Monday, August 04, 2008


Yesterday I was talking with a friend of mine who used to teach law at the University of North Dakota (UND) before moving on to Florida (not a bad move).

Anyway, she was telling me about how it seemed that a group of right wing fundamentalist types from around the country had apparently pretty much taken over the North Dakota Law Review. At least, that what a number of North Dakota think lawyers after receiving the latest issue. And that's what I think after checking things out.

It's an interesting story.

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.

In the case of the latest issue of the North Dakota Law Review none of the above is true.

Here's a list of the titles from the front cover of the ND Law Review in question:

Griswold and The Defense Of Traditional Marriage: Bradley P. Jacob

Custody and Parenting By Persons Other Than Biological Parents: When Non-Traditional Family Law Collides With The Constitution: Gary A. Debele

Does the Family Have a Future?: William C. Duncan

Marriage Matters: A Case For A Get-The-Job-Done-Right Federal Marriage Amendment: Steven W. Fitschen

The Attack On Marriage As The Union Of A Man And Woman: Lynn D. Wardle

The Questions Raised By Lawrence: Marriage, The Supreme Court and A Written Constitution: Richard G. Wilkins and John Nielsen

Until now no one suspected that UND's Law School was so interested in the whole traditional marriage issue. The truth is that it isn't really heavy on the mind of law students at UND.

But the authors of the above articles (and their homophobic friends) sure are. Chet at the blog site NORTHDECODER reports how he turned to page 1307 of the Law Review, and found the following:

"First, God ordained heterosexual marriage from the beginning of human history."

I'd like to see the footnote on that one.

The author cites as his source for this Genesis 2:24, I Kings 11:3 and, of course, Deuteronomy 24:1. He also notes Matthew 19:3-18.

So now we know which human history we're talking about here.

The author of that submission by the way is Steven W. Fitschen who is a Research Professor of Law at Regent University School of Law.

Regent University School of Law, hmm, you're thinking "have I heard that mentioned somewhere"? Well, if you listen to the Seven Hundred Club, you probably have. Seven Hundred Club host and noted nut Pat Robertson founded the school.

Prof. Fitschen also serves as the President of the National Legal Foundation. The National Legal Foundation is a Christian" constitutional litigation firm and policy think tank committed to restoring America's Biblical foundations.

Another submission in the ND Law Review comes from a Prof. Lynn D. Wardle. Wardle is a Professor of Law at the J. Reuben Clark Law School, Brigham Young University.

Prof Wardle's article "The Attack on Marriage as the Union of a Man and a Woman" 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 article compares the Holocaust to the "global movement to legalize same-sex marriage."

That is obscene.

Another author William C. Duncan is with The Marriage Law Foundation (MLF) based at the Columbus School of Law of the Catholic University of America. The MLF describes itself as is a charitable, non-profit organization which provides legal resources to defend and protect marriage.

Associate Professor, Regent University School of Law, Bradley P. Jacob is another submitter. Jacob was previously Provost and Dean at the Patrick Henry College, Purcellville, Virginia (1998-2000) which was billed as a “a training ground for Christian political advocates.” At the Regent University Law School web site they have this to say about the Prof. "God has used his career in wonderful, exciting ways, beginning in a big-firm law practice and including years as a religious liberty lawyer, in Christian ministry leadership, and in Christian higher education." Jacob, says the website, "...considers himself successful when his students leave Regent as highly educated lawyers committed to impacting the world for the Kingdom of Christ."

What difference you ask does it make what is published in the Law Review up in North Dakota?

Well, for one thing as our friend Chet writes, "... fundamentalists can cite ...the North Dakota Law Review as secondary legal support for their ... homophobic rants."

Anyway, the University of North Dakota Law Review is not supposed to be some right wing Christian rag.

There has been enough of an uproar over the whole thing that that Paul LeBel, dean of the University of North Dakota School of Law, posted a letter on the school's Web site defending the issue. The Dean claimed the journal's editorial board issued a public call for papers and personally solicited prospective authors to contribute, but "only a few authors accepted the invitation to be part of this volume." He added: "I am confident that the Law Review continues to be committed to presenting diverse viewpoints on such important topics, and remains willing to include perspectives critical of those expressed in the current volume."

Anyone who knows anything about law reviews (which really isn't too many of us) knows his excuse for what happened with this issue is nonsensical.

This is best explained at the blog site A STITCH IN HASTE which is written by an attorney:

"Utter nonsense. Law reviews, like all academic journals, have absolute as well as relative standards. Before you even reach the question of “Which submissions are the best?” comes the precedent question of “Which submissions haven’t we tossed in the trash because they were hopelessly worthless gobbledygook?”'

And have these people never heard of a “call for papers”? As anyone even vaguely familiar with SSRN or Larry Solum’s Legal Theory Blog knows, the legal academy is teeming with draft articles — serious, scholarly, non-partisan articles — desperately in search of journals to edit and publish them. If nothing else, the journal could have scrapped the symposium issue altogether and run a collection of student notes or even a “best of” edition."

