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. 3, Summer

Abandoning Bedrock Principles? the Musgrave Amendment and Federalism
Activist judges ... have begun redefining marriage by court order, without regard for the will off the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their...
Comments on War
I. LAW V. JUSTICE Many theologians, ethicists, political scientists and occasionally even international lawyers would like to revive the "just war" (bellum justum) doctrine in present-day international law. This doctrine was prevalent in the writings...
Ethical and Legal Dimensions of the Bush "Preemption" Strategy
We will cooperate with other nations to deny, contain, and curtail our enemies' efforts to acquire dangerous technologies. And, as a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed....
Factors in War to Peace Transitions
Situations of international armed conflict regularly give rise to some misunderstandings with regard to the applicable law and its interpretation. This especially holds true if these misunderstandings are reinforced by statements of a purely political...
Forcible Antipsychotic Medication and the Unfortunate Side Effects of Sell V. United States, 539 U.S. 166, 123 S.Ct. 2174 (2003)
The right to refuse medical treatment is a constitutionally protected liberty which has long been recognized in the common law as an important element of individual autonomy. (1) Yet the exercise of this right has traditionally been limited to individuals...
Humanitarian Intervention and International Law
Nothing seems to have divided international lawyers as much in recent years as the question of humanitarian intervention. Discussions on the subject seem to produce an explosive mixture of ethics, politics, and law; and it is not always clear where...
Is Regulation Good for You?
Will all federal regulations soon pass a benefit-cost test? If the OMB's 2003 report is any indicator, the answer may be yes-at least for some categories of regulations. Applying the midpoint of OMB's estimates for quantified costs and benefits of...
Just Peace and the Asymmetric Threat: National Self-Defense in Uncharted Waters
I. PROBLEMS CONCERNING JUST WAR A. Waging War B. Waging War Against Non-State Actors C. Preemptive Strikes 1. Timing of Preemptive Strikes 2. Rational Decisions Leading to Preemption D. Applying Just War to the Current Problem...
Operation Iraqi Freedom: Legal and Policy Considerations
On the eve of Operation Iraqi Freedom, I was asked by Dr. Laurie Mylroie to write a 5,000-word legal defense of the campaign to remove Saddam Hussein from power by force to appear in a new book she was writing. (1) It took me 15,000 words to even summarize...
Rediscovering International Law through Dialogue Rather Than Diatribe: Reflections on an International Legal Conference in the Aftermath of Operation Iraqi Freedom
I. INTRODUCTION The articles in this symposium were among the many presented by distinguished scholars and policymakers who attended the Ninth Annual Joint United States European Command and Federal Republic of Germany Ministry of Defense Legal...
Unprincipled Family Dissolution: The American Law Institutes Recommendations for Spousal Support and Division of Property
I. INTRODUCTION A. Why Serious Reform of Family Law Is Needed B. Basic Flaws in the Reporters' Response C. The Reporters' Failure to Reign In Judicial Discretion II. THE REPORTERS' RATIONALES FOR "COMPENSATORY PAYMENTS" A. Compensation for...
U.S. Security Strategies: A Legal Assessment
In less than five years, the United States has participated in three major military campaigns, each an apparent departure from then-prevailing use-of-force paradigms. NATO conducted the first, Operation Allied Force, in 1999, to end abuse of the Kosovar...