Barack and Rob’s outline was remarkably substantive and provides significant insight into how more than two years’ worth of almost daily debates had shaped their thinking about a great many social and political questions. The first chapter, on the failures of the American Left, cited a “Lost Faith in Democratic Discourse” and targeted “Rudderless Pragmatism—a refusal to articulate principles that can guide debate and create lasting coalitions.” Echoing John McKnight, it also indicted an “Expertist Ethos,” an excessive “belief that the judiciary is the principal arena for social change,” and an “insistence on bureaucratic centralization.” There was also “A Failure to Understand and Use the Market” as “a tool for decentralization of power” and as “a potential promoter of equality.”
The failures of the American Right began with its “lack of faith in collective action,” its belief that “we are all self-contained units,” and a “lack of faith in the possibility of progress for the masses.” An “institutional fetishism” led to a “failure to see the variety of ways that ‘civil’ society in fact acts to structure oppression, hegemony of the dominant culture, etc. (the classic example being the assumptions underpinning Plessy).” Third was a “Failure to Recognize the Market’s Destructive Power,” most especially “persistent underinvestment in . . . human capital.”
“The Shared Assumptions of the Left and the Right” included a “rigid dichotomy” between individuals and society. While the Right embraced the “self-interested individual,” the Left “insists that groups once formed (along lines of class, gender, race, etc.) then serve as the static, self-interested actors” of pluralist theory. While “the Right and the Left become captive to their categories,” the “proposition of this paper” would be “that even as we abandon the notion of the public/private distinction,” a belief that society “must act to promote social change” must be embraced at the same time that “the private sphere . . . is understood as a precious social construct through which we decentralize power.” Underlying everything was the belief that “the vital mechanism by which such a vision operates is deliberation—principled democratic debate, about things, and not just words.”
The first of their topical chapters, on plant closings, would confront how the “complete mobility of capital” could, as it had in Southeast Chicago, lead to the “destruction of community and family” while also emphasizing how “corporate managerialism cannot take into account these externalities.” Long-term solutions would require “worker participation and ownership” and “restructuring the corporate form” due to “the costs of defining corporations as persons under constitutional analysis.”
In the second chapter, on race, they would address “the limits of the assimilationist vision” that had reigned during “the Golden Days of Civil Rights.” It would acknowledge “the incompatibility of group redress with received constitutional understandings” and how “the language of rights” is “too blunt a tool to capture the complexity of social relations” because “rights don’t require compromise or mutual understanding.” It would also argue that “the equation of racial liberation with government centralization, bureaucracy, judicial intervention” means ignoring “the fundamental strengths of the black community—self-reliance, religious cohesion, community support, family.” This chapter would propose “Terms for the New Debate” that would shift “from rights to responsibilities” and also involve “a reexamination of integration.” A “potential restructuring of political dialogue around leveraging resources into black communities because they are poor” would not ignore how “industrial development that means jobs for blacks may also mean environmental problems that hit blacks hardest.”
The final topical chapter, on public education, would confront how “the legacy of racism and skewed resource distribution promotes [the] idea that only a single, unified school system run by bureaucratic experts and controlled from the top can ensure equality of opportunity.” The entire outline was informed by Barack’s experiences in Chicago, and in the education context, Barack and Rob rued the exit of the “wealthiest parents” and “the most informed, participatory parents and innovative teachers” from declining public school systems. A further threat was vouchers, because “having the best parents exit . . . further erodes [a] basic commitment to public education.” The way forward would entail “community ownership of schools” and “a recognition that schools are inseparable from communities.” It would also require “a consensus built around equalization of resources, not equalization of teaching.”
