The conservative influence of the Federalist Society on the Harvard Law School student body.

 
I.   INTRODUCTION 
II.  "YOU HAD TO HAVE A SENSE OF HUMOR 
     ABOUT IT": CONSERVATIVE PRECURSORS 
     TO THE FEDERALIST SOCIETY AT HARVARD 
     LAW SCHOOL 
  A. The Demise of the "Conservatizing 
     Milieu" 
     B. The Republican Club 
     C. The Rehnquist Club 
  D. The Harvard Society for Law & Public 
     Policy and the Harvard Journal of Law 
     and Public Policy 
III. "IT SEEMED LIKE THE OBVIOUS THING TO DO": 
     THE FOUNDING OF THE NATIONAL FEDERALIST 
     SOCIETY 
     A. Yale and Chicago 
     B. The First National Symposium 
     C. Creating a National Organization 
IV. "THERE'S NO ROOM FOR A CONSERVATIVE 
    ORGANIZATION AT HARVARD LAW 
    SCHOOL": FORMATION AND EARLY YEARS 
    OF THE FEDERALIST SOCIETY AT HARVARD 
    LAW SCHOOL 
    A. The First Group 
    B. The Harvard Atmosphere 
    C. Early Activities and Early Reactions 
V.  A "DECLARATION OF WAR"" THE HARVARD 
    CLUB PANEL 
    A. The Buildup 
    B. The Debate 
    C. The Aftermath 
    D. A Leader Emerges 
VI. "You CANNOT OVERSTATE ITS IMPORTANCE": 
    THE RIGHTWARD SHIFT OF THE STUDENT 
    BODY AT HARVARD LAW SCHOOL 
    A. Has There Been a Shift in the 
       Student Body? 
       1. Professors' Views 
       2. The Harvard Law Review 
       3. The Harvard Law Class of 2007 
    B. Reasons for the Rightward Shift in the 
       Student Body 
       1. External Factors 
       2. HLS-Specific Factors 
       a. The Role of Dean Robert Clark 
       b. The Role of the Current Federalist 
          Society 
VII. CONCLUSION 
VIII. APPENDIX 

"Conservative students at Harvard Law School are a tiny and beleaguered minority."

--Professor Paul Bator, 19851

"I love the Federalist Society."

--Dean Elena Kagan, 20052

I. INTRODUCTION

Reasonable minds may disagree on any number of legal issues, but when discussion turns to legal institutions, one proposition appears almost incontrovertible: Harvard Law School (HLS) is a "bastion" of liberalism. (3) Or so public perception would have it: On television (4) and in newspapers, (5) the image of Harvard Law School as a repository of left-leaning individuals and ideas is nearly unshakeable. Harvard Law is popularly viewed as part of the "liberal establishment," (6) a place of learning where "[o]ne opinion exists ... and that is the liberal opinion." (7) This belief is reinforced by the ubiquitous presence of high-profile liberal professors like Laurence Tribe (8) and Alan Dershowitz (9) in courthouses, on briefs, and before cameras, and by the headline-generating acts of alumni now serving as elected government officials, including Eliot Spitzer '84, the scourge of corporate titans as Attorney General of New York; Barney Frank '77, the leading voice for gay rights in the U.S. House of Representatives; and Charles Schumer '74, the thorn in President George W. Bush's side on the Senate Judiciary Committee. In addition, the law school is but one component of Harvard University, which has garnered its own revealing moniker, the "Kremlin on the Charles." (10) And while it is a stretch to characterize Harvard Law School as the Red Square to the University's Kremlin, even that most poised of publications, The Economist, recently referred to Harvard Law as the "command centre of American liberalism." (11) As popular sentiment would have it, then, Harvard Law School is utterly, indisputably, and almost monolithically leftist.

