Author's Response to the review of IN THE BALANCE

by Mark Tushnet. New York: W. W. Norton & Company, 2013. 352pp. Hardcover $28.95. ISBN 978-0-393-074344-7.


Author's Response by Mark Tushnet to the recent review of IN THE BALANCE. This response was first published on

I feel a little awkward in doing this, but in the end I think there may be some more general lessons to be learned from the episode, so: A revised review of "In the Balance" has been posted at the Law and Politics Book Review. It contains an Editor's Note: "When first posted, this review made several references to a lack of evidence and citations. Professor Tushnet notified the reviewer and the editor that IN THE BALANCE is properly sourced. This review has been corrected by removing language indicating otherwise. As editor, I apologize to Professor Tushnet for the mistake."

I appreciate the editor's effort, and his dilemma, but can't help but feeling that a stronger response to the reviewer's failure of professionalism was warranted. The reason lies in something like heuristics or the narrative account of jury constructions of facts: A reviewer who makes many notes in the margins mistakenly querying the absence of sources or asking for support (when the reviewer hasn't figured out that the review copy is an advance copy without the source notes) is likely to construct a view of the book as a whole that will affect the reviewer's reaction to specific arguments: With that mistaken mind-set, the reviewer finds some arguments weak or unconvincing; without it, the reviewer's reaction might have been (who knows?) more accepting. (The academics among readers might think of the lengths we go to to ensure that the initial impressions we have after reading the first page or two of an examination answer do not improperly influence our overall evaluations of the answers -- for example, when grading an exam with three essay questions, hiding from ourselves the grade we've given on the first question when we're reading the second.)

My own, of course not unbiased, view is that the review should have been "withdrawn," not of course in the sense that it would have been banished from the internet, but -- as with scientific papers shown to have been deeply flawed in scientific terms -- specifically withdrawn (and made unavailable through the Law and Politics Book Review's search function).

Copyright 2014 by the Author, Mark Tushnet.