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. 33, No. 1, Winter

Burying the Constitution under a TARP
Asking whether the modern administrative state is unconstitutional is like asking whether Yale Law School has a tendency to emphasize theory. "Yes" does not do justice to the question. The modern administrative state is not merely unconstitutional;...
Clear Statement Rules and Executive War Powers
The scope of the President's independent war powers is notoriously unclear, and courts are understandably reluctant to issue constitutional rulings that might deprive the federal government as a whole of the flexibility needed to respond to crises....
Deconstructing Nondelegation
This Essay suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law "right," for nondelegation doctrine--at least as traditionally stated--does not rest...
Defending U.S. Sovereignty, Separation of Powers, and Federalism in Medellin V. Texas
In 2008, the U.S. Supreme Court decided Medellin v. Texas, (1) a case that implicated virtually every conceivable axis of the structural limitations on government. President vis-a-vis Congress, President vis-a-vis the Supreme Court, international law...
Delegation and Judicial Review
One of the subthemes in the delegation debate concerns the importance of judicial review. The Supreme Court has often upheld broad delegations to administrative actors and in so doing has pointed out that judicial review is available to safeguard citizens...
Federalism by Jury in United States V. Fell
Sixth Amendment jurisprudence has long sought to give practical form to the constitutional guarantee of a fair jury trial for the criminally accused. (1) Jury selection rules are designed to facilitate the impartial application of relevant law through...
In Praise of Supreme Court Filibusters
The genius of our political system largely lies in its rules of procedure. Federal legislation must overcome the hurdles of bicameralism (1) and presentment, (2) assuring substantial deliberation and thereby improving the quality of legislation (except...
Is the Separation of Powers Exportable?
It was a great honor for both Authors to participate in this Symposium together with Professor Juan Linz. (1) Although Professor Linz favors parliamentary government and we both favor presidential separation of powers systems, we agree on one absolutely...
Judicial Appointments: Checks and Balances in Practice
Much could be said about the intersection of judicial appointments and the subject of this Symposium, the separation of powers. My own view of how the executive and legislative branches interact and share power when selecting judges to fill the federal...
Legislative Delegation, the Unitary Executive, and the Legitimacy of the Administrative State
Federalist Society constitutionalists frequently launch two critiques of the modern administrative state. One, the nondelegation critique, challenges the now-customary breadth of legislative delegation to the executive branch. (1) The other, the unitary...
Originalism and Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making
Some eighty years ago, then-Professor and later-Judge Jerome Frank purported to expose what he termed "the basic legal myth"--to wit, that judges decide cases by applying legal rules to the facts before them. (1) Frank reputedly went so far as to say...
Preface
The separation of powers is a fundamental part of the structure of our Constitution. The Framers wisely developed a system whereby the power to enact laws was vested in Congress, the power to execute those laws and safeguard our country was vested...
Reviving Necessity in Eminent Domain
I. THE ROLE OF NECESSITY IN EMINENT DOMAIN A. Unnecessary Necessity: The Cases of Pequonnock and Poletown B. The Aftermath of Kelo v. City of New London: Has Public Outrage Prompted Meaningful Eminent Domain Reform? ...
Second Amendment Redux: Scrutiny, Incorporation, and the Heller Paradox
In District of Columbia v. Heller, (1) the final opinion of the Supreme Court's 2007 term, Justice Antonin Scalia reinvigorated the Second Amendment. Writing for a 5-4 majority, Justice Scalia held unequivocally that the Second Amendment protects an...
The Case for Promoting Democracy through Export Control
"Is the Separation of Powers Principle Exportable?" That is the question posed to the contributors to this Symposium. The answer I offer here turns not on abstract principles but on my assessment of the real-world consequences of exporting the presidential...
The Lonely Death of Public Campaign Financing
INTRODUCTION I. SPEND IT YOURSELF: THE DISTINCTION BETWEEN EXPENDITURES AND CONTRIBUTIONS A. Origin of the Distinction B. Persistence of the Distinction C. The Nature of Corruption: Setting Expenditures and Contributions...
The Puzzle of Hamilton's Federalist No. 77
I. A STATEMENT OF THE PROBLEM The Founders, the authors of the Constitution of 1787, much like you and me, were flesh-and-blood human beings. As a result, we expect to find errors and exaggeration in their written works. (1) There is nothing new...
The Right to Keep and Bear Arms in the States: Ambiguity, False Modesty, and (Maybe) Another Win for Originalism
District of Columbia v. Heller (1) was an easy case to get right. First, there was the text of the Second Amendment, which plainly states that "the right of the people to keep and bear Arms, shall not be infringed." (2) Second, there was history, much...
The Traditional View of Hamilton's Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman
It has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace...
The War Power
My nearly ridiculous goal for this Essay is to present a comprehensive theory of the Constitution's allocation of war powers and, then, to apply it to every significant issue of the war on terror, in twenty-five pages. My thesis is straightforward:...
Title VII's Conflicting "Twin Pillars" in Ricci V. DeStefano
Since 1971, when the Supreme Court created the disparate impact doctrine in Griggs v. Duke Power Co., (1) the judiciary and Congress have disagreed on how to define and apply the doctrine. In Griggs, the Court extended Title VII of the Civil Rights...
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