who gives a crap about harvard?

The right-wing zealot Eugene Volokh and the Federalist mouthpiece David Lat find fault with the work product of a liberal-led legal journal??? Shocking!

12:41, did you READ the excerpts from that case note?

I'm not a Republican and not a Federalist Society member, but I found it pretty atrocious.

The author of that article deserves to be scored with ginzu knives and peed on by a dozen people infected with superaids and staph infections for crimes against academia.

I am serious in advocating the death penalty for such stupidity, lest the author be permitted to procreate.

HLS = out of the top 10 based solely on their admission of this person

seriously, harvard joined the ranks of brown when it elected a woman to lead it. pretty soon loyola will be on top of harvard in the us news rankings.

Hard to believe this made it into a Harvard Law Review Case Comment (which is usually a technical, doctrinal analysis of a recent significant decision):

"One small child dies of starvation every five seconds. That child is one of nearly ten million people who die every year because of hunger. It would be hard for us to imagine watching a child die. In fact, if it were happening in front of us, most of us would do everything in our power to stop it. We must understand and confront the powerful psychological forces that allow us to put the face of this child out of our minds when we interpret constitutional language that purports to bind us to thinking seriously about life and liberty. Yet we live with this world, and we live with this Amendment. And we violate it every five seconds."

12:45, I agree it's atrocious. But it's one "leading cases" blurb. Hardly evidence that HLR is being "run into the ground" by a "cabal."

He/she feigns at social consciousness. Here's the hypocrisy:

He/she is spending over $40,000/year on a Harvard education, in addition to what he/she has already spent on undergrad! Essentially he/she is spoiling him/herself at the expense of those dying kids he/she writes about. If you really care, why not go to a cheap state school and send the difference to the an organization that feeds starving children? Or are you more concerned with getting the best educationb for yourself, while the kids starve. There is a generation of kids like this. They are kids who have grown up with silver spoons in thier mouths, and who love to feign a social conscience without sacrificing any of their own comforts. It's so easy to pretend you care about others when you have everything you need. This isn't to suggest that anyone who goes to an expensive school has had everything handed to them. But there is this kind of group out there. I actually have quite a few friends like this. At the very least, $40,000 plus/year seems wasteful in light of the author's expressed views.

This type of case comment wasn't allowed when Barak Obama was head of the HLR.

Um, idiots, scholarship is moving towards narratives and stories, and away from technical, doctrinal analysis. The very point is to weave stories into law to show the functional effect of laws.

But of course Federalists stuck in the 18th century trying to figure out what people long-dead actually meant, rather than deal with real world present-day problems, would not understand this.

It is a meaningless and juvenile rant lacking both cohesion and persuasive power. Basically, it sounds like the kid just threw together some stream-of-consciousness political thoughts (most of which are preposterous) and turned them in. And somehow, this junk got published.

Piling on this poor student is pretty distasteful. It's one thing to point out the comment isn't so helpful (like so many others). It is another to ridicule it as these supposedly grown-up bloggers are doing.

It's not piling on. It's preparing him/her for a career in law. ;)

It's fine if that is the direction scholarship is moving. That's super.
However, my understanding is that the purpose of these 'leading cases' comments is technical, doctrinal analysis of recent, important cases. That's the whole point of this kind of comment.

I'm the Articles Editor at a TTT and there is no way that we would publish that drivel.

This student chose to publish something in a public forum. He/she is opening him/herself up to ridicule if people think it is worthy of ridicule. It's not like people grabbed a page of a kid's diary and are mocking it publicly.

1:01, if you're implying that everyone who thinks this case comment is a disgrace is a Federalist, then count me as a Federalist (I never considered myself part of their ilk before...).

The note is beyond unhelpful; it's ridiculous and wrong as a matter of history and law. And the concern is more than one student; it's the number of staffers and board members who knowingly allowed this thing into print.

