pageok
pageok
pageok
Obama's Case Note:

I just read the piece, and it is as calm and fairly uncontroversial as most people say.

Pretending for a moment that we actually care about the article as an article, my one suggestion would have been to pay a bit more attention to the risk of collusive lawsuits: Since the fetus-mother lawsuit would usually make sense only if the mother has liability insurance -- as many people do, just under their auto insurance or homeowner's insurance policies -- there would be very great temptation in an injury case for the mother to overstate her possible negligence, so the fetus gets more money from the insurance company. I imagine many a person, even one who is ordinarily quite ethical, might find this temptation hard to resist in a case such as this one, when it's a matter of helping one's family (especially when the family will be facing huge medical or supplemental care bills as a result of the injury) at the expense of a faceless insurance company. The article mentions the insurance factor as a reason to worry about generally higher premiums for pregnant women, but not the collusive lawsuit concern.

But this is a minor criticism. For what it is, the article is quite good -- well-written and well-reasoned. It's nothing really innovative or valuable, but a short case note is a poor medium for saying anything really innovative or valuable. That's one reason I urge students to write not short case notes but rather longer articles about broader issues (using several specific cases as illustration). But the Harvard Law Review has its own traditions on this -- and I guess in this one highly unusual scenario, a case note really has made a splash.

jukeboxgrad (mail):
I urge students to write not short case notes but rather longer articles about broader issues (using several specific cases as illustration). But the Harvard Law Review has its own traditions on this


Probably you know this, and are intending to imply this, but maybe it would be good to make explicitly clear what OK mentioned:

HLR does not have signed student works, for Presidents or others.


In other words, the absence of a signed work (in the form of one or more "longer articles about broader issues") by Obama, while he was at HLS, is not his fault (as various people have implied in various places). It's a matter of HLR policy.
8.22.2008 11:46am
Eugene Volokh (www):
jukeboxgrad: The Harvard Law Review policy is indeed that student-written works are unsigned, but Harvard Law Review does let students write somewhat longer Notes on broader issues, though these too remain unsigned. This is not to fault Obama for choosing to write just the very short piece, but just to respond to your comment.
8.22.2008 11:50am
Paul Horwitz (mail):
Jukeboxgrad, with respect, I'm not sure your response is to the point. Harvard does not have signed student works, but it does have unsigned student works of precisely the kind that Eugene mentions: notes (and book notes), as opposed to case comments. Note that Eugene didn't say he wanted longer signed student works, only that he wanted longer and more substantive works than case comments, signed or otherwise. I don't care that Obama didn't write a longer work; I'm just pointing out that, unless specific rules prohibited the president of the review from writing a work, or from publishing a note written in second year during his presidency, it certainly was a possibility, although the work would, in theory, be anonymous.

I would also add, chiming in with other posts by Eugene and with something I tell my students regularly, that your own school's law review is not the only game in town. Obama could, of course, have written something and sought to publish it, under his own name, in any one of a couple of hundred outside journals. I hardly think the apparent fact that he didn't is cause for criticism, and one might ask whether it would be good etiquette for the president of a law review to publish his student work elsewhere. But, again, it was possible.
8.22.2008 11:54am
jukeboxgrad (mail):
eugene:

Harvard Law Review does let students write somewhat longer Notes on broader issues, though these too remain unsigned.


Thanks for the quick response. That's helpful, I didn't know. I was incorrectly assuming that the kind of longer piece you were talking about would have been in the form of a signed article. So Obama could have indeed written a longer piece, although it still would have been unsigned.

This is not to fault Obama for choosing to write just the very short piece


I understand and appreciate that you are not trying to "fault" him in that way, but I predict that someone, somewhere is going to do exactly that.
8.22.2008 12:08pm
jukeboxgrad (mail):
paul:

I'm not sure your response is to the point.


You're right that I misunderstood Eugene. My mistake. I appreciate his further explanation, and yours.

one might ask whether it would be good etiquette for the president of a law review to publish his student work elsewhere


This is an interesting point that you raise. I wonder how often this has actually happened, i.e., that an HLR president has published his signed work elsewhere while at HLR. I'm guessing this is rare. It would be interesting to see examples.
8.22.2008 12:08pm
Dave N (mail):
I would think it is very rare for a law student at ANY law school to write something for a law review at another law school. The ones who are interested in writing are generally trying to write for their own publications (I personally had both my case note and my case comment published).

As an editor of my law school's secondary law reviews (one is a highly specialized journal on natural resource and environmental law), I do not remember a single submission from a current law student at another school.
8.22.2008 12:27pm
Observer:
Powerline had a good post about what the Note really says about Obama, particularly in light of his recent interview with Rick Warren (this is not quite as favorable to him as Professor Volokh makes it appear).
8.22.2008 12:29pm
alkali (mail):
... a short case note is a poor medium for saying anything really innovative or valuable.

This may be true at least as as regards "saying anything innovative," and it's certainly true, so far as I can tell, that no one gets an academic position on the basis of case notes.

