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. 26, No. 1, Winter

America's Adversarial and Jury Systems: More Likely to Do Justice
I. ADVERSARIAL VS. INQUISITORIAL SYSTEM II. JURY SYSTEM III. CONCLUSION This Article aims to answer the following question: Are the American and British adversarial systems, which rely heavily on juries, or the German and Continental inquisitorial...
A Tale of Truth in Modern America
A fellow running for sheriff in a small southern town gave a stump speech at a Fourth of July picnic. At the end, the crowd applauded and wandered away, except for one man. The candidate, seeing a potential vote, approached the man and asked whom he...
Corporate Fraud: See, Lawyers
I. INTRODUCTION II. LAWYERS, LIES AND MARKET-GATE III. THE LAW-FREE ZONE IV. LIES OR CONSEQUENCES V. CONCLUSION POSTSCRIPT: JANUARY 26, 2003 I. INTRODUCTION The accounting profession must bear a good deal of responsibility for the current...
Forms of Originalism and the Study of History
I will discuss two different kinds of originalism and the demands they place on the discipline of history. I was an eyewitness to the development of the first kind of originalism, which I will call Originalism Mark I. In the fall of 1977 at the...
From Postmodernism to Law and Truth.
I. INTRODUCTION II. MAPPING MODERNITY III. POSTMODERN THOUGHT IV. MODERNISM AND LANGUAGE V. LAW AND TRUTH VI. CONCLUSION I. INTRODUCTION Postmodernism and legal truth both merit serious attention. Properly understood, postmodernism provides...
History for the Non-Originalist
It has always seemed a perversion of language to use a name to signify what something is not, rather than what it is. (1) A name is related, in some way, to understanding and to mastering, indeed to being human, as suggested by the Old Testament's...
How Little Control? Volition and the Civil Confinement of Sexually Violent Predators
Traditionally, civil confinement has been employed for the treatment and incarceration of non-responsible, non-culpable actors such as the severely mentally ill or the legally and criminally insane. (1) Due to concern about the danger repeat sexual...
In Defense of the Search and Seizure Exclusionary Rule
I. INTRODUCTION II. THE PRE-MAPP ERA III. THE LAW ENFORCEMENT COMMUNITY'S REACTION TO MAPP IV. HAS THE EXCLUSIONARY RULE INHIBITED THE DEVELOPMENT OF ALTERNATIVE REMEDIES ? V. ARE TODAY'S POLITICIANS MORE LIKELY TO IMPOSE...
Introduction to the Federalist Society 2002 Symposium on Law and Truth; Banquet Panel on the Founding of the Federalist Society
In looking back at the founding of the Federalist Society as a conservative law student organization it is clear that Steve Calabresi, Lee Liberman Otis, and Gary Lawson were the intellectual powerhouses who put together the original symposiums. Spence...
Is the Criminal Process about Truth?: A German Perspective
I. INTRODUCTION: THE IMPORTANCE OF KNOWING THE TRUTH II. ADVERSARIAL AND INQUISITORIAL SYSTEMS: HISTORICAL FAILURES III. COMPROMISE SOLUTIONS IV. TRUTH AND THE JURY V. WHY CARE ABOUT THE TRUTH? VI. TOWARD A DEFINITION OF PROCEDURAL...
Lawyers and Truth-Telling
Critics of the adversarial system's relationship with truth fall roughly into two groups. The first group, exemplified by John Langbein, seeks reform of our trial and pretrial procedures. These critics would give judges greater independent responsibility...
Lawyers as the Enemies of Truth
In these brief remarks, I will focus on a single aspect of the relationship between lawyers and truth. I will discuss why the issue of truth in the legal system reveals a fundamental tension between lawyers and the public. The public benefits from...
On Finding (and Losing) Our Origins
I Suppose I asked a hundred people to write an article describing what happened yesterday in, say, France. We could even agree more specifically on the question, like what happened in the City Council of Paris; or, what did the French government...
Politics and the Principle That Elected Legislators Should Make the Laws
[T]he most significant development in the law over the past thousand years.... is the principle that laws should be made not by a ruler, or his ministers, or his appointed judges, but by representatives of the people. (1) --Justice Antonin...
Preface
Volume 26 begins, as always, with the Federalist Society Student Symposium. The students who gathered in New Haven were treated not only to a variety of interesting panels and discussions on "Law and Truth," but also to a celebration of the Federalist...
Security Reviews of Media Reports on Military Operations: A Response to Professor Lee
I. CASE LAW ON MEDIA ACCESS II. THE ROLE OF SECURITY REVIEWS IN PROTECTING THE MILITARY MISSION III. A PRUDENT APPROACH TO MILITARY/ MEDIA RELATIONS IV. CONCLUSION Professor William E. Lee argued in a recent article in this journal that...
The Exclusionary Rule
If there is a litmus test to distinguish between so-called liberals and so-called conservatives in the United States, it is the exclusionary rule. More than one's views on abortion, more than one's views on law and economics, more than one's views...
The Faith-Based Initiative, Charitable Choice, and Protecting the Free Speech Rights of Faith-Based Organizations
We ought not to worry about faith in our society. We ought to welcome it into our programs. We ought to welcome it in the welfare system. We ought to recognize the healing power of faith in our society. --President George W. Bush (1) I....
The Myth of Conservative Supreme Court: The October 2000 Term
I. JUDICIAL ACTIVISM II. THE NATURE AND SOURCE OF CONSTITUTIONAL LAW III. THE LIBERAL ACTIVISM OF THE REHNQUIST COURT IV. CONSERVATIVE ACTIVISM BY THE REHNQUIST COURT A. Bush v. Gore B. Racial Preferences C. Federalism D. Regulatory...
The Plain Truth about Legal Truth.
I. INTRODUCTION II. WHY WE SHOULD CARE ABOUT ISSUES CONCERNING THE TRUTH OF SINGULAR LEGAL PROPOSITIONS III. SKEPTICISM ABOUT TRUTH IN LAW: ITS CAUSE AND CURE A. Three Pseudo-Skepticisms About the Truth of Singular Legal...
The Proliferation of Legal Truth
I am delighted that the Federalist Society asked me to participate in its Symposium on Law and Truth. I suspect, however, given my previous jurisprudential writings, that I was invited in order to play the role of Pontius Pilate. But I refuse that...
Truth, Justice, and the Jury
I. PUBLIC INFORMATION ABOUT THE JURY II. SYSTEMATIC STUDIES OF JURY DECISIONS III. HOW JURIES DECIDE IV. CONCLUSION An experienced attorney recently forwarded an email sharing the descriptions of several recent verdicts in civil cases. He suggested...
Truth, Truths, "Truth," and "Truths" in the Law
The best way to get a clear view of questions about truth--in the law or anywhere else--is to start, not with debates over "modernism" versus "post-modernism," and the whole dubious history of ideas they presuppose, but with a few simple distinctions....
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