The real shame is that case notes are one of the few areas of legal scholarship of any potential use to actual practitioners. Or they were anyway.

12:41 - Prof. Dan Markel is a big-time liberal, and he wasn't a fan either. See the PrawfsBlawg post Lat links to.

Excerpt: "a very bizarre case comment, one that seems to be of little use to lawyers and little interest to scholars of punitive damages."

Here's the best quote (and by "best" I mean "worst"):
"The Fourteenth Amendment currently offers no protection to the 38,000 American citizens who die each year just by breathing our air. It should. The money in a corporate bank account is a constitutionally protected interest. If that money is threatened, the great forces of justice and courts and power and violence will come to its defense. Yet the Justices do not rush to the defense of the 400 million children who are chronically hungry. What has happened to their lives and their liberty? Why not protect the poor in third world countries? Why not have an amendment that said to them: your limbs will not be wearied, your children will not be malnourished, your homes will not be pillaged, polluted, and destroyed, and your people will not be murdered so that I may enjoy a jewel."

Now, it's not nice to ridicule people who shouldn't be expected to know any better: for example, if a 6th grade girl wrote this, then it wouldn't be nice to "pile on."

But here, a HLR editor wrote this garbage. He/she is expected to write at a much higher level, but didn't. Thus, it deserves to be ridiculed.

There's nothing especially wrong with the view itself. But as 12:58 points out... "Who are you to point the finger?" What are you doing, or what have you done? Very self-righteous. And to publish this as a scholarly article is just dumb.

And here I am thinking that most of the sloppy thinking, muddled idealogues, the kinds who are just all over the place with their statements/arguments, attended lesser law schools. Ouch.

Does no one recall when the same publication in Jan 2004 permitted the publication of a book note by a member of the *religious right* in favor of intelligent design that was widely decried as scholarly fraud? If not, see http://media.www.hlrecord.org/media/storage/paper609/news/2004/04/22/News/Law-Review.Book.Note.Attacked-669036.shtml.

1:16: To me the most deliciously ironic part is how the author effectively calls for a worldwide American empire under the U.S. Constitution. Awesome!

The comment might be reasonable enough as a comment to a blog post. What's objectionable is not the author's admittedly ridiculous point of view, but rather its inclusion in a journal that is supposed to be serious and scholarly.

A$$holes like the author of the article excerpted by Bernstein are a big reason why (we) liberals contend with the old "soft hearts=soft heads" accusation. I am embarrassed.

Harvard to TTT... How do editors publish this? How do attorneys/firms continue to subscribe to this? Where are the supervising professors? What the hell is social commentary doing in the middle of an otherwise boring, drab, technical, and not unmeritorious article? BTW LAT there should be a post on worst/most rediculous Law Journal articles, notes, etc. I would love to see if there are worse notes out there... and I can't imagine that there aren't.

HLR doesn't exactly "select" student pieces for publication. Each HLR editor is essentially entitled to publish a certain number of pieces, so long as a few very minimal standards are met and the piece goes through the editing process. There is a great difference between the pieces written by outside authors, which are generally the cream of the crop, and the student pieces, which may be good or bad since they go through no selection process.

This juvenile piece is an exception that proves the rule: given that HLR does not attempt to sift or control which student pieces it publishes, the quality of the student output is actually pretty high. Outliers like this are appropriately mocked, but hardly a reflection on the publication.

In fairness to liberalism (I identify as a conservative myself), the problem here wasn't left-leaning ideas, it was letting the most extreme fringes lead a project that has (or should have) more substance than political advocacy. I'm sure that if they'd rounded up the nuttiest Regent Law students, the problems would be the same.

I know that seems self-evident, but the implication in the post was that the political orientation of the radicals involved played a role in the slide of the HLR. I don't think it did.

There's nothing especially wrong with the view itself.