Despite this outward reputation, however, a quiet transformation has been taking place at Harvard Law School over the past several decades, the manifestations of which now challenge long-held assumptions about the institution's supposedly skewed ideological makeup. The trend, largely unnoticed by commentators and observers but borne out by both anecdotal and empirical evidence, is this: Conservatism has slowly but surely been making significant inroads among Harvard Law School students. Not only has a sizable and vocal conservative minority emerged within the student body in recent years, but also, and more consequentially, a broader rightward shift of ideological sentiments among the HLS student body as a whole has taken place. Put another way, looking back at the past thirty years, not only are there now more conservative students at Harvard Law School, and not only are those conservative students more vocal but the ideological beliefs of the average HLS student are now also more conservative. Both the mean and the median student have moved toward the right.

Moreover, these developments are attributable almost entirely to factors intrinsic to Harvard Law School. It is true that the average American has become slightly more conservative over the past three decades, (12) and law students drawn from a national pool would be expected to reflect this trend to some degree. The national trend, however, is much weaker than the student trend documented in this Article; the more marked increase in the conservatism of the HLS student body is due to matters affecting Harvard Law in particular. Changes to the administration and faculty, for example, have significantly driven this transformation. Yet there remains an additional element antecedent to these personnel changes--indeed, a motivating force behind them--that has played a crucial role in prompting and fostering the rightward shift of the student body: the formation and rise of the Federalist Society at Harvard Law School.

The Federalist Society is a national organization of law students and legal practitioners that describes itself as "a group of conservatives and libertarians dedicated to reforming the current legal order." (13) Driven by the belief that "[l]aw schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society, (14) the Society is "committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." (15) The Society "seeks to promote awareness of these principles and to further their application through its activities." (16) It features student and lawyer divisions, with student chapters at approximately 180 law schools, (17) including Harvard.

Much ink has been spilled over the national Federalist Society's role within the current Bush administration--among other things, its perceived influence on cabinet members, Department of Justice officials, and judicial appointees. (18) But it is the Harvard Law School chapter of the Federalist Society that this Article seeks to explore. Specifically, this Article is an examination of the formation and early years of the Federalist Society chapter on the Harvard Law School campus and its role in bringing about a changing of the ideological guard at the law school. This Article explores the ideological atmosphere that had developed at Harvard Law School by the late 1970s and early 1980s; the approaches by which conservative students during those times attempted to provide an alternative voice to the overwhelmingly liberal environment of the era; the extent to which one group of conservative students, the Society for Law and Public Policy--now the Harvard Federalist Society--succeeded in triggering a counterreaction to the dominant beliefs of the time and reorienting the ideological direction of the school; and the effects of these actions on the law school, including conservative-friendly personnel changes and, ultimately, a rightward shift in the beliefs of the HLS student body. Twenty-five to thirty years ago, conservative students at Harvard Law were ideological outliers who struggled to gain credibility in class and acceptance on campus. Today, the Harvard Federalist Society is one of the most prominent voices at the law school, an organization that sports a well organized, well established presence on campus. Thus, while it is far too soon to refer to Harvard Law School as a bastion of conservatism, it is no longer accurate, because of the efforts of conservative students both past and present, to continue reflexively to associate Harvard Law School with unadulterated liberalism.

Before continuing, a preliminary word on this Article's use of "conservatism" is necessary. Admittedly, it is a catch-all term, and bifurcating ideas and individuals into "conservative" and "liberal" categories is a rough division at best. One framework that may be helpful going forward is a three-strand structure that Professor Richard Fallon has elaborated in scrutinizing the "conservatism" of the Supreme Court. (19) Professor Fallon identifies three types of conservatism: substantive conservatism, methodological conservatism, and institutional conservatism. (20) It is this first type of conservatism, substantive conservatism, that this Article generally means to evoke when using the term "conservative." Substantive conservatism generally means an outlook disfavoring the criminally accused and civil rights-civil liberties claimants; favoring takings claimants; and adopting positions that are anti-union, pro-business, anti-liability, and anti-injured person. (21) Fallon admits this definition is "obviously crude" and further subdivides "self-identified political conservatives" into "libertarians, who generally believe that that government governs best which governs least, and social conservatives, who favor governmental regulations to protect traditional values and structures." (22) Although the principles of those two groups may often seem at odds with each other, an underlying thread does unite them. As Professor Robin West has written,

