Earlier this month, the Harvard Law Review published a student note from its most recent issue entitled “‘As the Legislature Has Prescribed’: Removing Presidential Elections from the Anderson-Burdick Framework.” Following this dry-even-by-law-review-standards title are several thousand words arguing that as a matter of constitutional law, free and fair presidential elections are more or less optional. The Constitution’s text, the author writes, “would seem to convey virtually unlimited authority to the states in determining how presidential electors are chosen, regardless of the wishes of the voting public.”
Against this purported historical backdrop, the author argues that judges should adopt a more “hands-off approach” to modern conflicts over state laws that affect voting rights, which are characterized as “partisan bickering” that courts are ill-suited to resolve. Although the note acknowledges that such a shift would entail “risks for democracy,” it concludes that “it is nonetheless required as a matter of textual fidelity.”
As with all student writing in the Harvard Law Review, the note is unsigned. It might have gone unnoticed, too, had HLR’s official Twitter account not helpfully omitted much of the legal jargon from a promotional tweet on Saturday afternoon. “Free and fair presidential elections are a cornerstone of American democracy, but are they required by the Constitution?” it asked. “This Note says no.” Under its preferred approach, it added, states would even retain discretion over whether to hold presidential elections at all.
As you might expect, this little thought exercise earned its fair share of criticism. The most recent election was marred by the losing candidate’s dogged insistence that nefarious forces had robbed him of victory. Since then, legislatures in Republican-controlled states have championed this narrative, pushing a blizzard of voter suppression bills designed to make the next lost election a little easier for their preferred candidate to win. In context, this note comes off as less esoteric scholarship than part of manufactured consent for eroding democracy, laundered through one of legal education’s most prestigious brands.
Its author is Alexander Guerin, a former HLR editor who is now clerking for Judge Jerry Smith, a Reagan appointee on the U.S. Court of Appeals for the Fifth Circuit. In an email exchange, Guerin characterized the note’s conclusions as “a lot less exciting than people realize.” “At the risk of sounding a bit flippant, I think it’s tough to argue that Anderson-Burdick makes a significant difference in whether the United States is a democracy,” he said. He attributed the backlash to the “really stupid tweet,” which he says he intended as a joke in the style of the New York Times Pitchbot Twitter account—which, incidentally, retweeted it. “I genuinely did not consider that it was about to be transmitted to a larger audience with access to none of the necessary context,” Guerin wrote, adding that he regrets it.
Langdell Hall Library, where one must eat one’s peanut butter sandwich very quietly (Photo by Brooks Kraft LLC/Corbis via Getty Images)
The note owes its anonymity to the quirks of HLR’s publication process. HLR is a student-run journal staffed by second- and third-year law students who compete for a limited number of editor spots—just 48 per class. Among the perks of winning one is that editors enjoy a de facto right to publish their own academic writing alongside the law professors, judges, practitioners, and other authors whom they publish. Technically, HLR leadership can “dissolve” notes deemed unfit for publication—if an author repeatedly misses deadlines, for example, or if objective factual or analytical errors render the piece unsalvageable. In practice, however, involuntary dissolution is rare. For the most part, if you make it onto HLR, you get to blog your ideas, no matter how anti-democratic your ideas may be.
On its website, HLR explains that publishing student writing without attribution “reflects the fact that many members of the Review besides the author make a contribution to each published piece.” Guerin echoed this rationale to me, saying that it reflects HLR’s “communalist mindset”; he added that he’s heard others say that anonymity “makes them feel more comfortable wading into doctrinal areas where they aren’t too familiar with the governing law.” I sent an email requesting comment for this story to two email addresses for Priscila Coronado, the Harvard Law Review president, and did not receive a response.
It is of course true that writing, outside the world of contrarian Substack grifters, is a collaborative process; people talk, and edit, and brainstorm, and workshop, and so on. But dispensing with bylines altogether is significantly out of step with the rest of the legal profession, to say nothing of publishing more generally. Other law reviews do not publish notes anonymously, and external contributors to HLR all write under their names. Lawyers have to sign their briefs, and judges, with notable but few exceptions, have to own their opinions. Attribution is a normal, reasonable custom in the profession for the same reason that it is a normal, reasonable custom in any profession: It holds people accountable for the claims they assert and the arguments they make.