========================

Which is what, exactly? That the courts can somehow use the 14th Amendment to end world hunger? That starving children in the US should be able to sue Microsoft or Texaco for food money? That private property should enjoy no legal protections just because it takes a corporate form?

Thank you, 1:34. I was at HLS when HLR was being "run into the ground" by the Federalist "cabal" who pushed through the intellectually bankrupt *note* (not just a leading cases blurb) in favor of "intelligent design." A much bigger deal than this.

As commenters at Volokh and here have pointed out, once a case has been assigned to an editor for comment, its evaluation for publication is made solely on the basis of whether it clears some extremely low burden of technical quality. Publishing a comment is essentially a privilege of membership. As I understand it, pieces just aren't pulled for being full of left- or right-wing drivel.

It's fine to mock the author of the comment. And it's fine to mock HLR for their publication policy. But it's pretty absurd for Lat to pat himself on the back and say "I told you so," because the publication of this comment has absolutely nothing to do with Crespo's ideology or management style. Maybe he is running HLR into the ground, but the publication of this piece is not provative of that question.

"Um, idiots, scholarship is moving towards narratives and stories, and away from technical, doctrinal analysis. The very point is to weave stories into law to show the functional effect of laws."

Garbage and quite the opposite. Legal scholarship is moving toward social science research (as evidenced by the new Journal of Legal Studies) as serious scholars realize that student-directed storytelling (like this HLR article) disseminate little useful knowledge, despite their potential persuasiveness.

I don't think provative is a word. Also, lat is not the first one to comment that HLR is on its way down, and even several HLS professors will join in on that point. I was at HLS when Prof. Rosenburg went ballistic at the Review's decision to publish some crappy article about Habermas with a URL as the title. This publication doesn't really reflect poorly on the student, since everyone knows HLS is liberal-leaning and there are reasoned arguments as to the historical legacy of the 14th Amendment. The problem is that this article is published anonymously, not under the name of some acknowledged liberal scholar. It is published under the HLR name, in a spot typically reserved for "objective" review of new cases. When it is in fact clearly a polemic, one that looks like an over-the-top argument by a new-age college debater. It's sort of ridiculous that, whatever HLR's publication standards are, this anonymous piece was given the HLR imprimatur.

It IS a laughable train-wreck of a case comment, isn't it? I just wonder if it's going to appear on the author's CV...

-- ET!

I have to agree, narratives and stories have little place in legal scholarship. For the most part, I've come across them when authors are unable to support their arguments with either facts or law, which results in a poor article. They are also distrcating as hell.

Have any of you actually read the entire comment? Though I generally respect the analysis on The Volokh Conspiracy, Berstein just pasted the first and last paragraphs, which, admittedly, appeal more to emotion and ideology than to anything else. However, the substance of the comment is quite thought-provoking, literate, and worthy of publication. Here's an excerpt:

Because the Court now protects much of this corporate conduct, it may be forced to invalidate state action that is beneficial in the aggregate because it violates the Fourteenth Amendment "rights" of a certain (perhaps the only) group that the law recognizes. In a better legal world, the courts would have to balance affirmative demands of many different groups for state action by weighing the respective consequences to life, liberty, and property in the aggregate. Every law or legislative omission affects life and liberty - there are always tradeoffs. The Fourteenth Amendment must recognize this reality and embrace an affirmative obligation to consider the effects of potential action or inaction on all constituencies. Only then can the Amendment combat all forms of coercion. Instead, by turning the Fourteenth Amendment into an essentially negative right to protection from only the most obvious forms of direct government action, the Supreme Court has made government a mere neutral observer in any repeated societal interactions that have the properties of a zero-sum game, closing its eyes to many forms of coercion that are in reality just as harmful as more salient state action. Then, by further developing significant protections for only certain groups within this negative rights framework (indeed, by only conceptualizing some of society's many potential aggregations as protected entities and only some types of coercion as actionable harms), the Court has handicapped other interests in this competition, fostering even greater inequality.