  Conservative political theory ... is united    by its antipathy to state  normative authority  
   and preference for social authority.... [S]ocial    conservatives  urge the state to defer to the    visions of the good embedded in a  community's    moral institutions; ... free-market    conservatives  locate normativity in the    outcomes generated by and the preferences  
   reflected in economic markets. [Both], however,    view these  forms of authority as importantly    higher or better than the normative  
   authority of "the state." (23) 

Although substantive conservatism, divided between libertarianism and social conservatism, is the main form of conservatism that this Article emphasizes, Fallon's two other definitions of conservatism bear mentioning as well. Methodological conservatism describes how one favors reaching legal decisions and fashioning legal rules. The generally conservative positions in this regard are again divided into two: "originalist" understanding, which asserts that issues should be resolved in accordance with the Framers' understanding of the Constitution's text; and "Burkean" understanding, which is not as tied to constitutional text but places great weight on a reverence for tradition, a distaste for sweeping constitutional generalizations, and a preference for movement in incremental steps. (24) Another manifestation of methodological conservatism is the law and economics framework, (25) which, like originalism and Burkean interpretation, disfavors untethered, broad generalities and binds itself to the mast of an underlying element. Rather than constitutional text or "tradition," however, its underlying element consists of the "theories and empirical methods of economics." (26) Methodological conservatism need not be correlated with substantive conservatism, (27) but the two are often tied together in practice. (28)

Finally, Fallon defines institutional conservatism as an approach "favor[ing] a narrow role for the judiciary, or at least ... disfavor[ing] judicial innovation." (29) This meaning has less applicability once removed from the judicial context, but it does have some relevance in discussing increasing conservatism at Harvard Law School. Institutional conservatism can be taken to mean how much weight one puts on traditional standards in deciding admissions, faculty appointments, and other aspects that constitute a law school. (30) Institutionally conservative members of a law school might more often prefer customary, more objective measures of excellence when reaching decisions and spurn alternative, nontraditional approaches, just as institutionally conservative decisionmakers might disdain similar innovation within the judiciary.

This Article does not purport to review the entire history of the law school in the last thirty years, an undeniably Herculean task, nor does it contend to provide an exhaustive history of conservatism at Harvard Law School or even the Federalist Society itself, both of which could easily fill a book. Rather, this Article seeks to document the heretofore untold early history of the Harvard Federalist Society, the circumstances that preceded and prompted its founding, its place within the larger Harvard Law School environment in which it was formed, and the substantial impact it had on reframing the ideological atmosphere at Harvard Law School in the 1980s and continues to have today. A history of the last thirty years of Harvard Law School cannot be written without acknowledging and understanding the role of conservative students and the Federalist Society in shaping the school's arrival at its present state. This Article seeks to further that understanding.

To that end, the Article proceeds as follows. Part II documents the state of conservatism at Harvard Law School prior to the formation of the Federalist Society, describing the shift in student attitudes after the Vietnam War and Watergate and the effect of this trend on conservative outlets at the law school. Part III tells the story of the founding of the national Federalist Society, including the role of Harvard students in its genesis. Part IV explains the formation and early years of the Harvard chapter of the Federalist Society. Part V describes the Harvard chapter's 1985 presentation of a panel at the Harvard Club of New York that fundamentally altered the course of the law school. Part VI examines the rightward shift of the HLS student body and its relation to the past and present efforts of the Harvard chapter of the Federalist Society. Part VII concludes.

