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. 24, No. 1, Fall

Against the Scribes: Campaign Finance Reform Revisited
It is a pleasure to be back at my alma mater to talk about free speech and, in particular, to address those who would like to restrict campaign expenditures to assure a more equal representation of voices in our political discourse. The desire to restrict...
Demystifying Antitrust State Action Doctrine
Sometimes the most mystifying thing about legal doctrine is why so many commentators find it so mystifying. And so it is with antitrust state action doctrine. The federal antitrust laws do not apply to business activities that are the foreseeable result...
Diffusion of Political Power and the Voting Rights Act
I. THE TENSION As we enter the first redistricting of the new century, the explosive mix of race and politics continues to fuel two fundamentally opposed positions. Redistricters and reviewing courts will have to contend not only with the manner...
Empirical Evidence in the Debate on Campaign Finance Reform
In the debate about campaign finance regulation, empirical evidence is often overlooked or ignored. The evidence suggests that campaign finance regulations have accomplished the opposite of what their enactors intended. Specifically, limitations have...
Freedom of Speech and Speech about Political Candidates: The Unintended Consequences of Three Proposals
Most effective speech to the public requires money. If spending more than $1,000 on expression is outlawed, then you may not place more than a tiny ad in any major newspaper, buy virtually any television time, put up a billboard, or mail more than...
"How Solemn Is the Duty of the Mighty Chief": Mediating the Conflict of Rights in Boy Scouts of America V. Dale
"HOW SOLEMN IS THE DUTY OF THE MIGHTY CHIEF"(1): MEDIATING THE CONFLICT OF RIGHTS IN Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000) I. INTRODUCTION Since 1910, the Boy Scouts of America(2) has provided what it describes as an educational...
Misunderstood Precedent: Andrew Jackson and the Real Case against Censure
Confronted with allegations of perjury, obstruction of justice, and other misconduct committed by President Clinton,(1) members of the 105th and 106th Congresses battled mightily over the constitutionality of not only impeachment, but also an alternative...
Oversight of Regulated Political Markets
The purpose of this Panel is to address the role of government regulation in the political process. This strikes me as a peculiar construct since it invites the conception that alternatives are to be drawn between regulated and unregulated conduct....
Political Parties and Spending Limits
The Supreme Court is ambivalent about political parties. At times, it is wary of them,(1) but on other occasions, the Court rhapsodizes about sacred rights of association and speech.(2) Each time a case regarding political parties comes before the...
Power to the Voters
I am, or try to be, a populist democrat. For decades, populism was largely invisible, barely a straw man, in the discourse of the law schools. Well-meaning ideologues of the governing class were accustomed to prescribe -- for the people-policies and...
Revitalizing Democracy
Government--organized, legitimized coercion--presents a dilemma. On the one hand, government is necessary to obtain certain benefits, such as the creation and enforcement of property rights that are essential to the efficient use of resources. On the...
"Revitalizing Democracy": Some Caveats
Talk about revitalizing democracy makes me nervous, and I want to assume that the function of this roundtable is to allay my nervousness. It makes me nervous because I firmly believe in those two adages: "If it ain't broke, don't fix it," and "Be careful...
The Constitutional Question
There are reform proposals on the table. They involve legal restrictions on how, and how much, money is spent in elections by candidates, parties, PACs, and others, very possibly accompanied by proposals for public financing of election campaigns or...
The Constitution and the Courts: A Question of Legitimacy
Like ill-mannered children, some issues refuse to go away. In 1992, three Supreme Court Justices issued a plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey(1) in which they declared that even if the Court had erred in Roe...
The Dangers, and Promise, of Shrink Missouri
Whenever someone makes the kind of biographical introduction Judge Kozinski just offered, a member of the audience inevitably bounds up afterwards and asks, "So, you clerked for both Scalia and Brennan? Which one made the mistake?" I always find myself...
The Dirty Little Secrets of Shaw
The racial gerrymandering decisions of the 1990s(1) are widely viewed as a resounding victory for the color-blind Constitution.(2) From a distance, they do appear that way. They are replete with rhetoric about the pernicious effects of race-conscious...
The Necessity for Constrained Deliberation
The revitalization of democracy requires some fundamental structural changes in order to avoid the nightmarish scenarios that Charles Fried outlined,(1) scenarios that might in fact, in the current political climate and constitutional regime, be enacted...
The Redistricting Cases: Original Mistakes and Current Consequences
One of the most firmly established principles of constitutional law is "one person, one vote,"(1) meaning that legislative districts within each state must be equal in population. There are no dissenters from that proposition on the Supreme Court,...
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