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. 127, No. 2, December

Constitutional Law - Fourth Amendment - First Circuit Holds That the Search-Incident-to-Arrest Exception Does Not Authorize the Warrantless Search of Cell Phone Data
CONSTITUTIONAL LAW--FOURTH AMENDMENT--FIRST CIRCUIT HOLDS THAT THE SEARCH-INCIDENT-TO-ARREST EXCEPTION DOES NOT AUTHORIZE THE WARRANTLESS SEARCH OF CELL PHONE DATA. --United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), reh'g en banc denied, No. 11-1792,...
Danger Lurking in the Shadows: Why Regulators Lack the Authority to Effectively Fight Contagion in the Shadow Banking System
Financial crises can be incredibly politically destabilizing and can make life miserable for millions of people, particularly the poor and the disadvantaged, who often lack the savings to weather the storm unscathed. Yet what is often lost in debates...
Discretion
I. In this field questions arise which are certainly difficult; but as I listened last time to members of the group, I felt that the main difficulty perhaps lay in determining precisely what questions we are trying to answer. I have the conviction...
Education Law - School Finance - Colorado Supreme Court Upholds State's School Finance System as Rationally Related to the "Thorough and Uniform" Mandate of the Colorado Constitution's Education Clause
EDUCATION LAW--SCHOOL FINANCE--COLORADO SUPREME COURT UPHOLDS STATE'S SCHOOL FINANCE SYSTEM AS RATIONALLY RELATED TO THE "THOROUGH AND UNIFORM" MANDATE OF THE COLORADO CONSTITUTION'S EDUCATION CLAUSE.--Lobato v. State, 304 P.3d 1132 (Colo. 2013). ...
First Amendment - Commercial Speech - Second Circuit Holds That Prohibiting Truthful Off-Label Promotion of FDA-Approved Drugs by Pharmaceutical Representatives Violates First Amendment
FIRST AMENDMENT--COMMERCIAL SPEECH--SECOND CIRCUIT HOLDS THAT PROHIBITING TRUTHFUL OFF-LABEL PROMOTION OF FDA-APPROVED DRUGS BY PHARMACEUTICAL REPRESENTATIVES VIOLATES FIRST AMENDMENT.--United States v. Caronia, 703 F.3d 149 (2d Cir. 2012). Government...
Fourteenth Amendment - Duty to Protect - Third Circuit Holds That State Has No Duty to Protect Schoolchildren from Bullying under the Special Relationship or State-Created Danger Exceptions
FOURTEENTH AMENDMENT--DUTY TO PROTECT--THIRD CIRCUIT HOLDS THAT STATE HAS NO DUTY TO PROTECT SCHOOLCHILDREN FROM BULLYING UNDER THE SPECIAL RELATIONSHIP OR STATECREATED DANGER EXCEPTIONS.--Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013) (en banc). ...
Habeas Corpus - Federal Statute of Limitations - Eleventh Circuit Holds That Postconviction Counsel's Misconduct Does Not Excuse Untimely Petition
HABEAS CORPUS--FEDERAL STATUTE OF LIMITATIONS --ELEVENTH CIRCUIT HOLDS THAT POSTCONVICTION COUNSEL'S MISCONDUCT DOES NOT EXCUSE UNTIMELY PETITION. --Smith v. Commissioner, Alabama Department of Corrections, 703 F.3d 1266 (11th Cir. 2012) (per curiam),...
H. L. A. Hart's Lost Essay: 'Discretion' and the Legal Process Dchool
B. What Is Discretion? 1. The Analytical Approach to Definition.--Hart devoted a large portion of his paper to the first question: "What is discretion ...?" It was a classic application of Hart's linguistic method. He believed that providing an...
In Memoriam: Ronald Dworkin
The editors of the Harvard Law Review respectfully dedicate this issue to Professor Ronald Dworkin. Richard H. Fallon, Jr * My first exposure to Ronald Dworkin came at Oxford, in the fall of 1975. Although I was there to study Philosophy, Politics,...
Parliamentary Procedure - Filibusters - Texas State Senator Wendy Davis Filibusters Abortion Bill
PARLIAMENTARY PROCEDURE--FILIBUSTERS--TEXAS STATE SENATOR WENDY DAVIS FILIBUSTERS ABORTION BILL.--Senate Session, TEX. STATE SENATE (June 25, 2013), http:// www.senate.state.tx.us/avarchive/ramav.php?ram=00006278. As partisan gridlock has intensified...
The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information
CONTENTS INTRODUCTION I. WHAT WE KNOW (AND THINK WE KNOW) ABOUT LEAKS A. The Legal Framework B. Leaking Practices C. Enforcement Practices D. Consequences II. ORDER IN "DISORDER": THE LOGIC OF LEAKINESS A. The...
The Path Not Taken: H.L.A. Hart's Harvard Essay on Discretion
I. H. L. A. HART AND HARVARD'S "YEAR OF JURISPRUDENCE" I should set out by confessing that when Geoffrey Shaw told me two years ago that he intended to work on a project exploring the influence of American ideas, and of the Process School in particular,...
The Vagaries of Vagueness: Rethinking the CFAA as a Problem of Private Nondelegation
The Computer Fraud and Abuse Act of 1986 (1) (CFAA) was enacted with the primary purpose of combating computer hacking. (2) The Act prohibits using a protected computer without authorization or exceeding authorized access when the computer is used...
Toward a General Good Faith Exception
Say a police officer asks a judge for a search warrant. Looking over the proposed warrant, the judge concludes that it respects the Fourth Amendment's command: "[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and...
War Powers - Detention of Prisoners - Congress Renews Restrictions on President's Power to Transfer Guantanamo Detainees to Foreign Countries
WAR POWERS--DETENTION OF PRISONERS--CONGRESS RENEWS RESTRICTIONS ON PRESIDENT'S POWER TO TRANSFER GUANTANAMO DETAINEES TO FOREIGN COUNTRIES.--National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112239, [section] 1028, 126 Stat. 1632,...