II. "YOU HAD TO HAVE A SENSE OF HUMOR ABOUT IT": CONSERVATIVE PRECURSORS TO THE FEDERALIST SOCIETY AT HARVARD LAW SCHOOL

A. The Demise of the "Conservatizing Milieu"

For much of the Twentieth Century, Harvard Law School bore the hallmarks of a relatively conservative institution, its character more rooted in tradition and less progressive-minded than its peers. The modern Harvard curriculum was grounded in Langdellian theory in which "'law, considered as a science,' consisted only of a discrete number of 'principles and doctrines." (31) Even after this theory was abandoned in the face of criticism from legal realists, curricular change at Harvard advanced only cautiously in comparison to its competitors, Columbia and Yale, where academic and curricular innovations had been launched in the 1920s and 1930s. (32) The New Deal prompted the first serious effort to reform the HLS curriculum, but World War II put an end to this attempt. (33) In 1946, Erwin Griswold assumed the deanship, a position he would hold until 1967. Under Griswold, who "set a high moral tone for the Law School," (34) the Harvard Law of the 1950s and 1960s was a "conservatizing milieu." (35) Indeed, "the leitmotiv of student life during the Griswold deanship was the extent to which students ignored national politics in favor of an almost exclusive concern with their future careers." (36)

Accordingly, it is no wonder that Professor Arthur Sutherland made the general point in his 1967 history of Harvard Law School that "students of law are, on the whole, quite conservative," (37) for his experiences at Harvard would have shaped such a comparative opinion. It is also not surprising that, in being groomed primarily to practice law among the large firms of the time, Harvard Law students' politics would mirror those of the nation. On October 5, 1967, the Harvard Law Record, the student-published newspaper of Harvard Law School, reported on a "straw primary" that the Harvard Law Republicans conducted in anticipation of the 1968 presidential election. More than 80% of the student body participated, and in figures "close to the national averages," 31% identified as Republicans, 44% as Democrats, and 25% as independents. (38) Thus, at the end of 1967, if political party affiliation is any indication, the Harvard Law School student body displayed, if not a relatively balanced ideological mix, at least one that reflected the nation as a whole.

The social and cultural tumult that swept the country in the late 1960s and early 1970s had an extraordinary effect on Harvard Law School, dramatically altering the ideological outlook of the student body. Although a general history of Harvard University and Harvard Law School during this period is beyond the scope of this Article, the Vietnam War era was unquestionably a period of enormous change and unrest at Harvard Law School. Increasingly progressive and activist students challenged the policies of both the law school--the deanship of which Griswold had resigned in 1967--and the national government. Indeed, only three weeks after the Record reported the aforementioned political survey, its front page contained a story stating that approximately fifty HLS students, almost eighty percent of them in their first year, had joined in a march on Washington to protest Vietnam policy. (39) On that same front page, another story noted similar socially driven stirrings among the faculty and reflected in course offerings. (40) Other indications of a leftward shift in the student body rapidly proliferated in the proceeding years: the formation of a radical law students' group in fall 1968, (41) distribution of anti-war leaflets by nearly 600 students in conjunction with a national Moratorium Day in fall 1969, (42) travel by about 400 students to Washington, D.C. in May 1970 to participate in anti-war activities, (43) and the passage of a resolution by nearly 700 students demanding that the faculty cancel spring exams in 1970 to show support for the anti-war movement. (44)

Surveys reported in the Record confirm a precipitous drop in student conservatism accompanying these activities. Whereas in the October 1967 poll 31% of students identified as Republicans, an October 1968 pre-election poll showed that only 21% of students supported Richard Nixon in the general election. (45) This latter survey evidenced rising student radicalism as well, pushing the mean HLS student ideology leftward: One student answered, "I would not vote. Revolution is the answer"; another wrote in the name of Eldridge Cleaver. (46) By March 1972, according to another Record poll, only 11% of students identified themselves as Republicans. (47) The article remarked that the voting "clearly disclosed the Law School's liberal preferences." (48) Just before the 1972 election, that number dropped to 10%, in a poll that showed 83% of HLS students supported George McGovern. (49) Not only was Harvard Law School "heavily Democratic," (50) but given the fact that McGovern ultimately garnered only 38% of the popular vote in one of the most decisive presidential defeats in history, (51) it was clearly moving in a decidedly different direction than the rest of the nation.