I've heard that several profs have chosen offers from lower ranked law journals rather than accept at Harvahd Law Review. Apparently, the editors "edit-in" their biases.

No it isn't. Sorry.

also, Lat is a partisan hack.

You're a bunch of d-bags. Get over it. It's a journal. The editorial board gets to decide which articles they want to publish and which ones they dont; you didn't get on the law review, much less into HLS, so you don't get to decide. You don't like the articles? Then, don't read them.

3:31, it certainly is literate. I mean, the person obviously wrote in English that can be read. It just about stops there, though, mainly because the "non-substance" part of the comment completely ruins the substantive part.

It's kinda like how Hitler's good ideas were totally and utterly ruined by him being a giant jackass who wanted to kill everyone who wasn't white or German.

Can some HLR editor please post and tell us something about the moron who wrote this thing?

3:40 - I hope you didn't learn how to create absolutely atrocious analogies like that in law school. Also, see Godwin's Law: http://en.wikipedia.org/wiki/Godwin's_law

moron

You're a bunch of d-bags. Get over it. It's a journal. The editorial board gets to decide which articles they want to publish and which ones they dont; you didn't get on the law review, much less into HLS, so you don't get to decide. You don't like the articles? Then, don't read them.

Posted by: Anonymous | January 30, 2008 03:38 PM

-------
Anonymous, damn, that is a compelling argument. Let me rephrase it: "So what if HLR is shitty? Get over it. It's a journal. The editorial board gets to decide what articles they want to publish, even if they're shitty. You're not on HLR, much less in HLS, so you don't get to decide. If you don't like HLR's shittiness, then don't read it."

Silly Anonymous. HLR boasts to the entire legal world that it is a top law review (if not THE top law review), better than all other law reviews. If HLR does something stupid and publishes something shitty, then the rest of us can criticize HLR by saying, "come on, you can't claim to be a top law review, and publish something shitty like that."

"HLR boasts to the entire legal world that it is a top law review (if not THE top law review)"

ORLY? when or where has it ever claimed that?

"HLR boasts to the entire legal world that it is a top law review (if not THE top law review)"

ORLY? when or where has it ever claimed that?

"HLR boasts to the entire legal world that it is a top law review (if not THE top law review)"

Oh? Where or when did it make that claim?

IF YOU ARE NOT A MILITANT LIBERAL AT HLS AND A MEMBER OF THEIR LAW REVIEW THAN YOU HAVE NO RIGHT TO COMMENT!!!!!!!!!!!!!!!!!!

3:31 --

Really? Do all 2Ls at Harvard have standads that low? Just because an author is fluent and can express a point (somewhat) cogently does not mean that the point is meritorious.

"HLR boasts to the entire legal world that it is a top law review (if not THE top law review)"

Oh? Where or when did it make that claim?

Posted by: Anonymous | January 30, 2008 04:03 PM
----
HLS considers itself a top law school (if not THE top law school). Obviously the flagship of any law school is its main law review. Therefore, HLR would consider itself a top law review.

Or are you saying that HLR considers itself a TTT law review?

If the trend at Harvard is indeed to veer away from logic and reason and to instead embrace "narratives and stories" (for the sole purpose of trumping reason with emotion) then it's worse than I thought. They've gone whole hog for post-modern, anti-humanist, anti-rationalist and anti-enlightenment nonsense. It's the Oprah-fication of the law and will ultimately fail though, given its endowment, Harvard will putter on a few decades more - a rich dotard blissfully unaware that the whole world is laughing at it 'cause he has its shirt on backwards and can't remember to put his willy away when he's done peeing.

Read all 26 of the case comments. Almost all of them are extremely competently done and non-radical. There may be a bad apple here and there, but don't judge HLR just on the basis of one bad apple.

