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Friday, August 22, 2008

Obama's belatedly acknowledged case comment in the Harvard Law Review raises questions about his campaign's fundamental honesty

On June 23, 2008, prompted by what I thought was a poorly researched and incomplete article by Jeffrey Ressner and Ben Smith on the Politico website, I wrote a post entitled Why Didn't Obama Publish anything in the law journal he edited? The key passage from the Ressner and Smith article, at least for purposes of my own post, was this one:

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.

Although I have no first-hand knowledge of the Harvard Law Review's practices, either then or now, my own experiences as an editor at the Texas Law Review in the late 1970s made me intensely curious as to whether this statement was accurate, and if it was, how Obama had managed to become the president of the Harvard Law Review (a position elsewhere called editor-in-chief) without publishing anything of his own.

Now the same two reporters — albeit with their names in reverse order, if that means anything — have published an article entitled Exclusive: Obama's lost law review article. (Note to self: Next time I discover that I've screwed up big-time in a post, be sure to include the notation "Exclusive!" in the title of my correction.) From this article, it appears that the same Obama campaign spokesman, Ben LaBolt, has now confirmed that Obama authored a "case comment." It was published in volume 103 of the HRL, at page 823 of its January 1990 edition (which may or may not have actually been released during that month, since the actual publication dates of many law reviews sometimes run months behind their schedules). In it, Obama analyzed an Illinois Supreme Court case which held that a fetus has no tort rights to sue its mother for money damages for injuries sustained due to the mother's alleged negligence.

I've obtained a copy of the comment and I'll read it and the underlying case some time this weekend, after which I may or may not have substantive observations about them. For now, what's surprising — and frightening — to me is the Clintonesque word-parsing and dissembling that the Obama campaign has engaged in.

Even most lawyers — the large majority of whom manage to graduate from law school, pass the bar, and practice law without having been members or editors of student law reviews — probably don't distinguish closely between the various names that can be applied to what's published in those journals. And certainly the general public isn't likely to distinguish between faculty-written "articles" or student-written "case notes," "case comments," or simply "notes" — all of which are categories that the reviews sometimes use (albeit without a great deal of consistency from place to place or time to time).

In the parlance of TLR editors in the late 1970s, which is all I can speak to with authority, we considered a "case note" to be something very short, possibly no more than a couple of paragraphs, which described the ruling of a recent important appellate decision, without much analysis and without any reference to other cases or academic writing. It typically would have no footnotes or citations to anything but that one case. "Case comments" would still focus almost exclusively upon a single recent decision, but might be longer, include more analysis, and cite other cases or academic sources; that's how we'd have described what Obama apparently wrote. And "notes," in our usage, were wide-ranging pieces that might or might not have been inspired by one or more recent appellate decisions; they were intended to focus instead on a broad topic; and except for the fact that they were written by students and generally published in the middle of each printed journal issue, such "notes" were functionally indistinguishable, in scope and aspiration, from the "articles" that were written by faculty members (or, occasionally, judges or practitioners) and that tended to appear at the front of each printed journal issue. In earlier years, maintaining one's membership on the TLR required writing two case notes, or a case note and a case comment. But by the late 1970s, we'd abandoned those shorter pieces, and instead required each member to write at least one publishable-quality "note" to remain a member. And our student notes were attributed to their writers by name, in contrast to the Harvard tradition, which I presume is intended to imbue each student work with the institutional prestige of the entire journal.

For LaBolt and — by implication — his principal, Barack Obama, not to have been guilty of an intentional attempt at deception in their earlier communications, they must contend with a straight face that they believe the voting public to be intimately familiar with these sorts of distinctions, such that when they specifically denied that Obama had written and published any "articles" while president of the HLR, the voters would understand that to leave open the possibility that he'd written and published an unsigned "case comment" before he attained that official position. On this point, Smith and Ressner now write:

When Politico reporters working on a story about Obama's law review presidency earlier this year asked if he had written for the review, a spokesman responded accurately — but narrowly — that "as the president of the Law Review, Obama didn't write articles, he edited and reviewed them."

The case comment was published a month before he became president.

"Accurate"? At a minimum and at best for the campaign, LaBolt's earlier answer was nonresponsive to the question asked. And at a minimum and at best for the campaign, it was equally as misleading to the general public as was Bill Clinton's sworn insistence that "there is no sexual relationship" with Monica Lewinsky, a lie he later tried to defend by insisting that "It depends on what the meaning of 'is' is."

