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COLUMNISTS
TODAY'S STORIES
22.08.2008
More Unearthings: Obama Law Review Edition

Over at the Politico, Ben Smith and Jeffrey Ressner have done some good work chasing down the case comment Obama wrote in his Harvard Law Review days:

The six-page summary, tucked into the third volume of the year's Harvard Law Review, considers the charged, if peripheral, question of whether fetuses should be able to file lawsuits against their mothers. Obama's answer, like most courts': No. He wrote approvingly of an Illinois Supreme Court ruling that the unborn cannot sue their mothers for negligence, and he suggested that allowing fetuses to sue would violate the mother's rights and could, perversely, cause her to take more risks with her pregnancy.

The subject matter took Obama to the treacherous political landscape of reproductive rights, and - unlike many student authors - he dived eagerly into the policy implications of the court decision. His article acknowledged a public interest in the health of the fetus, but also seemed to demonstrate his continuing commitment to abortion rights, and suggested that the government may have more important concerns than "ensuring that any particular fetus is born."

The temperate legal language doesn't display the rhetorical heights that run through his memoir, published a few years later, but provides insight into his support for abortion rights and expanded social services.

"[T]he case raises the broader policy and constitutional considerations that argue against using civil liability to control the behavior of pregnant women," Obama wrote of Stallman vs. Youngquist.

And he concluded the article with a flourish: "Expanded access to prenatal education and heath care facilities will far more likely serve the very real state interest in preventing increasing numbers of children from being born in to lives of pain and despair."

I'm sure this piece will annoy those commenters who complained about my more-is-better position when we chewed over Obama's missing senior thesis earlier this summer, but I do think the case comment provides some marginally useful insight into Obama's way of working through tough issues. And that the document reflects pretty well on him generally.

Also interesting is the way the campaign handled the case comment--some close to the opposite of "more-is-better":

Obama has never mentioned his law review piece, a demurral that's part of his campaign's broader pattern of rarely volunteering information or documents about the candidate, even when relatively innocuous. 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. ...

The Obama campaign swiftly confirmed Obama's authorship of the fetal rights article Thursday after a source told Politico he'd written it. The campaign also provided a statement on Harvard Law Review letterhead confirming that the unsigned piece was Obama's - the only record of the anonymous authors is kept in the office of the Review president - and that records showed it was the only piece he'd written for the Review.

"Like most second-year law students on the Harvard Law Review, Senator Obama wrote an unsigned student case comment that summarized a recent decision by a state or lower federal court. The piece analyzed a case in which a mother was sued by her child for injuries caused by the mother's negligent driving during her pregnancy. Senator Obama concluded that, in such cases, the Illinois Supreme Court was correct not to allow lawsuits by children against their mothers," said Obama spokesman Ben LaBolt in an email. "He wrote that the best way to protect the health of fetuses was to provide prenatal education and health care to pregnant women - issues he remains committed to today and which he has worked to advance as a legislator and in this campaign."

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.

--Noam Scheiber 

Posted: Friday, August 22, 2008 11:58 AM with 4 comment(s)

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aharris61 said:

Noam,

Please read Jason's post about how the McCain campaign has successfully turned Obama's popularity into a character indictment, then re-think your criticism of Obama's campaign for not being helpful about stuff he wrote in law school.  Come on, the piece is well-reasoned, well-written and nuanced.  But the headline is "Obama Opposed Civil Rights for the Unborn in Law Review Article".  And the Hagee/Rove characterizations will be substantially coarser.  As reassuring as the article may be to folks already inclined toward Obama, it will be used very effectively to get the folks who might otherwise stay home to go out and vote for McCain.

August 22, 2008 12:56 PM

GSpinks said:

I have to agree that "...the evasiveness gets out of proportion to the significance of the document and becomes a little self-defeating." The problem I have is that tomfoolery like J Corsi never becomes "out of proportion" or "self-defeating", and yet individuals like Corsi thrive on esoteric banalities such as this opinion while spinning their own versions of reality from whole cloth. All we've managed here is a slightly deeper look at Obama's opinion on one court ruling, and 2 metric tons of kindling from which every conspiracy theorist is going to derive new lines of tripe.

August 22, 2008 1:06 PM

michael said:

"the evasiveness gets out of proportion to the significance of the document and becomes a little self-defeating."

Sez who? Jerome Corsi and Sean (BillO, Coulter?) I did not, do not and will not attach 'significance' to the doc. Feeding those monsters always fails...evading is akin to starving them. It's worth a shot.

Jeeze, I hope there isn't a quiz in late October...I'm screwed.

August 22, 2008 1:24 PM

icarusr said:

One of the major papers I wrote in law school: "A feminist analysis of the Dune Chronicles".  My major paper was on public policy exceptions to surrogate motherhood contracts (they were quite novel back then).  I would NOT want either paper to ever see the light of day, and I am quite pleased that both were rejected for publication (because of, and I quote, "departure from feminist analysis orthodoxy" - a man writing on feminist theory: not a good thing, as Martha would say).  My paper (this one got published; no feminist analysis involved) on the first Persian Gulf war, now, that's a beaut!

August 22, 2008 4:32 PM