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. 128, No. 1, November

Child Status Protection Act - Immigration
It is settled doctrine that agencies receive Chevron deference (1) when resolving statutory ambiguities. But what happens when a statute contains an apparent conflict between two otherwise clear provisions? Should the agency still receive Chevron deference...
Class Actions - Presumption of Reliance under SEC Rule 10b-5
To recover damages in a securities fraud class action under section 10(b) of the Securities Exchange Act of 1934 (1) (1934 Act), investors must prove that they relied on the defendant's misrepresentation in connection with the purchase or sale of a...
Clean Air Act - Cost Considerations
Air pollution has no respect for state borders. (1) Harmful pollutants generated by factories, power plants, and other sources in upwind states may travel hundreds of miles to reach downwind states, which receive no economic benefit in return for their...
Clean Air Act - Stationary Source Greenhouse Gas Regulation
In the face of congressional gridlock preventing the passage of comprehensive climate change legislation, the Environmental Protection Agency (EPA) has pursued climate change regulation under existing authority provided by the Clean Air Act (1) (CAA)....
Copyright Act of 1976 - Transmit Clause
In the late 1940s and early 1950s, a new industry of community antenna television (CATV) exploded. (1) By placing an antenna on top of a hill above a community and transmitting signals to subscribers' houses via coaxial cables, CATV companies provided...
Eighth Amendment - Cruel and Unusual Punishments - Defendants with Intellectual Disability
In 2002, the Supreme Court ruled in Atkins v. Virginia (1) that the Eighth Amendment prohibits the execution of defendants with intellectual disability. (2) However, the Court declined to establish a uniform protocol for identifying protected individuals,...
Federal Indian Law - Tribal Sovereign Immunity
Courts have long held that Native American governments enjoy tribal sovereign immunity from suit, subject only to Congress's plenary authority. Sixteen years ago, in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., (1) the Supreme Court...
First Amendment - Establishment Clause - Legislative Prayer
Over three decades ago, in Marsh v. Chambers (1), the Supreme Court upheld the constitutionality of a state legislature's practice of opening each session with a prayer by a chaplain paid with state funds (2). Rather than applying its at-the-time customary...
First Amendment - Freedom of Speech - Aggregate Contribution Limits
In Buckley v. Valeo, (1) the Supreme Court subjected limits on political contributions to a lower level of constitutional scrutiny than limits on political expenditures. (2) Some believe that the Court will eventually reconsider this foundational distinction...
First Amendment - Freedom of Speech - Compelled Subsidization
For thirty-five years after Abood v. Detroit Board of Education, (1) the First Amendment unquestionably permitted a public-sector union to collect fair-share fees from those members of a collective bargaining unit who refused to join the union. (2)...
First Amendment - Freedom of Speech - Content Neutrality
For over forty years, the distinction between content-based and content-neutral restrictions on speech has been central to the Supreme Court's First Amendment jurisprudence. With few exceptions, the Court has struck down laws that make facial distinctions...
Foreign Sovereign Immunities Act of 1976 - Postjudgment Discovery
The Foreign Sovereign Immunities Act of 1976 (1) (FSIA) immunizes foreign state property in the United States from attachment in U.S. courts, (2) except in the case of certain assets "used for a commercial activity in the United States." (3) Last term,...
Fourteenth Amendment - Equal Protection Clause - Political-Process Doctrine
In recent years, the Supreme Court has several times considered the constitutionality of race-based admissions preferences. (1) However, it has not analyzed the degree to which the Equal Protection Clause, particularly the political-process doctrine,...
Fourth Amendment - Search and Seizure - Anonymous Tips and Suspected Drunk Driving
Alone, anonymous tips generally cannot provide the reasonable suspicion the Fourth Amendment demands police have before conducting a traffic stop. (1) Some commentators urge that the risks of drunk driving warrant lowering the reliability threshold...
Fourth Amendment - Search and Seizure - Conflicted Consent When the Objecting Tenant Is Absent
The Supreme Court has long recognized that the Fourth Amendment allows a police officer to search a residence without a warrant if she obtains the consent of an occupant. (1) But in its 2006 decision, Georgia v. Randolph, (2) the Supreme Court held...
Fourth Amendment - Search and Seizure - Searching Cell Phones Incident to Arrest
To enforce the Fourth Amendment's prohibition on unreasonable searches, the Supreme Court has traditionally prohibited warrantless searches "subject only to a few specifically established and well-delineated exceptions." (1) However, the Court has...
Gun Control Act of 1968 - Material Misrepresentation
The Gun Control Act of 1968 (1) seeks to prevent certain classes of people from purchasing firearms and to make it easier for law enforcement to trace guns used in crimes. (2) Two provisions of the Act play an important role in facilitating these goals:...
Personal Jurisdiction - General Jurisdiction
The law of personal jurisdiction, often regarded as "rather muddled," (1) was clarified in recent years with respect to general jurisdiction by Justice Ginsburg's pathbreaking decision in Goodyear Dunlop Tires Operations, S.A. v. Brown. (2) That decision...
Sixth Amendment - Right to Counsel - Pretrial Asset Freeze Challenges
Criminal forfeiture statutes allow the government to seize assets derived from criminal activity to compensate victims and fund law enforcement. To prevent criminals from disposing of assets before conviction, courts may freeze potentially forfeitable...
Slipping the Bonds of Federalism
There are three tales told about federalism, but only one of them is true. The first is the nationalist's tale. It depicts federalism doctrine as Shakespearean comedy. Always fanciful, sometimes silly, the story supplies moments of consternation and...
Standing - Civil Procedure
Few areas of doctrine in the past fifty years have experienced greater transformation, implicated a wider range of cases, and engendered more confusion than standing. (1) In its 1970 decision Association of Data Processing Service Organizations, Inc....
Standing - Preenforcement Challenges
Ahead of the 2010 election, a political advocacy organization sought to post a billboard criticizing a sitting Ohio Congressman, which proclaimed: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion!" (1) But the billboard was never...
The Hobby Lobby Moment
American religious liberty is in a state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. (1) is both a cause and a symptom of this condition. It suggests a state of deep contestation around one of the key markers...
The Means of Constitutional Power
CONTENTS INTRODUCTION I. STATUTORY INTERPRETATION AND CONSTITUTIONAL DEFERENCE A. Post-New Deal Constitutionalism B. Statutory Purposivism and Constitutional Deference C. Statutory Textualism as Structural Constitutional Law II. THE NEW STRUCTURALISM...
The Means of Constitutional Power
II. THE NEW STRUCTURALISM AND INDEPENDENT JUDGMENT In the past quarter century, the Court's structural constitutional decisions have proceeded on premises contrary to the deferential approach it takes in its statutory interpretation cases. The Rehnquist...
The Statistics
TABLE I (a) (A) ACTIONS OF INDIVIDUAL JUSTICES OPINIONS WRITTEN (b) opinions Concur- Dissents (e) TOTAL of Court (d) rences (D) Roberts 7 2 3 ...
The Supreme Court as a Constitutional Court
Political institutions are always works in progress. Their practical duties and aims as instruments of governance may not always match their constitutional blueprints or historical roles. Political offices might not always have the power to do what...
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