4:24 I'd say the trend at Harvard, and in the pages of the HLR, is exactly the opposite: toward law/econ and generally veering from the left toward the center. Just take a look at the last few years of faculty hires, and the difference between the student pieces now and those published in the mid-'80s. An example or two, especially a weird one like this, does not make a trend. An analysis of student pieces in the HLR would probably show this piece a true oddity, not only for its laugh-value, but even for its political valence and narrative methodology.

Somebody should really identify the author, or at least what this author plan to do with his or her career after law school. People should know where this person ends up.

this really sucks but is it all that much worse than many legal opinions by the law and econ fuhktards from chicago?

just curious....

HLS 2L @ 3:31:

Care to expand on why you think this constitutes legal analysis as opposed to social criticism?

"is it all that much worse than many legal opinions by the law and econ fuhktards from chicago?"

Why, yes. The law and econ types at least feign to appeal to reason and logic.

As a conservative and a federalist, I completely agree with the student's anaysis that the 14th has been used to support high power positions.

However, I completely disagree with the proposed solution. The 14th cannot be redisigned or reinterpreted in a way that advances the students agenda. It was designed to centralize power at the federal level, and centralization always gives benefit to high power.

The 14th performed has performed its function as designed.

I can't believe anyone is trying to defend this drivel. So weak.

I see in the article the same thing many have noted above: the subsumption of dispassionate analysis of legal principle in favor of advancement of a baldly partisan political argument. That it is done without the least apparent sense of restraint, irony or embarrassment indicates the author's inability, or refusal, to be dispassionate. Such lack of disinterest was once considered a fatal handicap with respect to publication of a law review article; indeed, to membership in the law review. Gone are the days, eh?

But more important is the shocking lack of intellectual rigor in the article. The author, like so many "progressives" before her, resorts to the push-pull of emotion at the starting gun. While this is in keeping with the time-honored practices of post-60's American leftists, collectivists and statists, one would have hoped a law review could have remained above such tactics.

So apparently the HLR now sees persuasion as its purpose, having abandoned analysis as hopelessly outdated and......"Federalist". (How in God's name did that become a pejorative?). And with persuasion its new mission, unfortunately emotional blackmail is an approved method of such persuasion.

How "de minimis" HLR has made itself.

co-sign 10:01

3:48,

point well made, but come on. how many online discussions were there in 1990?

stop showing off and making morons like myself actually check all these links.

This seems like an important controversy.

Each time someone posted a portion of that crap, I could only get about three lines in before I wanted to kill the author and then myself.

10:01, you seem to be implying that Federalist argument and analysis is "dispassionate." And with a straight face. Federalism has become ideology, which is nothing more than emotional "truths." One is wed to an ideology purely for emotional, rather than doctrinal, reasons. The sense of justice and what's "right." The power. The love. However you slice it, it comes down to emotional reasoning.

I do see a difference between the emotional reasoning involved in an ideological approach to legal analysis (such as federalism) and the inclusion of psychology as a factor in legal analysis. Pretending to divorce emotion/psychology from legal analysis is a fiction.

What's wrong with the case comment? The author is trying to make a point about 14th Amendment jurisprudence in a way that has some impact on the reader. Why is everyone enraged so easily over this?

I just read most of the HLR piece. It's not the most well structured analysis of a Supreme Court case - indeed, it rambles at points and fails to explore some of the reasoning in the dissents that lawyers, professors and serious law students might find interesting - but the author is not entirely full of hot air.

And if you morons would examine this case comment with a bit more objectivity and care, you'd see that there are interesting claims about the development of key doctrines in constitutional law. For example:

"From this flawed legal reasoning emerges Fourteenth Amendment
doctrine that we use to decide what conduct is directly or indirectly
the result of collective choices to act or to omit to act, and who can sue
for what kind of harm. But this doctrine boasts only superficial coherence.
The chief culprits are an incomplete notion of state action and
an arbitrary conceptual understanding of which harms can qualify for
constitutional protection."

