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. 29, No. 3, Summer

An Economic Assessment of Same-Sex Marriage Laws
This Article argues that marriage is an economically efficient institution, designed and evolved to regulate incentive problems that arise between a man and a woman over the life cycle of procreation. As such, its social and legal characteristics will...
Before Roe V. Wade: Judge Friendly's Draft Abortion Opinion
It is well known that Henry J. Friendly was one of the greatest judges in our nation's history. (1) Along with Holmes and Brandeis and Learned Hand, he was certainly one of the most brilliant. What is not known is that in 1970, three years before Roe...
Defining the Court's Role as Faithful Agent in Statutory Interpretation: Exxon Mobil Corp. V. Allapattah Services, Inc
The Supreme Court has long failed to provide guidance to lower courts as they seek to interpret the meaning of ambiguous congressional enactments. Thus it was no surprise that after Congress passed the Judicial Improvements Act of 1990, (1) courts...
Federalism on Ice: State and Local Enforcement of Federal Immigration Law
I. INTRODUCTION In October 2002, Lee Malvo, a young illegal alien from Jamaica, who along with John Allen Muhammed became known as the "D.C. Snipers," went on a deadly shooting spree in the Washington, D.C. area. (1) From 1996 to 1999, Angel Resendiz,...
Flexible Standards, Deferential Review: Daubert's Legacy of Confusion
I. INTRODUCTION Expert evidence--particularly expert scientific evidence--has long been thought to require special treatment in the courtroom. (1) Concern about "junk science" and fear that jurors will be easily impressed by such evidence are two...
Preface
This final issue of Volume 29 begins with a proposal for U.S. Supreme Court term limits by Professors Steven Calabresi and James Lindgren. Their Article presents empirical evidence that since 1970, Supreme Court Justices have served dramatically longer...
Term Limits for the Supreme Court: Life Tenure Reconsidered
INTRODUCTION I. THE NEED FOR REFORM: THE EXPANSION OF LIFE TENURE A. The Expansion of Life Tenure Documented B. Periodization and Related Empirical Issues C. Explaining the Trends in Life Tenure D. Consequences...
The Ideological Stakes of Eliminating Life Tenure
Professors Calabresi and Lindgren have written the strongest attack yet on life tenure for Supreme Court Justices. I congratulate them on their effort and am grateful for the chance to offer some comments on it. I saw a previous draft of their paper...
The Making of a New Copyright Lockean
I. INTRODUCTION: TWO FATAL FLAWS A. The Ubiquity of Lockean Justifications in Copyright Discourse B. A Rejoinder to Contemporary Copyright Lockeans: The Two Fatal Flaws II. INDISPUTABLE LOCKEAN COPYRIGHT A. Liberty of...
Toward a Basal Tenth Amendment: A Riposte to National Bank Preemption of State Consumer Protection Laws
Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but also to their state-chartered...
Uncovering Coherence in Compelled Subsidy of Speech Doctrine: Johanns V. Livestock Marketing Ass'n
A large number of agriculture products are generically advertised through federal or state-led promotion programs funded by mandatory assessments ("checkoffs") imposed on producers. (1) Since their inception in the 1980s, these checkoff programs have...
Unjustly Usurping the Parental Right: Fields V. Palmdale School District
The right of a parent to control his child's upbringing is one of the few fundamental rights recognized by courts as protected under the doctrine of substantive due process. (1) Rooted in vague pronouncements made in two cases decided in the 1920s,...