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. 2, Spring

An Interpretive Framework for Narrower Immunity under Section 230 of the Communications Decency Act
INTRODUCTION I. SECTION 230: TEXT AND BACKGROUND II. ZERAN, DRUDGE, AND THE MAJORITY VIEW III. INTERPRETIVE DIFFICULTIES AND OUTMODED POLICY OBJECTIVES A. Subsections 230(c)(1) and (c)(2): Giving Meaning to "Good Samaritan" ...
Antitrust in an Era of Market Failure
This is an unsettling time for those who support rigorous economic analysis in antitrust cases. Over the past four decades, numerous assumptions underlying the operation of free markets had developed to the point of being virtually unassailable. Rational...
Causes and Consequences of the Financial Crisis of 2007-2009
By the early fall of 2009, the business contraction that began in December 2007 appeared to be ending, (1) but the outlook, remained hazy. Despite a number of "green shoots," as Federal Reserve Chairman Ben Bernanke liked to put it, (2) the data were...
Cumulating Policy Consequences, Frightened Overreactions, and the Current Surge of Government's Size, Scope, and Power
INTRODUCTION The financial and economic crisis that came to a head in the late summer of 2008 has brought forth a huge government response, many elements of which are without precedent. The crisis, however, did not come from nowhere. In important...
Does the State Create the Market - and Should It Pursue Efficiency?
INTRODUCTION The economic turmoil that began in late 2008 has led many pundits to trumpet the death of free markets and welcome the final proof that allowing individuals to make economic choices without government oversight will lead to injustice...
Facilitating Economic Recovery and Sustainable Growth through Reform of the Securities Class-Action System: Exploring Arbitration as an Alternative to Litigation
INTRODUCTION I. THE ECONOMIC COSTS AND BENEFITS OF SECURITIES CLASS-ACTION LAWSUITS A. The Burdens on the Federal Judiciary B. The Costs to Individual Companies C. The Costs to the United States Capital Markets and Economy ...
Freedom and Equality in Market Exchange: Some Natural Law Reflections
Sound economic policy, morally upright economic judgment and action, and a stable web of economic institutions and agents are all essential for human well-being. The absence of any of these things creates crucial obstacles to the flourishing of persons,...
Intellectual Hazard: How Conceptual Biases in Complex Organizations Contributed to the Crisis of 2008
INTRODUCTION I. INTELLECTUAL HAZARD A. Complexity Bias B. Incentive Bias C. Asymmetry Bias D. Intellectual Hazards in Financial Markets II. INTELLECTUAL HAZARD AND THE CRISIS OF 2008 A. Banks B. The Fed C. Rating...
Preface
The recent economic crisis has affected us all. Some have lost jobs, others have watched their savings evaporate, and many have doubted, rightly or wrongly, the bedrock principles of our economic system. This uncertainty has raised a host of questions:...
Publicity Rights, False Endorsement, and the Effective Protection of Private Property
INTRODUCTION Publicity rights, though lacking a physical manifestation, are of high social benefit. These rights protect the commercial value in an individual's name. As with other forms of property rights, the state should enforce them vigorously...
Punishment and Student Speech: Straining the Reach of the First Amendment
INTRODUCTION On April 24, 2007, Avery Doninger referred to officials at her high school as "douchebags" on her private blog. (1) Finding little humor in the reference, the school officials responded by barring Doninger's run for a position on the...
Smith versus Keynes: Economics and Political Economy in the Post-Crisis Era
INTRODUCTION Alongside politicians, bankers, and CEOs, few groups have received as much opprobrium for the 2008 financial crisis as economists. "Economists are the forgotten guilty men" was the phrase employed in February 2009 by Anatole Kaletsky,...
Straw Man Capitalism and a New Path to Prosperity
Soon after the $700 billion Troubled Asset Relief Program (TARP) became law in October of 2008, the Washington Post ran a widely acclaimed article entitled "The End Of American Capitalism?" (1) The article called into question the supremacy of capitalism...
The Banks versus the Constitution
Some people say we are heading for socialism. I can see why they might think that: Since October 2008, the U.S. Treasury Department and the Federal Reserve have taken majority stakes in the country's largest commercial insurer (AIG), largest auto manufacturer...
The Case against the Fiscal Stimulus
INTRODUCTION When President Barack Obama took office on January 20, 2009, the U.S. economy had been in recession for over a year, and the prospects for a quick recovery appeared bleak. The Federal Reserve had already lowered interest rates to zero,...
The Constitution and Its Moral Warnings
The recent meltdown in our financial institutions, to say nothing of our portfolios and 401(k)s, seemed to confirm the view of Thomas Reid, Justice James Wilson, and others that we are not skeptics by nature. (1) David Hume might have raised metaphysical...
The Distorting Incentives Facing the U.S. Securities and Exchange Commission
INTRODUCTION This Article is about the incentives that motivate the Securities and Exchange Commission (SEC) and the ways in which those incentives influence the SEC's policies. Unlike most other treatments of bureaucratic incentives, (1) this analysis...
The Financial Crisis: Moral Failure or Cognitive Failure?
This may be our first epistemologically-driven depression. (Epistemology is the branch of philosophy that deals with the nature and limits of knowledge, with how we know what we think we know.) That is, a large role was played by the failure of the...
The Reduction of Systemic Risk in the United States Financial System
I. SYSTEMIC RISK REDUCTION: THE CENTRAL PROBLEM II. CAPITAL REQUIREMENTS A. CCMR Recommendations Aligned with the White Paper B. CCMR Recommendations That Differ from the White Paper and Pending Legislation: ...
The Scandal beneath the Financial Crisis: Getting a View from a Moral-Cultural Mental Model
"We have met the enemy, and he is us." --Walt Kelly INTRODUCTION I. RECEIVED VIEW OF THE FINANCIAL CRISIS A. What Happened and Why? B. What Regulatory Responses Are Called For? C. Taking Another Perspective, and Posing...
Unaffordable Housing and Political Kickbacks Rocked the American Economy
The economic earthquake that shook the world financial markets and bankrupted seemingly invulnerable multinational corporations exposed perilous fault lines of the federal government's own creation. Under mounting pressure, at a critical moment, the...
Why I Will Never Be a Keynesian
Necessity is both the mother of invention and the source of self-reflection. Nowhere is the latter more true than in social and economic affairs, where massive social and economic dislocations rightly prompt leading theorists to reexamine their fundamental...