B. The Republican Club

Throughout the Vietnam Era, conservatives at Harvard did not lack an outlet for fraternizing, networking, and advancing conservatism. The law school had sported a Republican Club since 1947, when it was organized as a committee of the University Young Republican Club. (52) It became an autonomous organization in 1958, christening itself the Harvard Law and Graduate Schools Republican Club. (53) As its name suggests, the club, while primarily consisting of law students, also included members from other schools, particularly the business school. (54) The organization thrived at the beginning of the 1960s; its photo in the 1962 yearbook shows 77 members, and its description boasts more than 300 members. (55) But it was not immune to the changes that affected Harvard in the late 1960s and early 1970s. Its 1969 yearbook photo shows only 31 members; (56) its 1970 photo, 22; (57) and its 1971 photo, only 20. (58) This membership decline mirrored the drop in the number of conservatives on campus: By the early 1970s, according to one alumnus's estimate, only 3 to 5% of the campus would openly identify as conservative. (59)

Those alumni who were in the Republican Club in the early 1970s recall it as small but still "fairly active." (60) According to Donald Ayer '75, approximately twenty-five people were actively involved, though it was "always a pretty discreet group of people." (61) The Club served both political and social functions. On the political front, the members held meetings, hosted speakers, and took a trip to Washington, D.C. each spring, (62) which one alumnus characterized as "not much more than a bunch of college kids going to D.C. on spring break who wanted to meet famous people" and found that the Harvard name opened doors. (63) The group's makeup was "big-tent," with many Rockefeller Republicans; it thus directly contrasted the Republican Club at Harvard College, which included more "true-believing conservatives" and was more "ideological." (64) Socially, the club scheduled trips to meet with Republican Clubs at nearby colleges--most of which, not coincidentally, were women's colleges such as Wellesley, Mount Holyoke, and Smith. (65) Former members make no apologies for their ulterior motives: The law school was predominantly male at this time, so visiting these chapters was "quite an attraction." (66) Many Republican Club members were also members of Lincoln's Inn, which drew less of the "real radical types" (67) and more individuals who "would want to spend money on social dues to drink inexpensive scotch"; such individuals tended to be more inclined toward conservatism. (68)

The Republican Club did not serve as a forum for serious legal or intellectual discussion of conservative legal views; it was very much a political, partisan organization. (69) While the members may have discussed being conservative among themselves, there was no effort to write about conservative issues in a scholarly manner nor any effort to inform or persuade others through campus debate. (70) In this sense, while the Republican Club served as an outlet for conservatives at Harvard Law School, its purpose differed considerably from the missions of later HLS conservative organizations. The club did serve as a sanctuary for conservatives, whom one alumnus described as an "embattled minority" on campus at that time, (71) but it did not engender any affirmative animosity. This is in large part because it was not a forum to propose or espouse conservative legal views. (72) Unlike the hostile reaction the Federalist Society would inspire in its early years by encouraging conservative outspokenness, the Republican Club, and conservatives on campus in general, by remaining "discreet," stayed largely underneath the Harvard Law School radar. But only a few years into the 1970s, national events would again provide a setback to conservative students at Harvard Law School, a blow to which they responded in typical Harvard Law fashion: with gallows humor.

C. The Rehnquist Club

On June 17, 1972, five men were arrested while breaking into the offices of the Democratic National Committee at the Watergate hotel and office complex in Washington, D.C. (73) By April 1973, President Nixon's chief of staff, top domestic adviser, and attorney general had resigned over the growing scandal. (74) By August 1974, the Watergate affair brought about the resignation of President Nixon himself. (75) As wearying as the affair was for both the nation in general and the Republican Party in particular, it dealt a near-fatal blow to Republicans on the Harvard Law School campus, eviscerating what little conservative presence may have previously existed. The entire Watergate affair was "terrible for morale" among Republicans on campus, states one alumnus. (76) President Nixon "totally embarrassed himself" with Watergate, (77) and the ignominy spread to those Harvard Law students who had previously supported his political efforts. The post-Nixon, post-Watergate years were "not a very good time to be a Republican," another alumnus notes, (78) and the fate of the Republican Club bears this out. By 1973, the Club numbered thirteen in its yearbook photo; by 1976, only four. (79) By 1977, it had disappeared completely. (80)

