The Volokh Conspiracy

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President Obama's new Harvard Law Review article


The Harvard Law Review generally comes out on the first Thursday of the month, and this month's has an interesting lead article: "The President's Role in Advancing Criminal Justice Reform," by Barack Obama. There's a lot in the article, which is 56 pages with 317 footnotes, and of course I agree with a lot of it. But for now I have three questions—one substantive and two procedural.

1: Could we hear more about the limits of the president's role? The article makes occasional references to "important structural and prudential constraints on how the President can directly influence criminal enforcement," but most of the article is about things the president has done or would like to see done. At the same time, some of us have wondered why President Obama—who was not always shy about unilateral executive action—did not do even more. The author of this piece probably has unique insights into that question, which it would be great to get candid scholarly analysis of.

2: Did he write it, and should we care? Unlike with his recent JAMA article, I did not see a note about "Additional Contributions" of research assistance or other outside feedback, but I do not know whether the president had time to type up the whole thing himself.

My colleague Eric Posner writes:

Meanwhile, others suggest that we should think of this more like a political speech or a Supreme Court opinion, where the nominal author is understood to have presided over some kind of writing team. I do think Eric is right that a law-professor author is expected to write his or her own stuff, but I don't know whether our norms hold presidents or others to a different standard.

As Dan Epps responds:

(As a side note, I assume the same questions could be raised about Sen. Ted Cruz's 2015 law review article, "The Obama Administration's Unprecedented Lawlessness.")

3: Why is the president of the United States publishing in a law review? I am a defender of law reviews against their many detractors, but who is the target audience for this article and what is the point of writing it? Is the hope that the 56-page article will be widely read by lawyers and other non-academic elites? Or is the hope to nudge the direction of scholarly discourse in a slightly different direction? Or is it just that the president is hoping to return to academia after his current job is over, and was so eager that he couldn't wait?

This one puzzles me the most, although I am always happy to see people reading and writing law review articles.

UPDATE: This story suggests that it was not originally President Obama's idea, though it does not answer all of the questions:

"[W]ith the hugely important conversation about criminal justice that's going on-not just on law school campuses, but all over the country right now-we were thinking about pieces that could be particularly powerful in addressing that topic," Law Review president Michael Zuckerman '10 explained. "And given that the President and his Administration have made addressing criminal justice a focus, plus the President's own background as a lawyer, law professor, and community organizer, this idea jumped out at us as something that could be really special. So even though we knew it was a huge long shot, we reached out to Dean Minow-who is also the Chair of our Board of Trustees-and thanks to her, we were able to approach the White House and begin a conversation."