But case notes do serve the valuable and unique function of telling a court, with substantially less turnaround than a full article, whether it reached the right result. Practitioners are not going to write pieces for state and local bar journals on how Judge So-and-so's recent opinion really screwed up the doctrine or reached a result that will lead to perverse consequences. Law reviews used to serve that function; they don't so much these days, and that's unfortunate.
8.22.2008 12:40pm
Happyshooter:
Why did he hide it?
8.22.2008 1:45pm
trad and anon:
Why did he hide it?

Because it's not a particularly exceptional piece, and so doesn't do anything to help the case for his election. The only effect of releasing it is to allow the GOP to nitpick it. That necessarily puts Obama on the defensive and deflects the focus of the campaign from things like attacking McCain for being out of touch with ordinary Americans.
8.22.2008 1:58pm
cathyf:
It seems to me that Obama's actions while on law review mostly confirm that he didn't have academic ambitions. Which is quite consistent with everyone's story that his UC instructor position was not something that he sought out.

Someone (might have been here at the Conspiracy) once made a claim to the effect that while staff writings are anonymous, the graduating students who are applying for clerkships and who are thinking about trying to become law professors claim their writings and list them on their CVs and resumes. If so, then the obvious conclusion for Obama failing to claim credit for his legal writings is that Obama had no clerkship nor academic plans.
8.22.2008 3:03pm
DCTenor1 (www):

I would think it is very rare for a law student at ANY law school to write something for a law review at another law school. ... I do not remember a single submission from a current law student at another school.


Rare, yes, but I'm surprised you did not get a single law student submissions from other schools. I guess I'm one of the exceptions to the rule -- as a student at Georgetown, I read Volokh's "Academic Legal Writing" book and turned my in-class note into an article that got published at another school's specialty journal. (Click my web site information for the SSRN page.) Then again, I wasn't on a journal at Georgetown; if I had been, the temptation would have been just to try to publish there.

Also: I love Eugene's warning about the risk of collusive lawsuits. That man is a walking law review article idea generating machine!
8.22.2008 3:11pm
MQuinn:

Powerline had a good post about what the Note really says about Obama, particularly in light of his recent interview with Rick Warren (this is not quite as favorable to him as Professor Volokh makes it appear).


Powerline? Really? Imagine that! I thought that Powerline was a objective forum for political analysis, not a far right-wing, Obama-bashing blog. I am surprised that Powerline would be critical of Obama's piece!
8.22.2008 3:18pm
MQuinn:

I would think it is very rare for a law student at ANY law school to write something for a law review at another law school. ... I do not remember a single submission from a current law student at another school.


My experience is probably colored by the fact that I do not attend a top tier school (and therefore we are more likely to receive student-written works from other schools), but we frequently receive such student written works from other schools. The typical profile is a 3L whose comment is very good but was not published by the 3L's school's law review.

I hate it when people make back-to-back posts, and now I am guilty of the same! Apologies.
8.22.2008 3:25pm
ejo:
so, it's an okay note but nothing really groundbreaking. isn't Obama's awe inspiring brilliance and membership on the HLR one of the linchpins of why we should be humbled to be in his presence and vote for him? isn't it what makes him perhaps the most intelligent presidential candidate ever?
8.22.2008 3:46pm
Eli Rabett (www):
Cathyf raises an interesting issue

It seems to me that Obama's actions while on law review mostly confirm that he didn't have academic ambitions. Which is quite consistent with everyone's story that his UC instructor position was not something that he sought out.


So why, we ask, did he take the position at the University of Chicago? The simple answer may be money. He had a really low income as a community organizer and law school loans to pay off. (Obama only really started to make money in the past couple of years when his books became best sellers and he and his wife have said that they were paying off student loans until three or four years ago)
8.22.2008 5:00pm
jukeboxgrad (mail):
observer:

Powerline had a good post


Those words are enough to make me laugh. Power Line is reliably dishonest. This has been documented many times. One example is here.
8.22.2008 10:23pm
jukeboxgrad (mail):
happy:

Why did he hide it?


That's not a fair description of what he did. Some discussion on this point is in the other thread, here.
8.22.2008 10:23pm
jukeboxgrad (mail):
cathy:

Someone (might have been here at the Conspiracy) once made a claim to the effect that while staff writings are anonymous, the graduating students who are applying for clerkships and who are thinking about trying to become law professors claim their writings and list them on their CVs and resumes


Yes, that claim has been made here. If I looked around for a few minutes I bet I could find it. But although I have asked several times, I have never seen another example of this actually happening, that is, an author of an unsigned HLR note taking credit for it. I speculated on a reason for this here.
8.22.2008 10:23pm
David M. Nieporent (www):
But although I have asked several times, I have never seen another example of this actually happening, that is, an author of an unsigned HLR note taking credit for it.
Well, this isn't HLR, but Orin published an unsigned case comment in the HJLPP, and it's on his c.v.
8.23.2008 3:38pm
jukeboxgrad (mail):
What I said here about the other examples also applies to this example.
8.23.2008 8:47pm