A Criminal Prosecution of a Book Review Editor?

a I confess that I know absolutely nothing about French criminal law, but I was shocked — and not in the Claude Rains way — to learn from Brian Leiter (and here) that a professor whose book was (somewhat) unfavorably reviewed on the website globallawbooks.org had filed a criminal libel charge in France against the book reviews editor of the European Journal of International Law, distinguished New York University law professor Joseph H.H. Weiler.  You can read the review here and Professor Weiler's editorial about the matter here.  As I understand this, Weiler refused to take down a review that the complainant thought was inaccurate.  So now a US-based professor who's trying to enforce well-established academic codes of conduct regarding book reviews is being prosecuted.  (Gilles Cuniberti points out in comments to Kevin Jon Heller's post over at Opinio juris, the complainant doesn't live in France and the review, as well as the book, was published in English.)

To his immense credit, Professor Weiler is going to the expense and hassle of fighting this.  It would be so much easier to capitulate to the bullying that is the prosecution, retract the review, and move on.  Or, I would think, just ignore the complaint.  Readers who know about international criminal law could enlighten me on this, but I'm guessing that a criminal court in another country only has authority over someone to the extent that the person is in that country, no?   Sure, they might try him in absentia, but in the unlikely circumstance they find him guilty, what punishment can they enforce? I suspect that if someone prosecuted me in another country for criminal libel, I'd just figure, I'll take my tourism dollars elsewhere and ignore the complaint.  But, this is about the principle of the matter and I applaud Weiler's fortitude.  Everyone who cares about academic standards and, of course, academic freedom, should applaud it as well.

I have only spent a few minutes with the book in controversy in our law library.  I did not spend enough time with it to formulate an intelligent opinion of its quality.  Weiler's editorial reprints a detailed and thoughtful email he sent to the book's author about the review; it's a fine defense of the review and analysis of the issues at stake.  It's worth reading just to see how he deftly analyzes the issues and — to my mind — fairly conclusively demonstrates that the review was reasonable.  The reviewer, Thomas Weigend of the University of Cologne, didn't think the book filled the gaps he saw in the literature.  He was hoping for a book that offered a "possible resolution of some of the 'hard questions' that have been left
open by the drafters of the legal instruments pertaining to the Court’s
operation."  Instead, he found the book was more of a rehash of procedure.  Perhaps some will find that useful; the reviewer did not see so much value in that.  He also noted "this exercise in rehashing the existing legal set-up is particularly
unproductive since a large part of the volume consists in a reprint of
the ICC Statute and its Rules of Procedure and Evidence…."  Nearly two hundred pages of the book appear to be devoted to the governing statute and the court's rules of procedure and evidence.  That may very well be a useful resource for some; the globallawbooks.org reviewer did not find that so useful.

Over the seven years I've been book review editor of Law and History Review, I've dealt with hundreds of reviews — most are quite positive, others are negative.  Occasionally authors are unhappy with the reviews they receive.  I understand this; authors spend lots of time with books.  In some cases, the book becomes a beloved family member.  Criticism is difficult — particularly when you think it unfair.  And book reviews matter — not, so much I've found for sales of books, but because tenure committees look at them.  So do lateral hiring committees.  My experience is that lateral committees look closely at reviews because they understand that the reviews are serious evaluations, not puff pieces written by friends or people who've been scared by threats of lawsuits or, even worse, criminal prosecutions.

Books can't easily be reduced from 300 pages (or in this case hundreds more pages than that) to 800 words, so reviews often focus on some particular aspect of a book. Usually, the reviews taken as a whole will give an accurate picture of the volume.  Most books, after all, have virtues for some readers and gaps for others.  Looking at a series of reviews usually gives a collective picture of the work's strengths and weaknesses.  As I've remarked in another context (n.56), opinions about even some of our most distinguished works of scholarship often vary widely.

Quibbling about reviews is not a great use of time; authors should be dealing with big picture ideas.  Focus on the next article or book and respond to the major criticisms of reviews in that next project.  But if you're going to respond, the proper place is in the journal that published the review, with a serious rebuttal.  Not a lawsuit.  Think letters to the editor in NYROB — now that's a good model for discussion of ideas and reviews you don't like.  If it weren't for Professor Weiler's fortitude, this criminal complaint could seriously damage the process of reviewing books.  I'm afraid that even with Professor Weiler's fortitude, the complaint will have a disturbing effect on book reviewers and also book review editors.   I should note that Professor Weiler offered the author of the book an opportunity to respond on the website; she didn't take him up on the offer.  A year later, he was staring down the barrel of a criminal complaint.  This is a  disturbing violation of academic norms of scholarly engagement.  This takes what should be a question that is resolved in the printed pages and on the web pages  of academic journals into the realm of a criminal court.

The process of reviewing relies on independent-minded, knowledgeable scholars giving frank evaluations of books.  Without that, we lose one of the few opportunities for serious engagement with each others' scholarship.  I don't mean to sound too melodramatic, but I think we're at a tipping point in academic book reviews.  If book review editors — not the reviewers, but the editors  — are going to be charged with a crime for standing by a review, what hope is there for serious engagement with ideas?

While I've often been the beneficiary of reviews that are kinder than I deserve, I know what it feels like to get a review that I perceive as unfair.   If memory serves me, a review of one of my books criticized me for failing to take into account a sixth circuit opinion.  The reviewer had the circuit confused; she meant a seventh circuit opinion.  And it was rather hard for me to take that opinion into consideration, because the book came out several months before the decision was issued.  However, I did discuss the district court opinion in the case, which had cited two of my articles!  Amusing, really.  I wasn't going to take up space in a journal responding to that review.

Professor Weiler's editorial lists things that we all might do to support his case.  One of them is to write him a letter of support.  I hope that you will take the time to do that.  But even more than that, I hope that the author of the book in this case withdraws her complaint.  That would be a most productive and positive step for us all.

(The opinions expressed here represent my personal views only.  They are not those of the editorial board of Law and History Review.)

Update as of March 1:  In addition to his comments on the post at opiniojuris linked to above, Gilles Cuniberti has an extended post on this at conflictoflaws.net