Even Obama apologist Noam Scheiber at The New Republic can't quite bring himself to swallow this dissembling:

I understand the impulse to sit on these old writings — you don't want every Jerome Corsi character out there combing over them for details they can grossly distort and package into a work of fiction. But at some point — and I think the Obama campaign got there in this case — the evasiveness gets out of proportion to the significance of the document and becomes a little self-defeating.

Only a true believer in The One could characterize his lying about his past — when the fact of his lying is capable of being proved both by documentary evidence and other witnesses with first-hand contradictory information — as only "a little self-defeating."

I have no hope or expectation that this particular attempted deception and concealment by the Obama campaign will affect many voters. Nor do I expect many voters to be swayed by the substance of what he's now finally admitted to having authored. But I remain hopeful, and cautiously optimistic, that the collective common sense of American voters may be swayed sufficiently at the margins by this and similar indicia of Obama's fundamental untrustworthiness. "Slick Barry" is at least as big a con man as "Slick Willie" ever was (and remains, for that matter).

Posted by Beldar at 09:02 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink


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(1) DRJ made the following comment | Aug 23, 2008 1:14:40 AM | Permalink

I'm glad you addressed this. I stumbled over it in my post because the reports I saw were all over the place - some even calling it an article, a case comment, and a note. Since I didn't have access to the source document in the HLR, I muddled around and called it a case comment (which I suspected it was) and an article.

Like you, I don't expect everyone to care about this but attorneys (especially those who have been on law review) should be obsessive-compulsive about things like this.

(2) L.N. Smithee made the following comment | Aug 23, 2008 5:22:50 AM | Permalink

Beldar, you wrote: "my own experiences as an editor at the Texas Law Review in the late 1970s made me intensely curious as to whether this statement was accurate, and if it was, how Obama had managed to become the president of the Harvard Law Review (a position elsewhere called editor-in-chief) without publishing anything of his own."

In 1990, when Obama was named chief of the Harvard Review, it was noted thusly in the New York Times by reporter Fox Butterfield:

The Harvard Law Review, generally considered the most prestigious in the country, elected the first black president in its 104-year history today. The job is considered the highest student position at Harvard Law School.

The new president of the Review is Barack Obama, a 28-year-old graduate of Columbia University who spent four years heading a community development program for poor blacks on Chicago’s South Side before enrolling in law school. His late father, Barack Obama, was a finance minister in Kenya and his mother, Ann Dunham, is an American anthropologist now doing fieldwork in Indonesia. Mr. Obama was born in Hawaii.


Change in Selection System

Mr. Obama was elected after a meeting of the review’s 80 editors that convened Sunday and lasted until early this morning, a participant said.

Until the 1970’s the editors were picked on the basis of grades, and the president of the Law Review was the student with the highest academic rank. Among these were Elliot L. Richardson, the former Attorney General, and Irwin Griswold, a dean of the Harvard Law School and Solicitor General under Presidents Lyndon B. Johnson and Richard M. Nixon.

That system came under attack in the 1970’s and was replaced by a program in which about half the editors are chosen for their grades and the other half are chosen by fellow students after a special writing competition. The new system, disputed when it began, was meant to help insure that minority students became editors of The Law Review.

Harvard, like a number of other top law schools, no longer ranks its law students for any purpose including a guide to recruiters.

(3) Roy Lofquist made the following comment | Aug 23, 2008 4:30:12 PM | Permalink

Dear Beldar,

I've been watching elections for a while - since 1952. It is my observation that undecided voters are more likely to make their decision based on dislike or distrust than any positive attraction. Once decided they rarely reconsider. Thus, although this affair will, as you contend, will have little measurable effect it is but one incident where a few decide. Over the course of a campaign it is cumulative. That's how elections are lost.


(4) A.W. made the following comment | Aug 25, 2008 8:39:58 AM | Permalink

Fyi, at Yale, we called a case note what you call a case comment, demonstrating that these terms are not terribly consistent.

On a similar, but slightly off-topic note, Obama's vote on the born alive bill is frankly evil. There is no other word for it. To say it is okay for a child to be born in the presence of a doctor and not provided every chance at survival, is evil. I wish more people would pay attention to that.

In general, I am one of those character voters. And the reason why is simple: the president will be able to do things without anyone knowing. character is the only thing that might prevent the abuse of power in that situation.

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