Barack and Rob seemed to have their conclusions already well in hand. “The rigid choice between individual and state has spawned a variety of false dichotomies that continue to plague the existing political debate,” with neither side “capturing the reality of the problems facing today’s society.” In addition, “the importance of democratic dialogue” would be “the critical medium through which this transformation will take place. The quality of our deliberation determines the extent to which we can simultaneously maintain our faith in individual development, idiosyncrasy, and our faith in our capacity to act collectively.” In a concluding note to Martha Minow, Barack and Rob added that “we are still in the process of making some choices about how to boil down the structure of the book idea into the paper. We suspect that . . . we may not be able to do everything outlined here. For example, we may deal with only two examples, rather than three.”50
On November 20, three deeply committed 2Ls took the lead in organizing the most audacious student protest yet when, in the name of the HLS Coalition for Civil Rights, they filed a lawsuit in state court alleging Harvard Law School had personally harmed them by not hiring a more diverse faculty. Almost simultaneously, Harvard-Radcliffe Alumni/ae Against Apartheid (HRAAA), a five-year-old group that had already elected four of its candidates, including world-famous South African archbishop Desmond Tutu, to six-year terms on the university’s Board of Overseers, tried to recruit three more well-known names to run in the upcoming 1991 alumni election. When several “famous people” declined, the group asked Obama to be a candidate, and after thinking about it for forty-eight hours, he agreed. Joining him on the HRAAA’s slate would be well-known free speech advocate Nadine Strossen and prominent education critic Jonathan Kozol.
On Friday morning, December 7, Barack’s 3L basketball buddy Frank Harper was on the Boston subway heading to Harvard Square when he saw a front-page Boston Globe headline: “Recent Parolee Is Charged in Assault-Weapon Killing.” The story reported that three people had been shot, one fatally, in Boston’s Dorchester neighborhood by a forty-year-old gunman wielding an AK-47 assault rifle. Just twenty-two days earlier, the killer had been released on parole after serving almost the entire previous fourteen years in Massachusetts state prisons, including Walpole. The slayer was Ronald A. X. Stokes, organizer of the Walpole All-Stars, against whom Frank and Barack had competed just a year earlier. Stokes’s early 1990 assault on a prison guard—far from his first—should have blocked his release, but this time multiple convictions for the Dorchester shooting would keep him in prison until his death in 2010.
Barack faced only one in-class final exam, for Fried’s Fed Courts course, before he flew to Honolulu, where Michelle Robinson again joined him for Christmas. But Barack had to return to Cambridge by New Year’s Day because the law school’s three-week winter term classes began on January 2. Most 3Ls met their “professional responsibility” requirement by taking a legal ethics course titled Legal Profession, and Barack, Rob, and Gina Torielli, their friend from Section III, enrolled in a winter term section of that course taught by Jeffrey Kobrick, a veteran Boston legal-services attorney who was now a full-time “visiting professor from practice.” It met every weekday morning for three hours, and Kobrick used Andrew Kaufman’s Problems in Professional Responsibility, 3rd ed., as his core text. Legal Profession addressed real-world “ethical and moral dilemmas” encountered by attorneys.
One centerpiece of Kobrick’s class was an
ABC News documentary, The Shooting of Big Man: Anatomy of a Criminal Case, first broadcast in 1979 and produced in part by a 1972 Harvard Law grad who had worked as a public defender in Seattle. The film had created a national controversy among public defenders because it showed attorney David Allen coaching his client Jack Jones on what he should say when he was testifying in his trial for the shooting of Raymond “Big Man” Collins in a Seattle flophouse. Jones was acquitted, but some fellow public defenders accused Allen of “unethical conduct.” The film ended with Harvard professor Charles Nesson—whom Obama had had for Evidence a year earlier—saying Allen had not been “coaching” Jones, but simply helping his client testify “as effectively as he possibly can.”
On the first day of class, Kobrick recognized Barack from earlier press coverage, and he was pleasantly surprised when the Review’s president attended every single day. “He would not speak in every class, but when he spoke he had something to say,” Kobrick recalled, and “everybody would listen.” The day that Kobrick showed an excerpt from Big Man, Obama “spoke last. He spoke after everyone else,” and “to a person, nobody defended the Seattle public defender” before Obama did. “They all thought he was coaching the witness too much, and then Barack spoke, very forcefully, in disagreement,” and at some length. “‘I don’t agree,’” Kobrick recounted Barack saying. “‘First of all, they got his story out of him initially without giving him any leading questions at all. They just asked him what happened.’”