I think the claim that 14th Amd jurisprudence has failed to develop a complete and defensible conception of state action is a very interesting claim in constitutional law.

The author fails utterly to develop this claim (and other promising arguments), that cannot be gainsaid. But to my mind, the editors of the HLR are the ones to blame (which is precisely Lat's point) and this author really doesn't deserve all the vitriol he/she is receiving in this thread and others.

11:16, what are you talking about? I doubt that even you know.

The two commenters who compared this note with the case comment defending intelligent design a few years ago couldn't possibly be more in the wrong. The piece on intelligent design made a constitutional argument to the effect that teaching intelligent design in public schools does not violate the Establishment Clause. Agree or disagree, but there is nothing particularly extreme or out of line with this kind of argument. It wasn't even arguing that intelligent design is correct on the merits (which would have been out of place in a legal publication).

The piece on punitive damages, by contrast, doesn't even attempt to make a legal argument. It should not have been published as it is. It's just a rant about how ridiculous it is that U.S. courts and particularly the Supreme Court don't enforce the author's radical-left view of justice. Even if you can find one or two paragraphs in there that look like legal analysis, this is a pretty poor defense of the piece.

The author is clearly more clever than you think. I bet reading it made a number of conservatives rethink their position on abortion.

Look, this piece is awesome. It is a minor case comment, but now the whole legal community is blogging about it and even this board is having a discussion about rationality and the proper form of legal scholarship, instead of how much those Skadden fascists are paying in taxes on their lockstep bonuses this year.

I know law school taught you that logic good, emotion bad, but empathy is actually more effective when you are dealing with real people.

This piece is not awesome. The fact that people are blogging about it is an entirely neutral observation. What people are saying is the key. In the case of this piece, it's mostly bad things. I agree with you that challenging the dominant paridigm (in legal scholarship and in general) is a good thing, but this crap just reinforces it.

"I know law school taught you that logic good, emotion bad, but empathy is actually more effective when you are dealing with real people."

6:20 - I often run into "real people" on the Metro or at a bar who have a copy of the HLR with them. They're usually just perusing for, you know, HLR' take on whether the 14th Amendment should be used to disgorge corporate profits, or other similar legal theories of interest to "real people."

So it's true: Harvard Law will take anyone with a 180 LSAT, even if they're a twit who spend their entire undergraduate career reading postmodernist lit crit shit and critical race/gender/underwater basketweaving theory.

And remember folks, HLR is just one flower in the bouquet of assholes that comes up with new editions of the Bluebook. And now we know why.

(And knowing is half the battle!)

Using right wing blogs to back up your right wing ideology doesnt add any credibility to your argument Lat.

I wouldn't have written it the way it was written (and the author does deserve criticism for that), but it seems people are trying to attack a policy position based on one bad author, without looking at how the Sup Ct has actually been acting against ordinary people.

Yeah, because Lat is such a right-wing idealogue. Are you serious?

You libs crack me up. The guy is gay and runs a wesbite that is basically a scandal sheet. He posed for years under a (female) pseudonym so he could run an even more scandalous site and talk about the judicial "hotties."

But wait a minute ... he is criticizing a piece of left-wing garbage that barely qualifies as "scholarship." It MUST be because Lat is a right-wing hack. It can't possibly be that this article is a piece of shit that should never have been published. Boy, you sure have convinced me.

The HLR editors are out of control.

I am appalled that anyone thinks our economic choices have moral consequences. What crap! Anyway, who cares about moral consequences except sissies and freaks?

according to another HLR scandal thread, Alec Karakatsanis wrote this case comment. Bye bye anonymity.

http://abovethelaw.com/2008/05/hlr_in_toilet_flush_flush.php#comment-600515

"Note" to Phil:

Do a 360 around a statue before you make it the centerpiece of a Note.

You can find this and other academic procedures in the Cambridge Intermediate High School student handbook.

Cheers,
Successful Statue Reader