This disgrace was some combination of apathy by the faculty, fear of reprisal by the students and conspiracy by the bigots. The result is two-fold: (1) What was likely a perfectly good law review is forever tarnished. (2) The bigots now have yet another opportunity to lie about how “scholarly research shows…”'

Now I know folks at the UND School of Law and the people I'm acquainted with there are not of the ilk that put this out.

Where was everyone while this issue was being put together though, I wonder?

I want to end with something from the blog IMPERFECT DELIGHT.
"It should be a disgrace for a professional organization to link gay marriage to bestiality, Nazism, and ethnic cleansing and every citizen, no matter how they feel about gay marriage, should be outraged that the North Dakota Law Review was used as a forum for hate speech."

To contact the North Dakota Law Review:

North Dakota Law ReviewUniversity of North DakotaSchool of LawP.O. Box 9003Grand Forks, ND

Editor in Chief: (701) 777-2272Law Review Office: (701) 777-2941

The following is from the Grand Forks, North Dakota Herald.

Legal community in uproar over N.D. Law Review issue
Janell Cole

BISMARCK — Some North Dakota attorneys are outraged over the latest North Dakota Law Review, saying a scholarly publication was simply hijacked by national religious right activists bent on stopping gay marriage.

One, Fargo family law attorney Mike Gjesdahl, accuses the Law Review in a widely distributed e-mail of “passing off editorializing and theological perspective as academic work . . . (and) bringing shame upon us.”

Another, Tom Tuntland, Mandan, N.D., pledged to “chip in money, time and support” for an action to counter the issue, such as publishing a special issue.

“This is a law review that’s supposed to be a scholarly journal,” he said in an interview. “It’s nowhere near scholarly. By publishing those with an ax to grind, he said, North Dakota’s publication becomes a tool that gives them license to spread their beliefs.

By Wednesday, lawyers’ protests had become so passionate and widespread that UND Law School Dean Paul LeBel posted a disclaimer on the school’s Web site assuring the legal community that “the university and the School of Law are welcoming and inclusive educational communities.”

The Law Review is published quarterly by students at the UND Law School and is the official journal of the State Bar Association of North Dakota. Its latest issue, Volume 83, No. 4, is a symposium issue — that is, a collection of articles on one topic — on family law. It was published about two weeks ago.

“I was appalled to see almost the entire issue authored by a very narrow, biased and distorted view of the law,” wrote Grand Forks attorney Mary Seaworth to the state bar’s executive director, William Neumann. “To publish such a biased issue appears to be a serious error of judgment.”

Guest articles

Five of the six guest articles are by authors who are affiliated with church-based law schools and other “organizations (that) share a common thread in their view towards marriage and family,” Seaworth wrote.

The article “Does the Family Have a Future” is by William C. Duncan, director of the Marriage Law Foundation, whose mission is, in part, to “aid lawyers tasked with defending man/woman marriage and to file amicus briefs on behalf of groups and individuals also intent on preserving that vital social institution.”

In another, “The Attack on Marriage as the Union of A Man and A Woman,” author Lynn D. Wardale compares himself and his defense of traditional marriage to a Hungarian Jew who warned Elie Wiesel’s hometown of the coming Nazi Holocaust. Wardle is a professor at Brigham Young University.

Neumann and Law Review faculty adviser Kathryn Rand defended the issue, saying that the authors who were published were the only ones who answered an invitation to submit.

They said the bar association and UND faculty can’t exercise influence over or veto articles because it is the students’ publication.

“They made the best decisions they could under the circumstances,” Rand said. “It’s fair to say they were disappointed with the submissions they received. They were looking for a broad range of perspectives, not just one or the other.”

Rand and Neumann urged their colleagues in the bar to remember this is just one issue in a long line of Law Reviews, and more will be written on the unsettled issue of marriage and family. The students had a deadline to meet, they said.


Last year’s Law Review symposium editor, Patrick Dixon, said he and others on the 2007-08 editorial board were left to deal with the articles that had been submitted based on the call for submissions put out by his predecessor in the 2006-07 school year.

“It wasn’t supposed to be an issue about gay marriage,” he said. “And everybody wrote about gay marriage.”

Dixon said some people who originally submitted plans to turn in articles that would have widened the perspective didn’t produce.

“It was disappointing,” Dixon said. “The issue as conceived was not this.” He said the student editors asked the authors for many changes in the articles to make them more appropriate.

Bismarck family law practitioner Anne Summers believes the issue was doomed from the start because the announcement calling for articles was poorly distributed and “full of code words, ‘traditional family,’ etc.,” she said, — “that invite exactly what they got.”

She said she and other family law practitioners in the state never received the invitation to submit, which was posted on the Law Review’s Web site.

The 2006-07 Law Review symposium editor, Jared Rigby, couldn’t be reached for comment. A phone number for him in Grand Forks has been disconnected.

Janell Cole writes for Forum Communications Co., which owns the Herald.

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