While President Nixon's decline and fall may have spurred the demise of conservative organizations at the law school, it coincided with the appearance of what can only be politely regarded as one of the most bizarre student organizations in recent Harvard Law School history. The 1973 Harvard Law School yearbook contains, in the student organization section, the usual pictures and blurbs of the various Ames Clubs of the time. These clubs, now defunct, were named for great jurists and organized primarily to field teams for the annual moot court competition. (81) But nestled among the pages portraying the likes of the John Marshall Club and the Learned Hand Club is a decidedly incongruous outfit named after a jurist who had ascended to the Supreme Court only a year earlier: the Rehnquist Club. In contrast to the austere images of other Ames Club photos, the Rehnquist Club photo depicts nineteen students wearing various costumes, including Mexican ponchos and fur coats; smoking pipes; and grinning widely at the camera. (82) The names accompanying the picture are clearly fictitious: they include "Checkers," "A. Hiss," "N. Guilty," "#568-86-9490," and "T. Chamber Pott." Perhaps most absurd of all is the blurb juxtaposed with the photo, which is reprinted in full as follows:

"The formation of the Rehnquist Club was a victory for free speech and minority rights," said co-founder Elwood Greed. "Prior to its birth, there was virtually no foothold at Harvard F. Law School for the worldwide forces of atavism and revanchism."

From the outset, the Club faced serious obstacles. Many of its potential supporters felt that "membership" in any "group" smacked of bleeding heart collectivism. Yet the Rehnquisters were inexorably drawn together, lonely spokesmen for the pro-American viewpoint amid legions of knee-jerking sob sisters.

The club's activities centered on its monthly Patriotic Discussion Session, informally yclept The Rehnquisition. Early topics for 1972-73 included: Nuclear Weapons: A Solution for the Urban Problem?; The Ninth Amendment and Your Right to Own Gold; and Perversion of Justice--Unnatural Acts of Congress. Hotly debated, though rejected by the club, was Yodar Krevich's proposal for Retroactive Birth Control: "Many of the 20-to-25 year-olds running around Cambridge are here only because of their parents' inadequate population control technology. We ought to correct the mistakes of years past...."

Other Rehnquist Club activities have been less successful. Harvard's Criminal Law faculty reportedly refused to cosponsor a colloquium on "Coddling the Moral Degenerate" because it would duplicate their present curriculum. Limousine Liberals throughout the Commonwealth are resisting plans for a projected Underwater Motorcade around Martha's Vineyard in 1976.

Each year, the club presents its Elijah Adlow Award for No-Nonsense Law Enforcement. Past recipients have been Clinton Eastwood, Duke Wayne, Popeye Doyle, Mayor Rizzo, Inspector Lestrade, Generalissimo Franco, and the Sheriff of Nottingham. (83)

The 1974 yearbook features a similarly curious photo (featuring names like "G. Liddy" and "J. Dean, III") and blurb. (84) In fact, the Rehnquist Club reappears in the Harvard Law yearbook up through 1979, each time featuring disguised members, fictional names, and descriptions so colorfully over-the-top in conservative rhetoric that it is difficult to tell if the members' motives--if they had any--were to promote right-wing or leftwing views. (85)

The Rehnquist Club was not actually a student organization at all. It was the brainchild of a conservative student, Hal Mickelson, as a way to poke fun at what conservatives at Harvard Law School felt was an overwhelming sense of liberalism on the HLS campus, particularly with President Nixon under fire in the White House. According to several "members" of the club, Mickelson came up with the idea, wrote the tongue-in-cheek blurb, and collected money to pay the fee for placement in the 1973 yearbook. (86) Mickelson acknowledges that the Rehnquist Club was a "phony Ames Club" that had no existence apart from getting together for the photograph. (87) He characterizes it as a "smart-aleck way" to draw attention to the paucity of conservatives and conservative ideas on campus. It was a time when, because of Watergate, "if you wanted to be a right-winger, you had to have a sense of humor about it." It "wasn't a lot of fun to be a Republican, or a conservative, or a right-winger, or any of those things," Mickelson says, "so you had to make your own fun." (88) The members were largely drawn from the Republican Club but also included some of Mickelson's fellow residents of the third floor of Ames Hall, who were not themselves conservative but "in on the joke." (89)