Barack “was extremely specific,” Kobrick recalled, arguing that Jones “did not speak the language of an all-white jury.” Without Allen’s firm instructions about how to describe what had happened, “the guy would have been toast,” Obama stated. On the last Friday in January, Kobrick’s two-part, eight-hour take-home exam limited each answer to sixteen hundred words. Kobrick’s second question, concerning a welfare recipient living in public housing who faced a criminal charge that threatened both those benefits, must have sounded familiar to anyone who had spent time in Altgeld Gardens.51
Obama’s term as president of the Law Review was almost over as Kobrick’s class ended. By early January, the Review’s February issue had gone to the printer, but its one article, “Fair Driving: Gender and Race Discrimination in Retail Car Negotiations,” by Northwestern University law professor Ian Ayres, was already the subject of New York Times and Chicago Tribune stories plus a nationwide Associated Press one. Within the Review, Ayres’s work had been a topic of dispute because even its most enthusiastic Articles Office proponent, Scott Siff, acknowledged “there wasn’t so much law in it” and “the methodology wasn’t that good.”
Siff had argued successfully that Ayres’s “very interesting, provocative analysis” met his “New York Times test for the articles,” and there was no question that the article was the Review’s “highest-profile piece” during Barack’s presidency. The Times headline—“White Men Get Better Deals on Cars, Study Finds”—attracted attention, but Ayres’s broader argument, that federal civil rights laws still did not adequately protect people of color and women from discriminatory treatment, was actually based upon just 165 faux sales negotiations at Chicagoland automobile dealerships. Obama told Erwin Griswold that Ayres’s article “is a nice change of pace from our more typical theoretical fare,” but Griswold was decidedly underwhelmed, calling it “not . . . exactly a blockbuster.” Griswold did praise the Review’s overall content, telling Obama that “your volume has been an excellent one.”
The Times also reported that an enterprising 3L had produced a 1991 “Black Men of Harvard Law School” calendar, archly noting that “so intense was the competition” for inclusion “that even Barack Obama,” president of the Review, “did not make the cut,” although his friends Ken Mack and David Hill did. Some classmates wondered whether Barack’s virtual absence from student diversity protests explained his omission.
Inside the offices of the Review, Obama’s final weeks were taken up by multiple controversies and a heavy editing load. One angry debate concerned who among the 3L editors would get the slots for individual notes in the year’s four remaining issues. Obama had named Anne Toker to the masthead as a supervising editor without Anne’s knowing the unwritten rule that SEs, as editors of their fellow students’ work, were not supposed to publish notes, and a nasty editors’ meeting took place before Toker’s inclusion in the April issue was affirmed. Susan Freiwald remembered that as usual, “Barack was in the background,” not taking any clear position, and he took the same stance at a subsequent full-body meeting that debated whether the word “black” would or would not be capitalized in an upcoming article.
Dorothy Roberts’s manuscript on pregnant women who were drug abusers had originally used a capital B, but by January, tensions between the EEs and many colleagues were pervasive. Conservative EE Adam Charnes explained, “We viewed ourselves as the guardians of the traditions of the Review,” and no one took that mission of rigid adherence to The Bluebook’s rules more seriously than Jim Chen. “He loved The Bluebook the way evangelicals love the Bible,” Brad Berenson explained. But Chen often altered passages that authors believed had been settled earlier in the editing process, “and some authors would go ballistic.” In the case of “black,” Lori-Christina Webb and Roberts’s other editors had sent the article forward with an uppercase B, and then the EEs made the b lowercase. A lengthy Review-wide debate ensued. “The arguments were so abstract and passionate,” Webb remembered, yet by this time in the year, a good many 3Ls and 2Ls were distancing themselves from the Review’s endless controversies. To 3L Mike Guzman, “the combination of it being presumptuous and pointless” made “all the fighting” seem like a waste of everyone’s time. Guzman viewed Barack as “a good conciliator,” and during the most bitter arguments, “I don’t remember him ever saying a word.” In the argument over “black,” Obama once again commented, “Just remember, folks. Nobody reads it.”
