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. 36, No. 1, Winter

American Executive Power in Historical Perspective
During the course of almost any presidential administration, certain White House and cabinet-level decisions almost inevitably will catalyze intense controversy about the scope of executive power. My aim here is to offer some context for such discussions...
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Applying the Holder Standard to Speech That Provides Material Support to Terrorism in United States V. Mehanna
In April 2012, Tarek Mehanna was convicted and sentenced to seventeen and a half years in federal prison for providing "material support" to al-Qaeda. (1) During his trial, the prosecution alleged that Mehanna traveled to Yemen in an unsuccessful attempt...
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Can Technological Innovation Survive Government Regulation?
In this Article, I will offer a few observations on the troublesome relationship between technological innovation and government regulation. That relationship is neither simple nor linear. In many instances, regulation is strictly necessary because...
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Congressional Abdication: Delegation without Detail and without Waiver
There has been an abdication of sorts by Congress--too much delegation with too little guidance, too little oversight, and with unclear waiver authority, and this delegation has led to enormous uncertainty in the business community. This uncertainty,...
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Corralling Capture
Regulatory capture is an idea at the center of virtually any discussion of the appropriate balance between Congress and administrative agencies. It has echoed throughout the proceedings of this conference. But it is also much-abused. So I want to use...
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Incorporation by Reference in an Open-Government Age
IV. PROCEDURAL AND DRAFTING ISSUES OFR regulations and Chapter six of the DDH (296) establish the policies and procedures agencies must follow to secure OFR approval to publish a rule that incorporates by reference. These requirements provide that...
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On the Majesty of the Law
In the choice of my topic, I unknowingly filched the title of Justice Sandra Day O'Connor's memoirs. I meant to call upon what is awesome and venerable in the law, as I think the good Justice did as well. Majesty is not in our style of democratic informality,...
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Preface
If there has been a watchword in the federal government in the last several years, it has been this: regulation. The Obama Administration's hallmark pieces of legislation, including the Dodd-Frank Act and the Patient Protection and Affordable Care...
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Pre-"Originalism"
CONCLUSION Those who maintain that the Supreme Court historically was an Originalist Court prior to the Warren and Burger Courts have either looked at data sets that paint a very different picture than that we have compiled, or, more likely, have...
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President Obama and the Framers' Presidency
Legal scholarship on the presidency is moving toward more focus on constitutional design rather than political legitimacy or historical authenticity. But even if we were to design the presidency anew today, we might well keep the form of the original...
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"Pride Ignorance and Knavery": James Madison's Formative Experiences with Religious Establishments
I. A WEAKENING ANGLICAN HEGEMONY A. The Separate Baptists in Virginia B. Separate Baptist Activity near Madison's Home C. Persecution of Separate Baptists II. THE EDUCATION OF JAMES MADISON A. Boarding School, Tutoring, ...
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Reconsidering the Modern Hanoverian King
Perspectives on executive power might not break down along the usually predictable liberal-conservative lines. With regard to the recent tendency for the executive branch to rely increasingly on presidential "super-assistants," often referred to by...
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Regulation and Technology
This Article consists of some general observations and a few examples that illustrate them. First, technology can benefit tremendously from government involvement. Regulation may be part of that involvement, but thinking just in terms of regulation...
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Resurrecting Free Exercise in Hosanna-Tabor Lutheran Church & School V. EEOC
Since the rise of federal nondiscrimination laws, every federal court of appeals has recognized a "ministerial exception" that protects some religious organizations from certain kinds of suits by employees. (1) Beyond that baseline, appellate opinions...
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The Case of the Missing Argument: The Mysterious Disappearance of International Law from Juvenile Sentencing in Miller V. Alabama
Last term, the United States Supreme Court took a bold step away from a half century of jurisprudence by refusing to cite international law to interpret the Eighth Amendment's ban on cruel and unusual punishments. In the past, the Court has tended...
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The Perilous Position of the Rule of Law and the Administrative State
I. THE RULE OF LAW IN DISTRESS Recent scholarship in the academy has turned again to an intensive study of the rule of law in the modern administrative state, a topic which I have addressed in detail in my book Design for Liberty: Private Property,...
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The Regulatory Turn in IP
History shows technologies flourish where market entry is free. (1) If people are free to come up with a new idea, completely different than anything done before, and launch it into the marketplace, society benefits, people make a lot of money, and...
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The Rule of Law and the Inevitability of Discretion
At least two things are implicit in the title to this panel, "The Rule of Law and the Administrative State": first, there is something we can agree on called the Rule of Law; second, this Rule of Law is compromised in practice because of the advent...
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