Though obviously an over-the-top gag, the Rehnquist Club's brief existence underscores that the post-Vietnam War, post-Watergate atmosphere of Harvard Law School had undergone a shift toward a considerably more left-wing environment. The Republican Club had entered its death spiral, and conservative students were left to resort to underground, once-a-year frivolity in order to make any statement at all on campus or find any sanctuary, real or unreal. The "club" continued to appear in the yearbook throughout the rest of the decade, but, paralleling the dwindling numbers in the Republican Club, its photo featured fewer people each year, bottoming out at three persons in 1979 before the group finally succumbed to history. By that point, however, a serious outlet for conservatism on campus had formed, one that comprised the first step toward the formation of the Federalist Society and the eventual transformation of the ideological climate at Harvard Law School.

D. The Harvard Society for Law & Public Policy and the Harvard Journal of Law and Public Policy

In spring 1977, two third-year Harvard Law students, Spencer Abraham and Steven Eberhard, approached Dean Albert Sacks with an idea for a new student law journal. The creation of a journal at Harvard Law School was not an infrequent event in those days: (90) The recent formation of the Women's Law Journal brought the number of student specialty publications to five, the others being the Civil Rights-Civil Liberties Law Review, Environmental Law Journal, International Law Journal (the first of the specialty journals, commencing publication in 1959), and Journal on Legislation, in addition to the longstanding Harvard Law Review. Abraham and Eberhard, however, sought not "merely to add another specialized journal to the long list of periodicals" at the law school. (91) Believing that the existing specialty journals generally maintained a liberal perspective, (92) they instead desired to create a journal that would encompass a broad range of legal political and economic topics from a unique editorial viewpoint: one "broadly characterized as conservative." (93)

Abraham and Eberhard were then serving as managing editor and note editor, respectively, of the Journal on Legislation, which the Record described at the time as "liberal-leaning." (94) Dissatisfied with their journal experience, (95) they felt that conservative ideas had been "all but dismissed" from law journals and that "conservative students had almost no opportunity to pursue and develop their own thoughts and interests." (96) These barriers led to two negative consequences: First, it made it difficult for conservative students to reap the benefits of participating in law journal publication, diminishing both personal satisfaction and employment opportunities; second, the dearth of conservative law journals stifled the development of new conservative ideas. (97) Abraham and Eberhard were not oblivious to the challenge ahead of them. As Abraham later noted, the legal academy at the time "was dominated by people whose devotion to big, centralized government caused them to advocate an activist judiciary that would twist the meaning of laws, and even the Constitution, to serve their policy goals." (98) Aside from this generally adverse environment, the atmosphere at Harvard in particular was even more unwelcoming. As Judge Douglas Ginsburg, then an assistant professor at the law school, later recalled, "the faculty of the Harvard Law School was overwhelmingly hostile to conservative ideas and the student body appeared to be only a little more diverse." (99)

Abraham and Eberhard experienced this inhospitability firsthand in their meeting with Dean Sacks, who offered them office space but, unlike the other journals, no school funding or use of the school's publication resources. The reason given was that the school did not wish to subsidize a publication that openly advocated a particular ideological viewpoint. (100) The students were somewhat incredulous, given the implication, implausible to them, that publications like the Civil Rights-Civil Liberties Law Review adopted a nonideological stance, but the fact remained that if they were to issue a conservative law journal, they would have to raise the funds and arrange for publication on their own. (101) To do so, on June 6, 1977, Abraham and Eberhard incorporated the Harvard Society for Law & …