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. 31, No. 2, Spring

A New Architecture of Commercial Speech Law
INTRODUCTION I. THE LINGERING PROBLEM OF COMMERCIAL SPEECH--THE MEANING OF CENTRAL HUDSON II. THE CONSTITUTIONAL CASE FOR PROTECTING COMMERCIAL SPEECH A. The Value of Commercial Speech 1. The Democratic Rationale 2....
A "Plausible" Explanation of Pleading Standards: Bell Atlantic Corp. V. Twombly
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a plaintiff's complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." (1) Fifty-one years ago, in Conley v. Gibson, (2) the Supreme...
Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions
The right to exclude has long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what an owner's right to exclude means and the forms in which this right might...
Judge Bork, Consumer Welfare, and Antitrust Law
The Sherman Antitrust Act of 1890 broadly prohibits contracts, combinations, and conspiracies in "restraint of trade" and makes it unlawful "to monopolize" any line of commerce. (1) The open-textured nature of the Act vests the judiciary with considerable...
Judicial Review of Local Land Use Decisions: Lessons from RLUIPA
This Article questions whether traditional judicial deference to local land use regulators is justified in light of the highly discretionary, and often corrupt, modern system of land use regulation. In 2000, Congress determined, first, that unlike...
Lopez, Morrison, and Raich: Federalism in the Rehnquist Court
I. FEDERALISM: VALUABLE, BUT NOT NECESSARILY JUDICIALLY ENFORCEABLE Federalism, as distinguished from pure nationalism, is an attempt to create a form of government that has the advantages, at least in part, of both centralization and local autonomy....
Of Inkblots and Originalism: Historical Ambiguity and the Case of the Ninth Amendment
Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, (1) the Ninth Amendment has been a flashpoint in debates over the merits of originalism as an interpretive theory. Judge Bork's comparison of interpreting the Ninth Amendment...
On the Hypotheses That Lie at the Foundations of Originalism
Constitutional law, as taught in American law schools today, is primarily a course in religious indoctrination. Stories are told about the gods and heroes that in part convey information, but mainly shape the character of the students, teaching them...
Partial-Birth Abortion and the Perils of Constitutional Common Law
INTRODUCTION I. THE "CONSTITUTIONAL" LAW GOVERNING ABORTION A. The Right of Privacy B. The Right to Abortion 1. Roe v. Wade 2. The Reaction to Roe 3. Refining Roe 4. Analyzing the Post-Roe Cases 5. Planned...
Preface
Few jurists or scholars have had as much influence over the shape of contemporary legal thinking as Robert Bork. More than any position he has occupied--including Yale Law School Professor, United States Solicitor General, Acting U.S. Attorney General,...
Render Unto Caesar That Which Is Caesar's, and Unto God That Which Is God's
It is a great pleasure to contribute to this Symposium with such distinguished scholars as Professors Robert George and Ilya Somin, and to comment on Judge Bork's thought-provoking book, Slouching Towards Gomorrah. (1) Many of the contributors to this...
The Borkean Case against Robert Bork's Case for Censorship
The primary purpose of this Essay is to criticize Robert Bork's advocacy of government censorship of American culture. However, I come as much to praise Judge Bork as to criticize him. To my mind, the principles advanced in his book, The Antitrust...
The Chicago School and Exclusionary Conduct
One panel is not remotely enough to discuss Robert Bork's contributions to antitrust, or even a small portion of his magnum opus, The Antitrust Paradox. (1) The essayists on this panel have carved off just a few slices. Mine is exclusionary practices-predatory...
The Course Correction a Century in the Making: Leegin Creative Leather Products, Inc. V. PSKS, Inc
Numerous sources pointed to the first full term of the Roberts Court as proof of a strong rightward tilt in the political orientation of the Supreme Court. (1) Drawing from disparate cases in areas ranging from election law (2) and free speech (3)...
The Misunderstood Relationship between Originalism and Popular Sovereignty
Since The Tempting of America was published, (1) many originalists, seeking to justify their preference for adhering to the original meaning of the Constitution, have taken up the banner of popular sovereignty. (2) The Constitution, we are told, was...
The Veil of Vagueness: Reasonableness Review in Rita V. United States
Three years ago, in United States v. Booker, (1) a 5-4 majority of the Supreme Court held that the Sentencing Reform Act of 1984 (SRA), (2) which required federal judges to impose sentences within the Federal Sentencing Guidelines (the Guidelines)...