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Barack Obama and the Harvard Law Review

Monday, June 23, 2008 1:35 PM - By David Lat

Barack Obama small Senator Barack Hussein Obama Above the Law blog.JPGGiven our twin obsessions with the Harvard Law Review and Barack Obama, we are compelled to draw your attention to this interesting article, from the Politico (via a commenter). Summarizing Obama’s tenure as HLR president, Jeffrey Ressner and Ben Smith write:

The eight dense volumes produced during his time in charge there — 2,083 pages in all — show the Review to have been a decidedly liberal institution, albeit one in transition as its focus on race and gender was contested by liberals and conservatives alike. Under his tenure, the Review published calls to expand the powers of women, African-Americans and the elderly to sue for discrimination.

But Obama, who this March referred to “identity politics” as “an enormous distraction,” was not so easily pinned down. He published a searing attack on affirmative action, written by a former Reagan administration official. And when, in an unusual move, he selected a young woman from a non-Ivy League law school to fill one of the Review’s most prestigious slots, she produced an essay focused on individual responsibilities as much as on liberties, criticizing both conservative judges and feminist scholars.

“I was very surprised and honored to receive the invitation, of course, as I was teaching at Maryland Law School at the time, and the Foreword typically is extended to more established scholars at ‘top’ law schools,” Robin West, now a professor and associate dean at Georgetown Law Center, wrote in an e-mail to Politico.

For more on Professor West and her Harvard Law Review foreword, see the Volokh Conspiracy, where David Bernstein describes Professor West as “an inspired choice.”

Discussion continues, after the jump.

From later on in the Politico piece:

“He was as much a traditionalist as anything,” recalled Susan Estrich, the USC School of Law professor who served as Michael Dukakis’ campaign manager in 1988 — and who broke ground as the first female president of the Harvard Law Review 14 years before Obama took the reins. “It was a big deal that he got the presidency. He was selected because of merit, and he believed in the institution and its history. There are some years [at the Review] that are radical and others that are traditional.”

(Obama’s year was fairly traditional, it seems. The year just ended may have been among the more radical. See here.)

Why should we care about what goes on at the Harvard Law Review?

In Obama’s time, as it is today, the Harvard Law Review was one of the most important and distinguished legal publications in the world. Founded in 1887, it is the rare self-supporting legal publication compiled and edited completely by students, typically those attending their second and third year at the prestigious school.

And it churns out future leaders like Barack Obama, which is another reason the Review merits scrutiny.

The anonymity of student contributions to the Harvard Law Review, such as Notes and Case Comments, sometimes leads to speculation about who wrote what. In Obama’s case, however, his campaign denies that he wrote anything for the HLR that year:

One thing Obama did not do while with the review was publish any of his own work. Campaign spokesman Ben LaBolt said Obama didn’t write any articles for the Review, though his two semesters at the helm did produce a wide range of edited case analyses and unsigned “notes” from Harvard students.

Estrich believes that Obama must have had something published that year, even if his campaign says otherwise. “They probably don’t want [to] have you [reporters] going back” to examine the Review.

Interesting speculation, Professor Estrich.

Not everyone is enamored of Obama’s HLR presidency:

In recent months, Obama’s stewardship of the Review has generated a small dust-up in the blogosphere, with some critics insisting that “Obama’s Vol. 104 is the least-cited volume of the Harvard Law Review in the last 20 years.” The claim has methodological problems, however, including the fact that Obama oversaw only the first four issues of that volume. Review veterans said he would have an increasing influence — as well as a final read — over the latter half of Volume 103, then a diminishing influence over the second half of Volume 104, produced after he left the presidency.

For more on that citation-count controversy, see TaxProf Blog (and links collected therein).

What’s the overarching takeaway from reviewing Obama’s leadership of the Harvard Law Review? Here’s how the Politico piece concludes:

Obama’s time on the review mirrored other aspects of his life. Even in the staunchly liberal milieus in which he has spent his entire adult life, Obama has managed to lead without leaving a clear ideological stamp, and to respect — and even at times to embrace — opposing views. To his critics, that’s a sign of a lack of core beliefs. To his admirers, it’s the root of his appeal.

“To understand what someone else is trying to say isn’t just an editorial skill,” said [Tenth Circuit Judge Michael] McConnell. “It’s a life skill.”

Obama kept Law Review balanced [Politico]

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