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. 27, No. 1, Fall

A Crisis of Caring: A Catholic Critique of American Welfare Reform
INTRODUCTION The current deterioration of the American economy is bringing new attention to the problem of poverty in the United States. After falling over the last few years, the number of Americans living in poverty has begun to rise once again....
Beyond State Farm: Due Process Constraints on Noneconomic Compensatory Damages
INTRODUCTION I. THE HISTORY OF JUDICIAL REVIEW OF NONECONOMIC COMPENSATORY DAMAGES AWARDS A. The Origins of Judicial Review of Damages Awards for Excessiveness in the English Courts B. English Decisions Recognize the Conceptual Differences...
Davey's Plea: Blaine, Blair, Witters, and the Protection of Religious Freedom
I. WITTERS AS PRECEDENT A. The First Amendment B. The Limits of Federalism II. WASHINGTON'S VISION AS NATIONAL STANDARD A. The Washington Constitution B. Relevant Litigation III. DEFINING RELIGIOUS FREEDOM A. The Secular Court B. A Matter of Fairness CONCLUSION ...
Dignity and Desert in Punishment Theory
Once upon a time, human dignity played a large role in the theory of punishment. Then punishment fell victim, both in theory and in practice, to the central philosophical mistake of the twentieth-century. (1) A criminal justice system based on human...
Does Technology Spell Trouble with a Capital "T"? Human Dignity and Public Policy
In recent years, human dignity has attracted considerable attention as a policy standard. From bioethics and constitutional law to torts and the regulation of the Internet, human dignity has seemingly become the most salient touchstone for assessing...
Inevitable Mens Rea
"Even a dog distinguishes between being stumbled over and being kicked." (1) INTRODUCTION The thesis of this essay is simple: As long as we maintain the current conception of ourselves as intentional and potentially rational creatures, as people...
Our Broken Judicial Confirmation Process and the Need for Filibuster Reform
To vote without debating is perilous, but to debate and never vote is imbecile. --Senator Henry Cabot Lodge (1) Filibustering originally referred to mercenary warfare intended to destabilize a government. --Catherine Fisk & Erwin Chemerinsky...
Pope John Paul II and the Dignity of the Human Being
Since his election in 1978 as the Successor to the Apostle Peter, His Holiness Pope John Paul II has remained one of the principal protagonists on the global stage for the dignity and value of every human being. (1) Although the popular press and media...
Preface
This first issue of our twenty-seventh volume continues one of the Journal's oldest and proudest traditions: the publication of papers from the Federalist Society's National Student Symposium. Held amidst Notre Dame's stark winter beauty, this year's...
Religious Liberty and Human Dignity: A Tale of Two Declarations
"We agree on these rights," Jacques Maritain once stated, "provid[ed] we are not asked why." (1) He was referring to his work on the 1946 UNESCO Committee on the Theoretical Bases of Human Rights, but he might just as well have been referring to the...
Retribution: The Central Aim of Punishment
When I worked for the Manhattan District Attorney's Office in the early 1980s, criminal sentences were consistently and dramatically too lenient. Though those years marked the ebb tide for the rehabilitative ideal of punishment and indeterminate "zip-to-ten"...
Roe and the New Frontier
INTRODUCTION I. ROE'S LEGACY: OF RIGHTS AND PERSONHOOD A. Framework of Roe and Its Progeny 1. Roe v. Wade 2. Webster v. Reproductive Health Services 3. Planned Parenthood of Southeastern Pennsylvania v. Casey 4. Stenberg v....
Social Welfare, Human Dignity, and the Puzzle of What We Owe Each Other
In a recent book about the American anti-poverty movement, Joel Schwartz argues that the moral improvement of the poor was a central goal of anti-poverty reformers in the 19th and early 20th centuries. Although moral reform was considered intrinsically...
Struck out Looking: Continued Confusion in Eighth Amendment Proportionality Review after Ewing V. California
This past Term, California's "three strikes" law withstood two challenges in the Supreme Court. In Ewing v. California, the Court held that a sentence of 25-years-to-life imposed on a recidivist offender convicted of stealing three golf clubs worth...
The Diversity Lie
Last Term, the Supreme Court considered the racial preference plans used by the University of Michigan's undergraduate and law schools. (1) In its opinions upholding the law school program and striking down the undergraduate program, it resolved a...
The Limits of International Law in Protecting Dignity
My perspective on international law and human dignity can be simply stated: International law, as currently constituted, is likely to fail to advance human dignity. The vehicles most relied upon to advance this great goal--human rights treaties--are...
The Welfare Debate: Getting Past the Bumper Stickers
Welfare reform has been the recurrent subject of heated debate in the United States, culminating in far-reaching legislation in 1996.(1) Taking the measure of that legislation requires attention both to the broader context of which welfare policy is...
Today's Senate Confirmation Battles and the Role of the Federal Judiciary
It is an honor for me to be with you at the 118th commencement of the Lewis & Clark Law School here in Portland, Oregon. (1) Honored though I am, it is nevertheless hard for me to believe, as I stand before you on this most joyous occasion, that...
What We Can Learn about Human Dignity from International Law
International law was once assumed to regulate the rights and duties of states in their mutual interactions. As such, it might seem far removed from philosophic reflection on human dignity. In the contemporary world, however, "human dignity" has been...