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. 35, No. 3, Summer

Arbitration, Class Waivers, and Statutory Rights
Congress passed the Federal Arbitration Act (FAA) in 1925 to counter widespread judicial refusal to enforce arbitration agreements. (1) The courts were not necessarily hostile to arbitration of driven by ideology. Often, they considered themselves...
Hosanna-Tabor and the Ministerial Exception
I. THE FACTS A. The Facts Relevant to the Ministerial Exception B. The Facts Relevant to Whether There Was Discrimination II. FRAMING THE CASE IN THE SUPREME COURT III. THE LEGAL ARGUMENTS A. Vocabulary B....
Meet the New Boss: Continuity in Presidential War Powers?
This panel discussion asks us to consider continuities in the exercise of presidential war powers from the administration of George W. Bush to the administration of Barack Obama. I agree to a large extent with what has become conventional wisdom-that...
Preface
The upcoming presidential election and actions of the current presidential administration have sparked numerous debates about the proper role of government in areas such as the economy, national security, and healthcare, among others. The 2011 Federalist...
Reflections on Hosanna-Tabor
The unanimity and the smooth, no-heavy-lifting style of Chief Justice John Roberts's opinion in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (1) might give the impression that it was not a difficult case under past doctrine. Not so....
The Availability of Common Law Privileges for Witnesses in Congressional Investigations
INTRODUCTION I. CONGRESSIONAL INVESTIGATIVE AUTHORITY II. CONGRESSIONAL RECOGNITION OF PRIVILEGES A. Enforcement Power in Investigations B. Privileges 1. Common Law Privileges Ate Not Constitutionally...
The Constitutionality of the Patient Protection and Affordable Care Act: Swimming in the Stream of Commerce
In March of 2010, Congress enacted the Patient Protection and Affordable Care Act (1)--to which I will refer simply as "the Act"--to cope with what Congress believed was a crisis in the $2.5-trillion healthcare industry, which accounts for about 17%...
The Ethics of Opposing Certiorari before the Supreme Court
I. THE UNIQUE ETHICAL DILEMMA OF OPPOSING CERTIORARI II. EVIDENCE OF THE ETHICAL DILEMMA IN OPPOSING CERTIORARI A. Supreme Court Experts Discuss the Conflict 1. Survey: Question One 2. Survey: Questions Two...
The Patient Protection and Affordable Care Act and the Breadth and Depth of Federal Power
It is ah honor, especially for a graduate of Harvard Law School, to be in a debate with Professor Tribe. Professor Tribe and I certainly agree about much of the background of the Patient Protection and Affordable Care Act (the Act) (1), although there...