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. 34, No. 1, Winter

Are Originalist Constitutional Theories Principled, or Are They Rationalizations for Conservatism?
My topic is whether originalism, and in particular the form of originalism that might be thought to constitute Originalism 2.0, is "a rationalization for conservatism, or a principled theory of interpretation." (1) This question includes at least three...
Can Congress Overturn Graham V. Florida?
Shortly after my recent Article, Can Congress Overturn Kennedy v. Louisiana?, (1) went to press, the Supreme Court released its decision in Graham v. Florida. (2) This Coda accordingly updates the Article in two ways: first, by evaluating Graham's...
Does the Fourteenth Amendment Guarantee Equal Justice for All?
Does the Fourteenth Amendment (1) guarantee equal justice for all? Implicitly, this question asks whether the Supreme Court may transformatively interpret the Amendment to ban practices that were commonplace in 1868 or to create new constitutional...
Federal "Procedural" Rules Undermine Important State Interests in Shady Grove Orthopedic Associates. P.A. V. Allstate Insurance Co
Since the Supreme Court's decision in Erie Railroad Co. v. Tompkins, (1) federal courts have attempted to apply state "substantive" law and federal "procedural" law when sitting in diversity. (2) Courts draw this distinction differently depending on...
Google and the Limits of Antitrust: The Case against the Case against Google
ABSTRACT The antitrust landscape changed dramatically in the last decade. Within the last two years alone, the Department of Justice has held hearings on the appropriate scope of Section 2 of the Sherman Act and has issued, then repudiated, a comprehensive...
Interpretation and Construction
In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies....
Interpretation and Construction: Originalism and Its Discontents
Does originalism always provide judges with the path to a correct decision in a constitutional case? Before trying to answer this question, consider why someone would ask it. The motivation is relatively straightforward: It is a concern about the legitimacy...
Is Originalism Too Conservative?
Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics. (1) This is no surprise given the history of modern originalist theory and constitutional politics. Although originalist...
Originalism and History: The Case of Boumediene V. Bush
Originalism in theory is one thing. Originalism in practice may be something else again. To interpret the Constitution in light of history, which is what originalism amounts to, you have to interpret history. How well you perform the task of the historian...
Originalism and Precedent
Although originalism has grown in popularity in recent years, the theory continues to face major criticisms. One such criticism is that originalism cannot accommodate precedent. This criticism takes two forms. First, some critics, as well as some advocates...
Originalism and Stare Decisis
The extent to which originalism can be harmonized with precedent is an issue I have confronted regularly during my tenure as a justice on the Michigan Supreme Court. This article outlines several observations that have informed my thinking on this...
Originalism and the Constitution: Does Originalism Always Provide the Answer?
An endless stream of books and articles is written, and symposia-such as this one--are held, on the ever fascinating and intriguing subject of constitutional interpretation. Obviously, it is a matter of great importance. If the Supreme Court would...
Originalism as an Anchor for the Sixth Amendment
Originalism is sometimes criticized as merely a means to justify conservative results. (1) And cases do indeed exist in which the Supreme Court has divided along liberal-conservative lines, and conservatives have played originalism as a purported trump...
Originalism, Conservatism, and Judicial Restraint
"Judicial restraint" is not a well-defined term. Sometimes it is just an all-purpose term of praise for judges who have reached decisions that the speaker likes, in the same way that "judicial activism" is often an epithet used for decisions that the...
Originalism, Precedent, and Judicial Restraint
There are, in theory, ways of reconciling originalism and respect for precedent. But, in practice, these approaches have not been consistently adopted by the Roberts Court. Justice Antonin Scalia has described Chief Justice Roberts's attitude toward...
Patentable Subject Matter in Bilski V. Kappos
The scope of patentable subject matter has continued to generate fierce debate even after Congress created the Federal Circuit in 1982 to promote uniformity and predictability in the nation's patent laws. (1) Section 101 of the Patent Act of 1952 (Section...
Preface
The value of originalism as a method of constitutional interpretation has been debated as long as the method has been used. Even originalists disagree on whether judges should follow the Constitution's original meaning or original intent, what value...
Removing Corporate Campaign Finance Restrictions in Citizens United V. Federal Election Commission
Since the Supreme Court's seminal campaign finance ruling in Buckley v. Valeo, (1) the Court continues to disagree over the best way to balance First Amendment free speech rights against the state's interest in fighting the reality or appearance of...
Shareholder Activism by Public Pension Funds and the Rights of Dissenting Employees under the First Amendment
INTRODUCTION I. THE BACKDROP: A BRIEF HISTORY OF THE RECENT AND ONGOING REVOLUTION IN CORPORATE GOVERNANCE A. The Shift in Control to Independent Directors B. Shareholder Influence over Board Composition and Conduct ...
Two Cheers, Not Three, for Sixth Amendment Originalism
This Essay makes three basic points. (1) First, originalism is a good approach where the soil supports it, but many criminal procedure cases, particularly recent cases before the Supreme Court, lack solid historical foundations. (2) The Court is trying...
Was Bork Right about Judges?
The American public first met Robert Bork during the 1987 Senate Judiciary Committee hearing that considered his nomination to the Supreme Court. Compared with more recent judicial confirmations, the Bork hearing was highly dramatic. Most are aware...
What Is Marriage?
I. A. Equality, Justice, and the Heart of the Debate B. Real Marriage Is--And Is Only--The Union of Husband and Wife 1. Comprehensive Union 2. Special Link to Children 3. Marital Norms C. How Would Gay Civil Marriage Affect You...