On Saturday, Feb. 19, fierce, widespread backlash spread against a Harvard Law Review Twitter post promoting a new article.
“Free and fair presidential elections are a cornerstone of American democracy, but are they required by the Constitution?” the post reads. “This Note says no, arguing for state discretion to regulate how, and whether, presidential elections occur.”
The article, entitled “As the Legislature Has Prescribed: Removing Presidential Elections from the Anderson-Burdick Framework,” was first published nine days earlier and didn’t gain much traction until the Harvard Law Review publicized it with this tweet.
The post elicited confusion, ire, and disbelief from prominent historians, pundits, activists, and professors, who wondered how such a bold claim was allowed to be published anonymously in a renowned legal journal. U.S. Senator Brian E. Schatz (D-Hawaii) quote tweeted the article with an ominous warning: “The road to autocracy is paved by fancy lawyers.”
The note featured a legal examination of the Anderson-Burdick balancing test, an esoteric legal theory derived from precedents set in two elections related cases analyzing the power of the state’s interest in instituting electoral restrictions against infringements upon an individual’s First and Fourteenth Amendment rights.
The author, Alexander J. Guerin, a recent Harvard Law School graduate, revealed his identity in an article published by Balls and Strikes, a legal commentary website. Guerin is a former editor of the Law Review and is currently serving as a clerk for Fifth Circuit Court of Appeals Judge Jerry E. Smith, appointed by Ronald Reagan in 1987.
The response to the piece shocked him, he says.
“I actually didn’t expect the note to be perceived at all,” he wrote in an email to The Crimson. “Most Law Review student writing receives virtually zero engagement after it’s published, which is a shame because most of it is much better than mine.”
However, he sees the backlash not as a result of the note’s actual content, but instead to the tweet itself, which he intended to be facetious.
“I had proposed [the tweet] as a joke,” he wrote. “That was definitely a mistake on my part and I’m sorry for it.”
It was not his decision to have the note published unsigned, he says. The Law Review publishes every piece of student writing anonymously, but it requires named attribution for outside contributors — a policy that has been questioned by Twitter users and some HLS students who stress the importance of accountability in presenting arguments.
This isn’t the first time that papers from the Law Review have stoked controversy.
Less than a year prior, the Harvard Law Review published another controversial note concerning the 2020 court case United States v. Varner (now known as Kathrine Nicole Jett). In the case, Fifth Circuit Judge Kyle Duncan, a Trump nominee who participated in anti-LGBTQ litigation prior to nomination, refused to recognize an incarcerated, transgender woman’s pronouns.
The author of the HLR note, however, praised the opinion as “consistent with the robust socially conservative jurisprudence that has won Judge Duncan scholarly acclaim.”
“If courts aim to avoid overreaching — if they refrain from trampling on objections, religious or otherwise, they will follow Varner’s lead and decline to compel the use of preferred pronouns,” the note concludes.
Law Review editors reportedly raised concerns about the note during the editing process. After it was published, backlash ensued, with many calling the note transphobic.
Editors of the Law Review enjoy a certain degree of freedom to express unpopular opinions. The Law Review does not explicitly tie its anonymous student note policy to editorial freedom, instead attributing it to “the fact that many members of the Review besides the author make a contribution to each published piece.” Still, it does allow for open expression without the threat of retaliation.
Priscila E. Coronado, president of the Harvard Law Review, did not respond to an interview request for this article.
The Harvard Law Review’s mandatory student anonymity policy is hardly standard. Peer publications nationwide — like the Yale Law Journal and the Stanford Law Review — name their student contributors.
But at Harvard, the idea of an open forum that allows for students to share their views with some degree of anonymity is a practice that extends to the rest of the Law School. The school’s Community Principle on Non-Attribution is based on the Chatham House Rule; when this rule is in place in meetings, forums, or classrooms, participants are allowed to use the ideas shared, but not to attribute them to the person who said them. The policy is designed to “bring an attitude of openness and experimentation to” student learning experiences, according to the Law School’s website.
In the legal profession more broadly, however, attribution is not only a common practice but an expected one. Judges must sign their opinions and lawyers must lay claim to their briefs, as attribution plays a central role in accountability for judicial arguments.
Harvard Law School student Rachel A. Cohen acknowledges that holding people accountable for opinions they held during their time in college further down the line may not always be reasonable. Despite this, she says, “if the opinion you’re espousing is anti-democracy, or it is anti-existence for an oppressed group, people have a right to know that you held that opinion at any point in your life.”
Cohen believes that Harvard Law students should be required to take ownership for their claims, given that many go on to hold prominent positions in the justice system.
“[The Harvard Law Review has] a responsibility to hold individuals accountable for what they are saying, because of the increased access that those individuals are provided with by nature of a Harvard Law School education,” she says.
— Magazine writer Jem K. Williams can be reached at firstname.lastname@example.org.