Three years later, Barack cited the B-in-Black controversy as a notable law school memory. “One of the most frustrating things about student life was I guess what’s called political correctness,” he explained. “Young people tend to jump with both feet on a whole lot of symbolic issues,” and “when I was the manager of the Law Review at Harvard, I had a young black woman come in to me and complain vehemently about the fact that the word ‘black’ was not capitalized in an article.” A white editor said that since white was not capitalized, neither should black. The dispute was “a matter of symbols, not substance,” Barack explained, and thus had not interested him.
As Barack’s year as president came to an end, conservatives, leftists, and everyone agreed that managing editor Tom Perrelli had been the Review’s MVP. Perrelli was “the figure for us,” 2L Sean Lev remembered, and fellow 2L Jon Molot recalled that “everybody loved Tom.” EE Adam Charnes praised him as “the nicest guy in the world” as well as the person most responsible for keeping the Review on schedule. Perrelli remembered sitting in Barack’s “little cave of an office” going over edits, but most other editors knew that “if you wanted to go talk to Barack or hang around with Barack, you had to go out on the front porch, because he liked to smoke,” Mike Guzman recalled. “He was almost always on the stoop, smoking,” 2L Charlie Robb agreed. Lori-Christina Webb, one of the Review’s few other smokers, joined Barack “on the steps of Gannett House, smoking Marlboros. . . . That is, in my memory, where he’s fixed, not in the midst of these battles.”
Bruce Spiva recalled that Barack “tried to step back from a lot of the day-to-day rancor,” and 2L Howard Ullman felt Gannett House “was not a terribly pleasant place to be because it was so fractious.” Many editors used the exact same phrase—“above the fray”—to characterize Barack’s reaction to the Review’s battles. “He did not seem ever stressed,” Anne Toker remembered, and Adam Charnes thought Barack’s strategy was to “let people argue a lot and see if they work it out,” although if he had been more assertive, “it probably would have saved hours and hou
rs” of time on multiple occasions. One EE recalled having a spirited disagreement with another editor. “We each independently went to Barack, and he said to me, ‘I agree with you,’ and he told the other guy, ‘I agree with you.’” Then the two continued their dispute and were “outside in front of Gannett House arguing when Barack came out. . . . We called him over and said, ‘You said.’” An embarrassed Obama realized he had been caught. As 2L Jeff Hoberman explained about another big argument, “everybody kind of thought Barack was on their side.”
Grade-on Chris Sipe, a 3L, believed “you really saw him gaining in confidence as the year went by,” that Barack “was much more confident at the end of the year than at the beginning.” By January, most 3Ls believed the 2L editors had made the Review even more contentious. Anne Toker felt that “the first year we were all on Review had a nicer feel to it for me than the second year.” Adam Charnes agreed: “There was more of a hard-edged tone on both sides than there was the previous year” and “it got pretty nasty at times.” Most editors thought this was due to the different temperaments of the 3L and 2L conservatives. Liberal Scott Siff thought the 3L conservatives were “a fairly impressive bunch,” while the 2L conservatives were “much more yappy.” With Brad Berenson being “the George Will of the group,” as Charlie Robb put it, the “more polished” 3Ls maintained the respect of those who opposed them. Liberal 3L Michael Cohen remembered “a lot of unpleasantness with the 2L class,” because the 2L conservatives were “an abrasive bunch” who could be “really loud and kind of mean-spirited,” particularly “in the way they talked to people.”
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