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. 132, No. 1, November

Alien Tort Statute - Foreign Corporate Liability - Jesner V. Arab Bank, PLC
The Alien Tort Statute (1) (ATS) has been a creature on the run. Birthed under presumptions of general common law, it found itself in Erie's (2) crosshairs, but was saved by a Court unwilling to put it down fully. (3) Specifically, in Sosa v. Alvarez-Machain,...
Antiterrorism and Effective Death Penalty Act - Habeas Corpus - Scope of Review of State Proceedings - Wilson V. Sellers
In 1996, riding a wave of public opinion after the Oklahoma City bombing, Congress passed the Antiterrorism and Effective Death Penalty Act (1) (AEDPA). (2) Among other things, AEDPA heightened the standard a federal habeas court must use when reviewing...
Article II - Appointments Clause - Officers of the United States - Lucia V. SEC
Perhaps one of the most durable effects of the Trump Administration will be its heretofore successful attempt to remake the federal judiciary. In its first two years, the Administration has appointed more federal judges than any of its recent predecessors....
Article III - Federal Courts - Ortiz V. United States
There are two ways to get to the Supreme Court. Under Article III, a small set of cases qualify for the Court's original jurisdiction, and for "all the other Cases" the Court can hear, there's "appellate Jurisdiction." (1) But Article III never defines...
Article III - Judicial Power - Congressional Limits - Patchak V. Zinke
The suggestion that "'the judicial Power of the United States ... can no more be shared' with another branch than 'the Chief Executive, for example, can share with the Judiciary the veto power'" has an axiomatic ring to it. (1) Yet in practice the...
Article III - Judicial Power - Public Rights Doctrine - Oil States Energy Services, LLC V. Greene's Energy Group, LLC
Article III protects "[t]he judicial Power of the United States" from political influence by guaranteeing lifetime salaries and tenure to judges who exercise that power, (1) but it does not specify which adjudications may be heard only in Article III...
Article I - Stare Decisis for Constitutional Default Rules - Dormant Commerce Clause - South Dakota V. Wayfair, Inc
Judicial junk, the Court has long thought, is easier to scrap when the erroneous precedent cannot be fixed by Congress, as in constitutional cases. (1) On the flip side, whenever a bad precedent can be corrected by Congress, stare decisis applies with...
Compelled Subsidies and the First Amendment
INTRODUCTION Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student forced to fund student group activities, a public employee forced to fund a labor...
Federal Arbitration Act and National Labor Relations Act - Arbitration and Collective Actions - Collective Arbitration Waivers - Epic Systems Corp. V. Lewis
The Supreme Court's decision last Term in Epic Systems Corp. v. Lewis (1) is a vivid illustration of the declining power of workers in the U.S. political system. The opinion, authored by Justice Gorsuch, upheld the validity of employment contracts...
Fifth Amendment - Due Process - Void-for-Vagueness Doctrine - Sessions V. Dimaya
Recent Terms have brought a sequence of cases challenging portions of the criminal code for unconstitutional vagueness. (1) Criminal defendants have sought relief from long sentences on the grounds that the statutory definitions of their crimes gave...
First Amendment - Establishment Clause - Judicial Review of Pretext - Trump V. Hawaii
As a candidate for President of the United States, Donald Trump "call[ed] for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on." (1) One week after taking...
First Amendment - Freedom of Speech - Compelled Speech - National Institute of Family & Life Advocates V. Becerra
Consumer-protective regulations often mandate disclosures on packaging or in places where products or services are sold. (1) The Supreme Court has upheld such requirements, including that lawyers clearly explain fee structures, when the disclosures...
First Amendment - Freedom of Speech - Facial Challenges - Minnesota Voters Alliance V. Mansky
In Minnesota Voters Alliance v. Mansky, (1) the Supreme Court held that a Minnesota law that banned "political" apparel from being worn in polling places on Election Day facially violated the First Amendment because the term "political" was too indeterminate...
Fourth Amendment - Search and Seizure - Automobile Exception - Collins V. Virginia
The axiom is familiar: searches conducted without warrants are per se unconstitutional under the Fourth Amendment--"subject only to a few specifically established and well-delineated exceptions." (1) The rule has been eroded by its exceptions in most...
Immigration and Nationality Act - Mandatory and Prolonged Detention - Access to Bond Hearings - Jennings V. Rodriguez
Over 350,000 individuals were placed into civil immigration detention in 2016. (1) Held in prison-like detention centers or local jails, detainees wear "orange suits, ... are shackled during visitation and court visits, ... are subject to surveillance...
In Tribute: Justice Anthony M. Kennedy
The editors of the Harvard Law Review respectfully dedicate this issue to Justice Anthony M. Kennedy. Chief Justice John G. Roberts, Jr. * This past summer, after three decades on the Supreme Court, and more than four as a federal judge, Anthony...
Judicial Intervention as Judicial Restraint
In Gill v. Whitford, (1) the Supreme Court turned aside the most promising vehicle for adjudicating partisan gerrymandering claims since the Court first fully addressed the issue more than thirty years ago in Davis v. Bandemer. (2) Though the Court...
National Voter Registration Act - Statutory Interpretation - Election Law - Husted V. A. Philip Randolph Institute
Voter suppression is as American as apple pie. (1) Between the 2012 and 2016 elections, for example, fourteen states enacted laws making it harder for citizens to vote. (2) These laws affect minority voters with particular intensity. (3) Last Term,...
Rights as Trumps?
CONTENTS I. INTRODUCTION II. OUR ABSOLUTISM A. Taking Rights Reasonably 1. Antidiscrimination Law 2. Social and Economic Rights 3. Abortion 4. School Integration 5. Second Amendment B. Proportionality...
Sixth Amendment - Assistance of Counsel - Capital Punishment - McCoy V. Louisiana
Where a criminal defendant's authority over his trial ends and defense counsel's begins is a murky area of constitutional law. One question in particular has risen to state supreme courts and the U.S. Supreme Court multiple times in recent decades:...
Tenth Amendment - Constitutional Remedies - Severability- Murphy V. National Collegiate Athletic Association
Severability--the notion that a court may excise an unconstitutional part of a statute while leaving valid portions intact--forms a core tenet of American constitutional law. (1) Courts have long maintained a strong presumption of severability, (2)...
The Carpenter Chronicle: A Near-Perfect Surveillance
On May 24, 1844, a crowd gathered inside the United States Supreme Court chambers in the basement of the Capitol, eagerly awaiting a demonstration of an amazing new communication technology. They watched as inventor Samuel F.B. Morse successfully sent...
The Etiquette of Animus
There is a difference between deciding how to talk about a problem and sorting out the principles for resolving it. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (1) the Supreme Court did the former, but not enough of the latter....
The Statistics
TABLE I (a) (A) Actions of Individual Justices OPINIONS WRITTEN (b) Opinions Concur- of Court (d) rences (e) Dissents (e) Total Roberts 6 1 ...
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