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. 1, Winter

Achieving Equal Treatment through the Ballot Box
Since the founding of the United States, the relationship between the citizens and their government has been central to the definition of our nation. We were established as a nation of individuals who rely on certain "self-evident truths" (1) to guide...
An Interpretivist Judge and the Media
The debate over the role of the judiciary has been particularly intense in Michigan for the past decade. With four of the seven justices on the Michigan Supreme Court committed to a traditional jurisprudence--one that views the responsibility of the...
A Response to Professor Primus
Professor Richard Primus and I participated on a panel before the National Federalist Society Student Symposium at the University of Michigan Law School concerning the media's coverage of the judiciary, (1) and my assigned remarks, reprinted in this...
Counting States
The United States Supreme Court frequently bases federal constitutional doctrine on state law, (1) often doing so by counting states' laws in a variety of doctrinal contexts to determine the legislative consensus among the States. For instance, state...
Inventing the "Right to Vote" in Crawford V. Marion County Election Board
Although it has become almost axiomatic that the franchise is a "fundamental right" (1) possessed by all Americans, it remains very much open to question whether the Constitution was ever intended to bestow the broad-based right envisioned by the Supreme...
Judicial Review, Local Values, and Pluralism
I. "It is," the Twenty-Seventh Annual National Federalist Society Student Symposium program reports, "a basic assumption of federalism that individual communities can be different; they may have different values, and they will certainly have different...
Law and Economics: Realism or Democracy?
Is law and economics anti-democratic? One hears complaints from many quarters that law and economics is a form of technocracy that cuts off legitimate debate and suppresses other important values that people hold dear. (1) On this view, law and economics...
Limits of Interpretivism
INTRODUCTION I. INTERPRETIVISM AND TEXTUALISM II. TEXTUALISMAND RULES III. TEXTUALISM AND ORIGINALISM IV. ORIGINALISM AND CONSTRAINT V. ORIGINALISM AND TRADITION CONCLUSION INTRODUCTION Justice Stephen Markman sits on the Supreme Court of my home...
Manliness and the Constitution
INTRODUCTION I. THOMAS HOBBES: HOW HYPERMASCULINITY NECESSITATES ABSOLUTE MONARCHY II. ROBERT FILMER: THE AUTHORITY OF THE FATHER AND THE MANLY MONARCH III. LOCKE'S ATTACK ON PATRIARCHALISM AND ABSOLUTE MONARCHY IV. THE AUTHORITY OF...
Marketing Pharmaceutical Products in the Twenty-First Century: An Analysis of the Continued Viability of Traditional Principles of Law in the Age of Direct-to-Consumer Advertising
INTRODUCTION I. MARKETING AND REGULATION OF PHARMACEUTICALS FROM PAST TO PRESENT A. Concepts of Product Mislabeling and Pre-Market Regulation B. Establishment of the Modern Regulatory Regime for Approval and Marketing...
Merit Selection: Choosing Judges Based on Their Politics under the Veil of a Disarming Name
Given the dispute in this country about the proper role of judges and how the people perceive what judges are doing, any sophisticated observer must conclude that judicial selection in the United States today is "political." (1) People, whether or...
Norm Change or Judicial Decree? the Courts, the Public, and Welfare Reform
The topic for this panel--the relationship between community values and judicial decision making--calls to mind Supreme Court cases on high-profile issues that have provoked strong criticism from the public. Decisions regarding church-state relations,...
Political Responses to Supreme Court Decisions
I. REPRESENTATIVE DEMOCRACY AT THE CONSTITUTIONAL CONVENTION Direct democracy, as Professor Clark has pointed out, is not necessarily the people talking. (1) Quite appropriately, he has focused on the ways in which representative democracy--the...
Preface
One of the foundational questions of American constitutional inquiry since the Revolution has been the proper relationship between the People and their government. The Framers arrived in Philadelphia early in the summer of 1787 with various conceptions...
Public Displays of Affection ... for God: Religious Monuments after McCreary and Van Orden
INTRODUCTION I. MCCREARY AND VAN ORDEN A. McCreary B. Van Orden II. REFLECTIONS ON MCCREARYAND VAN ORDEN III. TWO "PURPOSE" APPROACHES AFTER MCCREARY AND VAN ORDEN A. Skeptical Approach: Buono I-IV B. Purpose-Sensitive...
Returning to the PruneYard: The Unconstitutionality of State-Sanctioned Trespass in the Name of Speech
In PruneYard Shopping Center v. Robins, (1) the United States Supreme Court held that the owner of a private shopping center who was required by a state court to grant political solicitation and speaking rights to strangers had thereby suffered neither...
Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation
INTRODUCTION I. TRADITION KNOWN TO THE FRAMERS AS EVIDENCE OF ORIGINAL MEANING A. Anachronism: The Changed Circumstances Problem B. Cherry-Picking Problems: How Is Tradition Interrogated and Weighed? 1. Multiple...
The Merits of Merit Selection
I. TRANSITIONS IN JUDICIAL SELECTION METHODS A. From Appointment to Election B. From Partisan to Non-Partisan Elections C. From Non-Partisan Elections to Merit Selection D. Alternatives to Merit Section II. THE CHALLENGE...
Tools against Terror: All of the Above
With the impending inauguration of a new President, now is an opportune time to assess whether the homeland is safer today than on the morning of September 11, more than seven years ago. It is also a fitting time to discuss the implications of that...
Voting with Your Feet Is No Substitute for Constitutional Rights
I. THE DOWNSIDE OF VOTING WITH YOUR FEET The organizers of this Symposium (1) gave each panel a brief summary of the panel's intended topic. I want to take a part of that summary as the subject of my commentary: "It is a benefit of Federalism that...