Harvard Law Review

The Harvard Law Review is a journal published eight times a year (Nov.-Jun.) in Cambridge, Mass. Founded in 1887, its subject is law and legal scholarship. Its audience is comprised of lawyers, judges, educators, students and other professionals in the judicial system.

Articles from Vol. 120, No. 5, March

Administrative Law - Judicial Review of Agency Rulemaking - District of Columbia Circuit Vacates Securities and Exchange Commission's "Hedge Fund Rule"
ADMINISTRATIVE LAW -- JUDICIAL REVIEW OF AGENCY RULEMAKING -- DISTRICT OF COLUMBIA CIRCUIT VACATES SECURITIES AND EXCHANGE COMMISSION'S "HEDGE FUND RULE." -- Goldstein v. SEC, 451 F.3d 873 (D.C. Cir. 2006). Even the worst-run companies can take...
Affirmative Duties and Judges' Duties: United States V. Stockberger
After twenty-four years of judicial experience, Judge Richard Posner contrasted the "aggressive judge" with the "modest judge" in his 2005 Foreword in the Harvard Law Review. (1) When Professor Posner became Judge Posner in 1981, anyone familiar with...
Aimster and Optimal Targeting
INTRODUCTION Deeply embedded in the conventional legal mindset is a common law model of adjudication and liability premised on the ideal of bilateral corrective justice. The model begins with a harm suffered by a victim and inflicted by a wrongdoing...
A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections
An explosion of Eighth Amendment challenges to lethal injection protocols has struck the federal courts. The Supreme Court's recent decision in Hill v. McDonough, (1) which empowered prisoners to bring challenges to lethal injection procedures under...
A Right to Learn? Improving Educational Outcomes through Substantive Due Process
In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available...
Good Faith in Contract Performance: Market Street Associates Ltd. Partnership V. Frey
Contracts courses are notoriously traditional, with Hadley suing Baxendale (1) year after year and William E. Story, Sr., perpetually promising William E. Story, Jr., $5000 to refrain from drinking, smoking, swearing, or gambling until he is twenty-one....
Habeas Corpus - Voluntary Waiver - Fifth Circuit Declines to Permit Reinstatement of Waived Habeas Appeal
HABEAS CORPUS -- VOLUNTARY WAIVER -- FIFTH CIRCUIT DECLINES TO PERMIT REINSTATEMENT OF WAIVED HABEAS APPEAL. -- Wilcher v. Epps, No. 06-70043, 2006 WL 2986476 (5th Cir. Oct. 17, 2006), cert. denied, 127 S. Ct. 466 (2006). When a death row inmate...
Lex Loci Delictus and Global Economic Welfare: Spinozzi V. ITT Sheraton Corp
I. INTRODUCTION The traditional choice-of-law rule for tort was lex loci delictus--the law of the place where the plaintiff suffered the wrong. (1) Beginning with the legal realists in the 1920s, scholars (and later, courts) criticized the lex loci...
Not-So-Ordinary Judges in Ordinary Courts: Teaching Jordan V. Duff & Phelps, Inc
Everyone loves a brawl. And all the more so when the brawlers are smart, biting, literate debaters who routinely take wildly out-of-fashion positions. For a casebook editor trying to maximize adoptions, that makes Jordan v. Duff & Phelps, Inc....
On the Proper Magnitude of Punitive Damages: Mathias V. Accor Economy Lodging, Inc
I know Judge Posner mainly as a scholar--from his extraordinary and truly novel economically oriented writing on law and from our many interchanges over the years about economic analysis of legal issues. But I am aware that he also leads another full...
Original Meaning and Its Limits
Justice Scalia has prominently defended a version of originalism that demands adherence to the Constitution's original meaning and, moreover, construes the original meaning of value-laden language, such as "unreasonable" and "cruel," by reference to...
Partner, Shmartner! EEOC V. Sidley Austin Brown & Wood
What's in a name? For partners in today's mega law firms, apparently not much. Or at least that is what Judge Richard Posner held in a 2002 decision that continues to send shock waves through the plush corridors of America's elite law firms. (1) With...
Posner on Security and Liberty: Alliance to End Repression V. City of Chicago
Judge Richard Posner is a leading commentator on national security and terrorism. He has recently produced an overview of the constitutional aspects of national security law, (1) as well as a string of books on the optimal design of intelligence agencies...
Reforming the Food Safety System: What If Consolidation Isn't Enough?
I. INTRODUCTION In the fall of 2006, animal waste contaminated crop fields and infected ready-to-eat spinach with E. coli bacteria, resulting in three deaths and more than 200 illnesses. (1) Not long afterward, a salmonella outbreak in lettuce and...
Religion and the Burden of Proof: Posner's Economics and Pragmatism in Metzl V. Leininger
What governmental practices violate the prohibition against establishing religion in a society that prints "In God We Trust" on money and opens legislative sessions with prayer? To some, the legal treatment of Christianity in America smacks of prohibited...
Richard Posner, the Judge
Volumes have been written, and more volumes will be written, about Richard Posner, the legal scholar and thinker. About his development of the economic analysis of law, surely the most influential school of legal thought to have arisen in the second...
Satisfaction and Posner's Morin Opinion: Aliquando Bonus Dormitat Posnerus?
I. INTRODUCTION I have read and pondered Judge Richard Posner's judicial opinions and scholarship for many years. Over that time I have been nourished, informed, challenged, provoked, annoyed, angered, impressed, and delighted. I have been delighted,...
Statutory Pragmatism and Constitutional Structure
Judge Richard Posner's corpus of judicial opinions includes two now-classic defenses of countertextual statutory interpretation--one premised on the "imaginative reconstruction" of legislative designs and the other resting more overtly upon notions...
The Emerging Problem of Embedded Defenses: Lessons from Air Line Pilots Ass'n, International V. UAL Corp
How should courts regulate contract terms with nonshareholder constituencies that have an antitakeover effect? On one hand, contracts formed in the ordinary course of business would seem to be at the very core of operational decisionmaking, over which...
The Judicial Posner on Negligence versus Strict Liability: Indiana Harbor Belt Railroad Co. V. American Cyanamid Co
Does Richard Posner lead a double life as scholar and judge? Posner's prodigious and prolific scholarship, developing and applying the functionalist, rational approach (he might call it economic or pragmatic) in virtually every field of law, ranks...
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