Harvard Law Review

The Harvard Law Review is a journal published eight times a year (Nov.-Jun.) in Cambridge, Mass. Founded in 1887, its subject is law and legal scholarship. Its audience is comprised of lawyers, judges, educators, students and other professionals in the judicial system.

Articles from Vol. 126, No. 4, February

Arbitration and Class Actions - National Labor Relations Act - District Court Enforces Class Action Waiver in Employment Arbitration Agreement
In AT &T Mobility LLC v. Concepcion, (1) the Supreme Court held that the Federal Arbitration Act (2) (FAA) required the enforcement of class action waivers in consumer arbitration agreements, even though the waivers at issue were deemed unconscionable...
Civil Procedure - Class Actions - Fifth Circuit Holds That District Court Failed to Conduct Rigorous Class Certification Analysis in Light of Wal-Mart Stores, Inc. V. Dukes
Before a class can be certified, a court must conduct a "rigorous analysis" of the four prerequisites for class certification set forth in Federal Rule of Civil Procedure (FRCP) 23(a). (1) As a result of conflicting Supreme Court guidance prior to...
Constitutional Law - Economic Legislation - D.C. Circuit Rejects Challenge to Milk Regulation
Economic liberty, defined broadly as "the right to earn a living through trade or labor," (1) is protected under the Fourteenth Amendment of the United States Constitution. (2) Starting in the New Deal era, however, courts have afforded sweeping deference...
Constitutional Law - First Amendment - Seventh Circuit Preliminarily Enjoins Eavesdropping Law as Applied to Police Monitoring Program
The First Amendment protects the right to communicate by ensuring that "Congress shall make no law ... abridging the freedom of speech, or of the press." (1) Laws that criminalize eavesdropping restrict the ability to record and share speakers' words...
Counteracting the Bias: The Department of Labor's Unique Opportunity to Combat Human Trafficking
In the 1990s, human trafficking received increased attention both internationally and in the United States. (1) With the passage of the Trafficking Victims Protection Act of 2000 (2) (TVPA), Congress committed the United States to attacking human trafficking...
First Amendment - Free Exercise in Prisons - Fifth Circuit Holds That Prison's Prohibition on All Objects over Twenty-Five Dollars Did Not Violate Prisoner's First Amendment Rights or Substantially Burden His Religion under RLUIPA
The First Amendment forbids Congress from enacting a law prohibiting the free exercise of religion. (1) Nonetheless, the Supreme Court has maintained that "[l]awful incarceration brings about the necessary ... limitation of many privileges and rights,...
First Amendment - True Threats - Sixth Circuit Holds That Subjective Intent Is Not Required by the First Amendment When Prosecuting Criminal Threats
In its 2003 decision Virginia v. Black, (1) the Supreme Court reiterated that a "true threat" is not protected by the First Amendment and is subject to prosecution. (2) Despite the Black Court 's attempt to clarify when speech constitutes a "true threat,"...
Indian Canon Originalism
Indian treaties are "quasi-constitutional" documents. (1) So why not read them like constitutions? In fact, scholars of Indian law have urged federal judges to interpret Indian treaties "in the same manner as [they do] constitutional provisions." (2)...
International Law - Foreign Sovereign Immunities Act - Ninth Circuit Holds That Nonpayment in the United States by Counterparty Is Not a Direct Effect of Foreign State's Breach of Contractual Duties to Be Performed Abroad
The Foreign Sovereign Immunities Act of 1976(1) (FSIA) is the exclusive means by which a U.S. court can assert jurisdiction over a foreign sovereign, (2) including the sovereign's instrumentalities and majority-owned corporations. (3) Under the FSIA,...
Preemption as Purposivism's Last Refuge
INTRODUCTION Textualism has come to be the dominant theory of statutory interpretation in United States courts. As the primary academic proponent of textualism, Professor John Manning, has written, "the Court in the last two decades has mostly treated...
The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future
We persuaded entities conducting two legal aid programs designed to provide evidence regarding a civil right to counsel to allow us to randomize which potential clients would receive offers of traditional attorney-client relationships from legal aid...
The Meaning(s) of "The People" in the Constitution
The Constitution famously begins with a flourish, "We the People." (1) Less famously, the phrase "the people" appears in several other constitutional clauses, five of which are in the Bill of Rights. (2) The First Amendment ensures "the right of the...
Tilling the Vast Wasteland: The Case for Reviving Localism in Public Interest Obligations for Cable Television
Through its passage of the Communications Act of 1934, (1) Congress established the Federal Communications Commission (FCC) and conferred upon it the authority to, among other things, issue broadcast licenses. In relevant part, section 309 of the Act...