. Wardle, or manuscripts on file with Prof. Wardle. Then go back and read the text associated with the footnotes.

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I'm forced to pay for this?
written by spababe, July 23, 2008, 08:39 PM

I just got my copy when I had to leave on a business trip and won't be back until late in the month. My law reviw sitting on the kitchen counter. I can't believe that this is happening. Whose bright idea was this? Who thinks this is scholarly research? Me thinks something stinks here.

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Legal scholarship
written by nimrod, July 24, 2008, 01:33 PM

Perhaps legal scholarship in general has spun off into arcane intellectual musings by law faculty and law faculty wannabes, who seem to have tied their ties too tight. I wasn't on law review, but I don't think it's sour grapes. Articles by scholars locked up in their ivory towers and little or no connection to lawyers slogging away in the trenches of private practice in ND.

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Follow-up
written by Chet, July 31, 2008, 09:41 PM

As one might expect, the story in the Grand Forks Herald -- http://www.grandforksherald.co...d5532f4f69 -- doesn't mention where this discussion got started.

I get no love.

This is interesting: http://www.law.und.nodak.edu/N...Review.pdf

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it is a symposium...
written by To be fair--, August 02, 2008, 09:13 AM

Don't get me wrong--I find this entire issue completely offensive. But, my understanding is that the topic and articles were chosen by the 2006 Symposium editor and the articles were then worked on (edited) by the 2007 Symposium editor. While I think the articles from the right-wing authors were horrible, it was supposed to be a symposium and I'm guessing that it would have been a much more balanced issue had the liberal (and sane) authors turned in their articles.

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Follow-up
written by Chet, August 05, 2008, 07:02 AM

This story keeps getting mentioned by bloggers and others all around the country. Here are a few examples of where it's popped up: Here's an example. And another. And another. Another. One more. Another. And here. One more here. And one more. And a local one. Another one just down the road.

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Letter to Fargo Forum
written by Chet, August 06, 2008, 07:16 AM

Here's a great one from a state legislator...

Why was nobody speaking out and saying this is not right, this is homophobic propaganda intended to deliver a moralistic message, not advance a scholarly debate? The voices at the Law Review were silent.

The irony of the silence and the Wiesel reference is not lost on those who have taken basic history courses. Perhaps the author of the article is unfamiliar with the pink triangles the Nazis forced homosexuals to wear before torturing and murdering them alongside the Jews. In a battle cry to unite those like him persecuted for defending marriage against gays and lesbians and the evils of same-sex marriage, the author cites the poetry of a German pastor during World War ll to repeat the well-known phrase that by being silent, when they come for you there will be no one left to speak.

All of us need to speak out against this type of homophobic editorializing cloaked as scholarly writing. As a member of the North Dakota bar and a UND Law School graduate, I am disappointed and saddened that the response of the state bar and LeBel has been to minimize the matter, suggesting the student editors did their best to garner submissions representing diverse opinions, but they did not have the kind of luck getting that diversity of opinion as they would have liked.

Fargo Forum

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The problem
written by Chet, August 07, 2008, 08:32 AM

The problem with responding to right wingers is that there's usually no point in doing so. They never pay attention to what you say and only respond to mysterious arguments that they impose upon you; not on the arguments you actually made. Consider this excerpt from a letter to the editor in the Grand Forks Herald today:

We are members of the legal community in North Dakota, and we write to defend the Law Review?s decision to publish articles that may not square with the views of those who would like to destroy the concept of traditional marriage in this country. We find it remarkable that a student-run academic institution like the North Dakota Law Review, with the First Amendment right of free speech, is being attacked by certain lawyers for exercising that right.

Whether one agrees or disagrees with the viewpoints expressed in the scholarly articles published in the recent North Dakota Law Review journal, which defend traditional marriage as between a man and a woman, the North Dakota Law Review clearly has the right to publish those viewpoints and should not be attacked and chastised by members of the legal profession for having the courage to do so.

GF Herald

See, I admittedly haven't read everything that everyone has said or written questioning the law review, but I don't recall ever seeing someone argue that the law review didn't have the right to publish the articles it published. The arguments I HAVE heard include:

(1) that, contrary to the point made by the right-wingers, the law review (or most of it) wasn't "scholarly." If you don't understand what I'm saying, ask yourself this: "If you took out every citation to the Bible in the articles and replaced them with a citation to the Koran, would Ron Fischer and his right-wing friends have written their letter?" If your answer is "yes," then you should seriously consider giving up the crack.

(2) The point I've heard most people make is that all worthwhile "scholarly" work is either "peer reviewed" or "balanced" or both. This particular law review obviously was neither. Whether I agree with the articles in the law review or not, I would want all perspectives on the issue; not just the right-wing fundamentalist think-tanks and so-called "Christian" college professors' perspectives. In fact, people who agree with the arguments made by the people who wrote those articles would benefit from a lively debate in the same issue. Were there balance in the law review, those smart right-wing college professors could have dazzled the left-wingers with their brilliance, and likely converted some of them. I'm fairly certain there are people who could actually cite scholarly work that disagrees with much of what's in most of this particular law review. They should have been given an opportunity to write in the same issue, and -- despite the protestations of the various editors and the law school dean -- I don't think they were.

and

(3) Nobody (that I'm aware of) is saying the law review shouldn't have published anti-gay marriage articles. Nobody is saying the student-run organization should have been "censored." What I have seen people say -- and what I have said -- is that they should have provided (a) another perspective (since I think we all agree there is another perspective) and (b) some indication that the law review had and applied minimal standards for citeable authority. They did neither.

The right wingers who cry out about censorship are trying to make people think the critics are censors. The critics I've seen and heard from aren't censors. But that won't stop the right-wingers from falsely claiming they are. Rather than responding to the critics arguments, they've chosen to create new arguments that the other side HASN'T made, and then respond to those. It's a ridiculous way to argue things, but it's how typical right-wingers typically operate.

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