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