Harvard Journal of Law & Public Policy

Tri-annual journal featuring scholarly review of law and issues of importance to students, educators, and practioners.

Articles from Vol. 33, No. 3, Summer

A Retreat from Decision by Rule in Ashcroft V. Iqbal
Federal Rule of Civil Procedure 8 requires only that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." (1) In 1957, the Supreme Court in Conley v. Gibson held that a complaint survives a motion...
Being Honest about Being Honest Agents
Let me begin by saying that I am completely in favor of the proposition as stated: that judges should be the honest agents of the enacting legislature. In saying this, I first want to make a distinction between interpretation and construction. Construction...
Can Congress Overturn Kennedy V. Louisiana?
As recently illustrated in Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of "national consensus." Although this practice has been the topic of extensive commentary and criticism,...
Chevron's Sliding Scale in Wyeth V. Levine
For years now, courts and commentators have struggled to reconcile the presumption against preemption--the interpretive canon that presumes against federal incursion into areas of traditional state sovereignty--with the Chevron doctrine, which instructs...
Federalism and Faith Redux
One key structural feature of American government that may facilitate ordered liberty is federalism. In this Essay, I discuss one way that religious liberty relates to American federalism, and how conceptions of religious liberty might be revised in...
Judges as Honest Agents
I'm here to defend the proposition that, when implementing statutes, judges should be honest agents of the enacting legislature. The honest-agent part is not controversial. It isn't just that Hamilton said in The Federalist that judges would play...
Love, Truth, and the Economy: A Reflection on Benedict XVI's Caritas in Veritate
INTRODUCTION There is an old joke that goes something like this: It's late at night and two junkies are sitting on a park bench, both of them coming down from the high of their latest fix. One turns to the other and says, "Do you know what my problem...
Preface
The Journal is proud to publish several panels from this year's Federalist Society National Lawyers Convention. The Annual Rosenkranz Debate features Judges Guido Calabresi and Frank Easterbrook discussing whether the Constitution requires federal...
Rational Pleading in the Modern World of Civil Litigation: The Lessons and Public Policy Benefits of Twombly and Iqbal
INTRODUCTION I. THE RISE AND FALL OF NOTICE PLEADING A. The Development of Basic Pleading Standards 1. Common Law Pleading 2. Code Pleading 3. Notice Pleading B. The Twombly and Iqbal Decisions II. PLAUSIBLE...
Religion and Its Relation to Limited Government
Is religion, and strong protection for the freedom of religion in particular, best understood as allied with commitment to freedom in general? Or should we understand religion and strong protection for freedom of religion as a pre-modem and essentially...
The Decline of the Court of Federal Claims in Nebraska Public Power District V. United States, 590 F.3d 1357 (Fed. Cir. 2010)
The Tucker Act assigns to the Court of Federal Claims (CFC) jurisdiction over claims for money damages against the federal government. (1) As a result, the CFC traditionally had exclusive jurisdiction to hear contract claims against the government...
The Obama Administration and the War on Terror
Last year I expressed the hope that the incoming Obama Administration would take a good look at what the Bush Administration had done in good faith to keep the United States safe. (1) My hope was that the Obama Administration would find those measures...
The Role of the Federal Judge under the Constitution: Some Perspectives from the Ninth Circuit
When considering the role of the federal judge under the Constitution, we should begin with the text of the Constitution itself. I. THE NATURE OF THE JUDICIAL POWER Article III, Section I provides that "[t]he judicial Power of the United States,...
Why Conservatives, and Others, Have Trouble Supporting the Meaningful Enforcement of Free Exercise Rights
If there are specific areas of life where the role of government should be particularly limited, religion is certainly one of those areas. It is not the government's business to interfere with or attempt to influence religious belief and practice....