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. 32, No. 2, Spring

American Exceptionalism, the War on Terror, and the Rule of Law in the Islamic World
When some New York Law School students first decided to organize a Federalist Society chapter many years ago, they actually asked me to be their faculty advisor. Some will say that this shows how hard it is to find a conservative law professor. But...
An American Amendment
In two of the most controversial cases of the past decade, Roper v. Simmons (1) and Lawrence v. Texas, (2) the Supreme Court relied on foreign law to help determine the meaning of the United States Constitution. (3) This short Essay will explain why...
Answering the Critics of the Legal Case for the War on Terror
A policy argument often advanced by critics of the Bush Administration's legal policies with respect to the War on Terror is that civil liberties today are being unnecessarily sacrificed on the altar of public safety. (1) This claim usually has two...
Exceptionalism in a Time of Stress
The phrase "American exceptionalism" arouses strong feelings. For many Americans it encapsulates the best features of American life: political freedom, democracy, equality before the law, equality in social status, and equal economic opportunity. Not...
Neutrality in Liberal Legal Theory and Catholic Social Thought
INTRODUCTION I. FOUR KINDS OF LIBERAL NEUTRALITY II. FOUR COMMITMENTS IN CATHOLIC SOCIAL THOUGHT A. The Status of Rights in Catholic Social Thought 1. Rights as Less than Absolute 2. Rights and Duties 3. The Good and...
On Honor
Reflecting upon many years of government service, I am struck by the disappearance of a word that once was the coin of the realm: "honor." It was once the concept of honor against which men and women measured their governmental behavior. It restrained...
Preface
It has been almost 400 years since John Winthrop first described early colonial America as a shining City upon a Hill with the eyes of all the world upon her. Alexis de Tocqueville further enunciated this view when he described the Republic's special...
Restricting Experimental Use
Denying patent holders extensive control over experimental use of their technologies has been widely lauded as an essential facilitative component of the innovative process, one that is to be enthusiastically embraced and expanded. If one posits the...
Shifting Course in Admiralty: Exxon Shipping Co. V. Baker
The Admiralty Clause grants maritime jurisdiction to federal courts without establishing a particular substantive standard of rulemaking for those courts to follow. (1) Since Erie Railroad Co. v. Tompkins, (2) however, courts have required common-law...
The Separation of People and State
The subject of American exceptionalism, about which much has been written, is extremely complex. There is no simple way to describe all the ways in which America differs from the other nations of the world. Steven G. Calabresi provides a wonderful...
The Use and Abuse of Foreign Law in Constitutional Interpretation
This Article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can appropriately be used in constitutional interpretation, when it can be used, and what the stakes and parameters are in...
The Validity of Conditional Sales: Competing Views of Patent Exhaustion in Quanta Computer, Inc. V. LG Electronics, Inc
The doctrine of patent exhaustion limits the ability of a patentee to control the disposition of a patented article after the item is sold. In some instances, however, patentees may contract with buyers in order to exercise downstream control of patented...
Treaties, Execution, and Originalism in Medellin V. Texas
The unique structure of the United States government creates tensions for the country when it deals with the international community. Most notably, the sharing of sovereignty between the federal and state governments, and between the different branches...
Why Can't Martha Stewart Have a Gun?
INTRODUCTION I. FELON DISARMAMENT IN THE UNITED STATES: NOT SO "LONGSTANDING" OR BROAD II. AMERICAN PRECEDENT--OR NOT--BEFORE WORLD WAR I III. ENGLISH ANTECEDENTS, REAL AND ALLEGED A. "Forfeiture of All Goods" B. Common Law ...