Dan Browder, the student editor of the Montana Law Review, has responded to the brouhaha over a republished article by David DeWolf and Casey Luskin. He has given me permission to publish his response in full, without any editing, and that is what I will do below the fold.

MEMORANDUM To Whom It May Concern From: Daniel Browder, Co-Editor-in-Chief Montana Law Review Date: 12/19/06 RE: Brayton press release concerning DeWolf, West, and Luskin

I am the editor quoted on Brayton's blog. I believe that DeWolf, Luskin, and West acted ethically in their dealings with me and with the Montana Law Review.

Here is what happened. I asked Montana Law School Professor Robert Natelson--and other faculty--to ask friends and colleagues about possible articles for publication in the MLR. David DeWolf sent Natelson a draft article critical of the Kitzmiller v. Dover School Board decision. On July 6, 2006 Natelson forwarded the article to me, noting that it was material "that earlier had been in a book directed in a different market." On July 23, I emailed DeWolf, writing that we would consider publishing his article if we were able to solicit a response article from a reputable scholar. DeWolf recommended Irons. I began talking to DeWolf and Irons about a published dialogue about Kitzmiller.

I did not realize that the DeWolf article was nearly identical to the previously published Traipsing book when Irons pointed that out to me in an email dated August 3. Although I had received Natelson's email quoted above, I had forgotten the relevant comment once I began communicating directly with DeWolf. Perhaps I would have paid more attention if I had been told that the article was practically identical to a previously published book, but who knows. Until I asked, DeWolf did not mention to me directly that his article was not original, he had not sent me the book upon which the article was based, and the article itself did not cite or mention the previously published work. On the other hand, our communications during late July concerned finding an opposing article with a favorable view of Kitzmiller, and we hadn't yet begun to discuss the substance of his article. It's reasonable to assume that the subject simply hadn't come up yet and that DeWolf thought that I understood the article was previously published. Irons had not received Natelson's email, so he had received no notice that the material had previously been published.

On August 7, I emailed DeWolf and asked whether the article was original. On August 8, I sent another email to Irons, DeWolf, West, and Luskin in which I proposed a format for the dialogue, and again asked about the DeWolf article's originality. A portion of that email was quoted in the Brayton blog press release. Although law reviews may republish articles from time to time, I was only interested in an original article. I intended to drop the project if it entailed republishing Traipsing.

DeWolf answered my August 8 email the same day, writing that the article he had sent me through Natelson was a "slightly edited" version of the Traipsing book. In light of Irons's participation in a published dialogue, DeWolf proposed that he and his coauthors write an original article. At this point the MLR had still not accepted either article and no author agreements had been signed.

After several more rounds of negotiation, I eventually offered to publish DeWolf's and Irons's articles subject to various conditions all around, including my requirement that DeWolf, West, and Luskin write a fully original article. DeWolf et al. agreed to that term, rewrote the article, and subsequently signed our author agreement. Irons wrote a reply. We hope that both articles will appear in the Winter 2007 (vol. 68 no. 1) edition of the Montana Law Review.

From my point of view, DeWolf, West, and Luskin acted responsibly and ethically. There were several communication glitches along the way (including my own), but that is to be expected.

Seems a plausible explanation to me. I did ask him one follow up question, which I hope he will answer. His emails to Irons indicate that their author agreement requires one to certify that the paper is an original work. I asked him if DeWolf had signed such an agreement prior to being told that they had to rewrite the article because it was not original. I will of course publish whatever answer I receive.

As I said, this seems like a plausible explanation. Natelson tells DeWolf that it's okay that it's a slightly edited version of already published material, DeWolf submits it on the assumption that it's okay, the editor doesn't realize until Irons tells him that it's not merely slightly edited but a virtual carbon copy of a previously published book and then he insists on changes that DeWolf didn't think he needed to make. It makes the behavior of virtually everyone understandable given what they knew (except perhaps Natelson, in his odd behavior here yesterday but not in his actions leading up to that).

Update: Mr. Browder wrote back and informs me that Prof. DeWolf did not sign the agreement verifying originality until after the article had been rewritten. I'd say that pretty much resolves everyone of any unethical conduct in this situation and brings this little tempest in a teapot to an anti-climactic conclusion.