Academic journal article Harvard Journal of Law & Public Policy
This final issue of Volume 29 begins with a proposal for U.S. Supreme Court term limits by Professors Steven Calabresi and James Lindgren. Their Article presents empirical evidence that since 1970, Supreme Court Justices have served dramatically longer tenures, and argues that such lengthened tenure departs from the Framers' intent. Their solution is a system of staggered, nonrenewable eighteen-year terms, enacted by constitutional amendment. Exploring the ideological motivations that underlie the Calabresi-Lindgren proposal, Professor Ward Farnsworth offers a brief reply in support of life tenure.
Professor Lior Zemer examines Locke's lesser-known Liberty of the Press to challenge the traditional understanding of Locke's labor theory of property as applied to intellectual property. Zemer contends that Locke's theory of knowledge, in contrast to the Romantic notion of author as creator, supports viewing intellectual property as a collective product, suggesting that less robust copyright protections should apply.
Professor Douglas Allen presents an economist's view of the same-sex marriage debate, arguing that traditional marriage is an economically efficient institution. He chronicles the inefficiencies introduced by the no-fault divorce regime and, noting that proponents of same-sex marriage rely on arguments similar to those of divorce reformers, predicts that same-sex marriage may produce similarly adverse unintended and unanticipated consequences.
A survey of the preemption of state consumer protection laws by federal banking regulations prompts Professor Keith Fisher to call for a reinvigoration of the Tenth Amendment. Noting that banking regulation has always been a delicate matter of federal-state balance, he proposes a framework for analysis of such regulations that would aid courts in enforcing the Tenth Amendment's protection of state sovereignty.
Next, we present the Fifth Annual Barbara K. Olson Memorial Lecture from the Federalist Society's 2005 National Lawyers Convention. Judge A. Raymond Randolph discusses a never-published opinion by Judge Henry J. Friendly that would have denied a Griswold-based abortion rights claim three years before Roe v. …