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. 35, No. 1, Winter

American Dignity and Healthcare Reform
The concept of human dignity provides a useful reference point for evaluating American exceptionalism in the context of welfare rights. Since World War II, human dignity has emerged as the preeminent value in many modern constitutions and various human...
American Exceptionalism and the Healthcare Reform Debate
Two generations ago, discussion of "American exceptionalism"--at least among social scientists--came down to one great question: Why no socialism in America? (1) By the 1980s, however, even self-described socialists in Western Europe had embraced the...
Deference to the Executive in the United States after September 11: Congress, the Courts, and the Office of Legal Counsel
According to the "deference thesis," legislatures, courts, and other government institutions should defer to the executive's policy decisions during national security emergencies. (1) In this Essay, I will address two criticisms of the deference thesis....
Depoliticizing Federalism
In his great biography of President Andrew Jackson, (1) Arthur Schlesinger, Jr. celebrated Jackson's defense of the rights of states and opposition to federal power. Yet as a midtwentieth-century liberal, Schlesinger was a strong supporter of the federal...
Does the Constitution Protect Economic Liberty?
It is my job to defend the proposition that the Court in Lochner v. New York (1) was right to protect the liberty of contract under the Fourteenth Amendment. I will not be defending its use of the Due Process Clause (2) to reach its result. As I shall...
Economic Freedoms and the Constitution
I would like to defend the traditional conservative view that judges should not second-guess political debates in the name of amorphous rights that do not appear in the text or history of the Constitution. (1) Indeed, that promise was precisely what...
Economic Uncertainty and the Role of the Courts
This Article addresses economic uncertainty and the role of institutions in securing property rights. We know a lot more about the former than we do about the latter. That is to say, we know about the effects of uncertainty, especially uncertainty...
Economic Uncertainty, the Courts, and the Rule of Law
INTRODUCTION Should judges protect private property rights and constitutional rights as vigilantly in times of crisis as in ordinary times? Conventional wisdom holds that crises justify suspending the rule of law and allow government discretion...
Enlightenment Economics and the Framing of the U.S. Constitution
Did the Framers have an economic theory in mind when they wrote and ratified the U.S. Constitution? Some say the principal Framers did not have a common, cohesive set of views on economics. (1) Others consider the question to be irrelevant. Society...
Federalism as a Discovery Process and a Catalyst for Humility
My subject is federalism and rights. I will argue that jurisdictional competition is, by and large, an effective way for society to discover a good set of rights for people to flourish. It is wholly appropriate to discuss federalism in relation...
Fiscal Federalism as a Constraint on States
Federalism--by which I mean more than federal-state relationships, and in particular mean all relationships between relatively centralized governments and their relatively decentralized subdivisions--allows different jurisdictions to compete for residents,...
In Defense of Substantive Due Process, or the Promise of Lawful Rule
"The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name.... If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding." ...
In Praise of Hostility: Antiauthoritarianism as Free Speech Principle
I. CIVILITY MATTERS II. THE UNPERSUASIVE RATIONALE IN HUSTLER MAGAZINE V. FALWELL III. ANTIAUTHORITARIANISM DEFINED IV. THE HAZARDS OF DISRESPECTING THE MONARCH V. AUTHORITARIANISM'S SOLEMN EXPECTATIONS VI. THE EMERGENCE...
Interstate Competition and the Race to the Top
Federalism is an essential part of the Constitution's design. The division of sovereign power between the States and the federal government helps foster interjurisdictional competition, which, in turn, checks government power. (1) Provided a right...
Judicial Independence, Judicial Virtue, and the Political Economy of the Constitution
Economic theory applies to many things besides the commercial marketplace. Whether, or to what extent, the Framers constitutionalized an economic theory of private property and free enterprise, they certainly did employ an economic theory of government....
Maintaining the Clear and Convincing Evidence Standard for Patent Invalidity Challenges in Microsoft Corp. V. I4i Limited Partnership, 131 S. Ct. 2238 (2011)
The term "burden of proof" is one of the "slipperiest members of the family of legal terms," and the correct standard of proof when challenging the validity of a patent is no exception. (l) Section 282 of the Patent Act states that "[a] patent shall...
National Healthcare and American Constitutional Culture
There is no serious constitutional argument of which I am aware suggesting that the federal government cannot provide free healthcare to every individual in the United States. (1) Nor is there any sound constitutional claim that the United States could...
Preface
In the last few years, America's economy has faced a global financial crisis and the worst economic downturn since the Great Depression. The federal government responded with sweeping interventions, including an $800-billion stimulus package, major...
State Law Claims and Article III in Stern V. Marshall, 131 S. Ct. 2594 (2011)
Article III, Section 1 of the Constitution vests "the judicial Power of the United States" in courts whose judges "shall hold their Offices during good Behavior." (1) Bankruptcy courts are presided over by judges who lack such life tenure (2) and so...
The Constitution and Economic Liberty
Does the Constitution simply establish a framework for the resolution of political disputes? Is the Constitution neutral with respect to political economy? Justice Oliver Wendell Holmes famously suggested as much in his Lochner dissent. "[A] constitution...
The Political Economy of the Original Constitution
INTRODUCTION There seems to be little dispute that the original Constitution of the United States--and by "original Constitution" I mean the document drafted in 1787 and ratified, along with its first Ten Amendments, in 1789 and 1791 (1)--was an...
U.S. Intelligence in the Wake of September 11: The Rise of the Spy Commando and Reorganized Operational Capabilities
As the nation witnesses the tenth anniversary of the attacks on the World Trade Center and the Pentagon, it might be worthwhile to assess the steps the United States has taken since the passage of the Authorization for Use of Military Force (1) and...
What Would Hamilton Do?
On July 14, 1804, Gouverneur Morris stood by an open coffin at the front of Trinity Church in Manhattan and addressed a massive crowd that filled every nook of the sanctuary and spilled out into the street of lower Broadway. (1) Morris had been one...