About two weeks ago, the Washington Post published yet another story about Judge Matthew Kacsmaryk. There were two primary claims. First, the Post charged that Kacsmaryk wrote an article for the Texas Review of Law & Politics (TROLP), but when he was under consideration for the federal bench, he asked the journal to take his name off the article. Second, the Post claimed that Kacsmaryk failed to disclose this article to the Senate, and this was a breach of ethical standards. As soon as I read this article, I knew both claims were either false, or at best, misleading.
TROLP accepts submissions, like most law reviews, but a substantial chunk of its book includes invited articles. That is, the journal asks an author to write on something. In other words, an offer is made before the article is actually written. I have published four articles in TROLP. Two of them were solicited. One was something I pitched largely on the basis of my blog posts and an amicus brief, which was accepted. For three articles, I was given a green-light to publish non-existent scholarship. This approach is fairly common for symposium issues of law reviews. TROLP publishes invited pieces in most issues. And based on my records, I never actually signed some sort of publication agreement or copyright assignment. At most, I received an email of approval from the journal. That's how TROLP works. Professors at the University of Texas, Austin, could have easily confirmed this regular process to the press.
Without knowing anything about Kacsmaryk's particular situation, I concluded with a high degree of confidence that either (a) TROLP invited lawyers from First Liberty to write on a specific topic or (b) lawyers from First Liberty pitched TROLP on writing a piece on a particular topic. In either case, there was nothing written when the article was accepted.