This veil of institutionally-imposed anonymity is made worse by the fact that it only applies sometimes. Guerin told me that he had completed his clerkship applications before starting this note. But in general, editors are free to disclose authorship to prospective employers—more specifically, when auditioning for judges looking for like-minded clerks to draft their opinions. Especially for a conservative legal movement that purports to be “about ideas” and “fair, serious, and open debate,” there is a deep irony here: If you are a budding lawyer trying to establish your ideological bona fides, HLR’s rules allow you to have to answer for your work only when doing so is professionally convenient.
This is not the first time HLR’s policy has caused controversy. In April 2021, it published a review of United States v. Varner, a case in which Fifth Circuit Judge Kyle Duncan, a Trump nominee involved in anti-LGBTQ litigation before taking the bench, declined to acknowledge the preferred pronouns of an incarcerated transgender person. The opinion, which Smith joined, was widely condemned as cruel and transphobic. The HLR author praised it as “consistent with the robust socially conservative jurisprudence that has won Judge Duncan scholarly acclaim.”
Apparently, several HLR editors raised concerns about the Varner review as it wound its way through the editing process, flagging it as both insufficiently rigorous and also harmful to members of the trans community. But HLR leadership elected to move ahead with publication. Sources familiar with the review process say it was written by HLR editor Tyler Dobbs; per Harvard Law School’s student-reported clerkship list, Dobbs will clerk for Judge James Ho, one of the Fifth Circuit’s most strident culture warriors. Dobbs did not respond to a request for comment for this story.
Harvard Law School on one of three (3) days per year with acceptable weather (Photo by Brooks Kraft LLC/Corbis via Getty Images)
A source familiar with the Varner review told me that its publication and the subsequent criticism prompted a mandatory all-hands meeting last spring, when editors considered changes to HLR’s rules, including the anonymous student writing policy. Ultimately, the proposed change was voted down. Another source told me that the controversy over “As the Legislature Has Prescribed” has prompted HLR to convene on Wednesday to again consider the subject.
The internal politics of a student-run law school journal might be mercifully irrelevant if not for the fact that HLR membership can be a one-way ticket to legal superstardom. Among its alums are three sitting Supreme Court justices, dozens of lower court federal judges, Attorney General Merrick Garland, and Solicitor General Elizabeth Prelogar. The late Justice Antonin Scalia was a member; so was Texas Senator Ted Cruz. As Harvard Kennedy School Professor Maya Sen noted on Twitter, these authors are future leaders of the conservative legal movement—politicians, academics, judges, justices, lawmakers, presidents. Transparency about who writes what doesn’t seem like too much to ask.
Because HLR is so prominent within the legal community, the tradition of unsigned publishing also has the effect of attributing ideas not to a specific person, but to the Harvard Law Review itself—a troubling consequence in its own right. When a note takes a position on, say, the implications of the meaning of “exceeds authorized access” under the Computer Fraud and Abuse Act of 1986, HLR’s perceived endorsement might not seem terribly important. But when a note puts a legal sheen on notions like transphobia is fine or democracy is optional, stamping the official Harvard Law Review seal of approval across the top is wildly irresponsible. (Also, the fact that HLR rewards the kind of thinking that privileges myopic scrutiny of legal minutiae over the preservation of democracy is a compelling argument that HLR should perhaps be less influential than it is.)
Personally, I do not agree with the conclusions in “As the Legislature Has Prescribed,” because I think democracy is good and strained legal theories that could be invoked to justify minoritarian rule are bad, regardless of how many string-cited footnotes are marshaled in support. As a matter of editorial judgment, my view is that HLR should not be publishing just-asking-questions trial balloons, much less in a manner that appears to present them as HLR’s official position. Buttoned-up cryptofascism is already ascendant enough in America without the flagship journal of Harvard Law School giving it a free boost.
But as the last several decades have ably demonstrated, lots of powerful people have harmful, dangerous ideas, many of which will one day become law that affects the lives of millions of people. The very least institutions like Harvard Law Review can do is ask powerful people to own their ideas, instead of lending them an enormously influential anonymous platform to say whatever they want.
This article has been updated to clarify the facts of United States v. Varner.
