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. 1, Winter

A Founder's Retrospective: The Journal at 30 Years
As the Harvard Journal of Law & Public Policy celebrates its 30th anniversary, a brief reflection upon the Journal's history and achievements seems appropriate. The environment at Harvard and most law schools in the mid-1970s was very different...
Dred Scott Revisited
I. It has been many years since I first wrote that the American Revolution was, at once, an event in time and an idea out of time. (1) Lincoln meant no less when he wrote that Jefferson enshrined in the Declaration of Independence "an abstract truth,...
Enemy Combatants and a Challenge to the Separation of War Powers in Al-Marri V. Wright
Few legal issues are more controversial today than the scope of the President's authority to detain individuals as enemy combatants. Although that enormous power is described nowhere in the Constitution, it was "the practice of our own military authorities...
Gay Sex and Marriage, the Reciprocal Disadvantage Problem, and the Crisis in Liberal Constitutional Theory
There is nothing unusual about constitutional controversy, but some disagreements, typified by the argument over constitutional protection for gay sex and marriage, go beyond ordinary differences of opinion. Some opponents of constitutional protection...
Government Promotion of Moral Issues: Gambling, Smoking, and Advertising
What makes gambling, smoking, and advertising and the encouragement of those activities "moral" issues? The use of the word "moral" should prompt the question: From what is "moral" being distinguished? This Essay tries to avoid use of the word because...
How to Reverse Government Imposition of Immorality: A Strategy for Eroding Roe V. Wade
The topic of this Symposium is the relationship between law and morality. The essays in this volume adeptly explore the theory of this relationship, track its historical path, and address pressing legal and moral issues of our time. The very basics...
Justices in the Jury Box: Video Evidence and Summary Judgment in Scott V. Harris
Some scholars have expressed concern that judges are encroaching on the fact-finding role of the jury through the use of summary judgment. (1) This concern is more acute in cases that turn on fact-specific inquiries, such as lawsuits where the defense...
Marriage Facts
Do constitutional norms, particularly of equality and liberty, require the redefinition of marriage from the union of a man and a woman to the union of any two persons? In the present judicial contest over this issue, the real dispute is not over principles...
Methodology, Proportionality, Equality: Which Moral Question Does the Eighth Amendment Pose?
The words of the Eighth Amendment have a history much longer than the life of the Amendment itself. When the First Congress chose to include those words in the United States Constitution's Bill of Rights, the assembled legislators were appropriating...
Moral Choices, Moral Truth, and the Eighth Amendment
What passes for normative scholarship in the law schools is often little more than making public the topography of the author's mind. I suppose this practice does have a certain appeal akin to the great national fascination with reality shows these...
Moral Duty and the Rule of Law
In his immortal play A Man for All Seasons, Robert Bolt provides a fictional account of an argument between Sir Thomas More, who served as the Chancellor of England and would later become the patron saint of lawyers and judges, and his son-in-law,...
Morality in Eighth Amendment Jurisprudence
INTRODUCTION Morality in Eighth Amendment jurisprudence is but one aspect of a more general topic: the use of moral reasoning by judges in American constitutional interpretation. Seeing the role of moral reasoning through the prism of the Eighth...
Natural Law
Oliver Wendell Holmes, the legal philosopher and judge whom Richard Posner has, with admiration, dubbed "the American Nietzsche," (1) established in the minds of many people a certain image of what natural law theories are theories of, and a certain...
On the Foundations and Nature of Morality
INTRODUCTION Remarks on so vast a topic as the foundations and nature of morality must be focused by the subject with which the Symposium is concerned--namely, the relationship between law and morality. Insofar as half of "law and morality" is "morality,"...
"Play in the Joints": The Struggle to Define Permissive Accommodation under the First Amendment
INTRODUCTION In the two decades since the Supreme Court left open the door for permissive religious accommodation in Employment Division v. Smith, (1) the Court has only obscured the doctrine further by creating multiple and overlapping analytical...
Preface
From the first day of classes, students at many American law schools encounter an insistence that systematic and rigorous analysis of the law requires "the separation of law and morality." In such a basic form, however, this separation thesis--generally...
Saying What the Law Should Be: Judicial Usurpation in Al-Marri V. Wright
Al-Marri v. Wright (1) is the most recent case in the struggle to define who qualifies as an enemy combatant in the Global War on Terror. In Al-Marri, the Fourth Circuit, in contrast with its previous ruling in Padilla v. Hanft, (2) found that the...
The Federalist Approach to the First Amendment
In this Essay, I propose that the First Amendment should be applied much more stringently against the federal government than it is against the States. Under this view, the federal government should be subject to severe restrictions under the First...
The Morality of First Amendment Jurisprudence
Many people argue that government cannot, or should not, try to dictate morality. (1) But the judiciary, particularly the United States Supreme Court, has dictated immorality through First Amendment jurisprudence. What has achieved greater First Amendment...
What Is the Government's Role in Promoting Morals? ... Seriously?
In thinking about the government's proper role in promoting morals, it is helpful first to understand the nature of the disagreement. Part I of this Essay examines what is commonly meant by--as the great Lon Fuller described it--the "morality of law."...
Why Phyllis Schlafly Is Right (but Wrong) about Pornography
Phyllis Schlafly is wrong about the regulation of pornography, but her views need to be taken more seriously than they typically are in the overwhelmingly liberal academy. She represents an important tradition in thinking about gender issues, and she...