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. 28, No. 1, Fall

Believing Six Improbable Things: Medical Malpractice and "Legal Fear"
"Alice laughed." "There's no use trying," she said; "one can't believe impossible things." "I daresay you haven't had much practice," said the Queen. "When I was your age, I always did it for half an hour a day. Why, sometimes I've believed as many...
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Case Comment: Roche V. Empagran
A central challenge of modern antitrust law is determining the extent to which U.S. antitrust law applies to actors in foreign countries. (1) Although foreign violations of U.S. antitrust law seem beyond the proper sphere of U.S. courts' subject matter...
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Environmental Perspectives: Moving toward a Market-Oriented Middle Ground
Environmental law is dominated by the orthodox environmentalist perspective. The orthodox perspective often treats the minority views expressed in this article as anti-environmental. Nothing could be farther from the truth, but there is little subtlety...
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Fear-Mongering Torts and the Exaggerated Death of Diving
I. INTRODUCTION The tort system is causing havoc, we are told. Skyrocketing malpractice premiums are driving physicians from practice. (1) Litigation is chilling the development of desperately needed new medicines, (2) enriching people who stupidly...
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Interest Groups, Power Politics, and the Risks of WTO Mission Creep
To its detractors, the WTO is an ominous international bureaucracy. (1) It is purportedly plagued by a democratic deficit that will gradually usurp the domestic regulatory prerogatives of sovereign states. (2) My presentation suggests that these concerns...
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Is Civil Litigation a Threat to Freedom?
Is civil litigation a threat to our freedom? Let me start by emphasizing the importance of the civil law system in the legal structure of a free society. Lawsuits are important in order to compensate the injured, to act as deterrents, and to provide...
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No More 'Cherry-Picking': The Real History of the 21st Amendment's (Section) 2
The policy question is clear: state laws that ban out-of-state direct shipping of wine but permit in-state wineries to ship directly hurt consumers and provide little to no off-setting public benefits, such as promoting temperance. (1) The legal question,...
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Preface
The first issue of Volume 28 of the Harvard Journal of Law & Public Policy includes a variety of perspectives from the participants in the Federalist Society National Student Symposium. Hosted at the Vanderbilt University School of Law, this year's...
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Private Property and the Politics of Environmental Protection
Private property plays two opposing roles in stories about the environment. In the story favored by most environmentalists, private property is the bad guy. (1) It balkanizes an interconnected ecosystem into artificial units of individual ownership....
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Property Rights and Environmental Regulation: The Case for Compensation
The right to acquire, use, and alienate property has long been regarded as a fundamental value in Anglo-American constitutional thought. (1) Historically, respect for private property was seen as providing the basis for individual autonomy and the...
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The Antidiscrimination Eighth Amendment
I. INTRODUCTION II. COLONIAL RECEPTION III. THE EIGHTH AMENDMENT IV. ADOPTION IN THE STATES V. IMPLICATIONS FOR INTERPRETATION VI. WHAT THE ENGLISH BILL OF RIGHTS DID VII. BLACKSTONE'S OPINION AND ITS AMERICAN RECEPTION VIII. THE CRUEL AND UNUSUAL ...
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The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to over Come the Filibuster
INTRODUCTION I. SENATE PROCEDURES GOVERNING DEBATE II. CREATION OF THE FILIBUSTER A. The "Dignified Senate" B. The Inadvertent Creation of the Opportunity To Filibuster C. The First Filibusters III. THE CONSTITUTIONAL OPTION...
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The Historical Origins of the Rule of Law in the American Constitutional Order
My topic in this essay is the historical foundations of the role of law in the American constitutional order. Where did the uniquely American commitment to the rule of law come from as an historical matter, and how can we copy it for export to countries...
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The New Federal Regulation of Corporate Governance
I. INTRODUCTION: HAS BUSINESS LAW BECOME PUBLIC LAW? Recent regulatory reforms, particularly the adoption of the Sarbanes-Oxley Act of 2002, (1) have led many commentators to argue that the federal government is improperly intruding into the traditional...
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The World Trade Organization as a Structure of Liberty
The World Trade Organization ("WTO") can become a force for limited government in our day, just as the Framers' Constitution was in theirs. First, the WTO has structural similarities to the original Constitution of the United States. The WTO enlarges...
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Threats in the Line of Duty: Police Officers and the First Amendment in State V. Valdivia and Connecticut V. Deloreto
The relationship between civilian and police officer occupies a unique position in First Amendment jurisprudence. The Supreme Court has intimated that words intended solely to harass ("fighting words"), excluded from First Amendment protection under...
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Tort Law for Federalists (and the Rest of US): Private Law in Disguise
The question posed for this panel reads as follows: Should tort law be a form of public regulatory law? My answer is no. What I mean by that will become clearer in a moment, but let me offer an immediate set of qualifications. I do not mean to dispute...
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Why Is Congress Still Regulating Noncommercial Activity?
INTRODUCTION In popular news media, the United States Court of Appeals for the Ninth Circuit is regularly characterized as left of the mainstream. Fox News commentator Bill O'Reilly once went so far as to say that "many of the federal judges sitting...
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