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. 32, No. 3, Summer

A Measured Approach: Employment and Labor Law during the George W. Bush Years
On the whole, the Bush Administration took a thoughtful and measured approach to labor and employment law issues. Two principal themes emerged from the Administration's approach: first, that government should provide clarity in the law to the greatest...
Faith-Based Initiative 2.0: The Bush Faith-Based and Community Initiative
Critics of President George W. Bush's faith-based initiative (1) often claimed that it was not a serious public policy effort, but rather a political ploy aimed at pleasing the Republican white evangelical "base" and poaching African-American and Hispanic...
False Premises: The Accountability Fetish in Education
"She took math and reading workbooks home so her children were always ahead in school. And she insisted on discipline and chores to teach the importance of accountability." (1) --The New York Times on Marian Robinson, Michelle Obama's mother ...
Imperfect Minimalism: Unanswered Questions in Hall Street Associates, L.L.C. V. Mattel, Inc
Benjamin Franklin embodied hope in his question, "When will mankind be convinced, and agree to settle their differences by arbitration?" (1) Arbitration, however, received an icy welcome from the American judicial system. To counteract judicial hostility...
Measuring Meta-Doctrine: An Empirical Assessment of Judicial Minimalism in the Supreme Court
One of the most influential recent theories of Supreme Court decision making is Professor Cass Sunstein's "judicial minimalism." Sunstein argues that a majority of the Justices of the Rehnquist Court were "minimalists," preferring to "leave things...
National Security and the Rule of Law
I have long had a deep respect for the Federalist Society and for its principles, and so I feel particularly privileged to be at this podium tonight. For over twenty-five years, the members of this Society have committed themselves to vigorous and...
Preface
President George W. Bush recently left office after eight often tumultuous years in the White House. His presidency was marked by tragedy and triumph, bipartisan unity and vicious discord. But what really happened during the Bush Administration? As...
Public Bioethics and the Bush Presidency
INTRODUCTION I. THE BUSH ADMINISTRATION'S APPROACH TO PUBLIC BIOETHICS: GROUNDING GOODS A. The Fundamental Equality of All Human Beings B. Pursuit and Application of Biomedical Knowledge for the Common Good II. IMPLEMENTATION...
Reconsidering the Felony Murder Rule in Light of Modern Criticisms: Doesn't the Conclusion Depend upon the Particular Rule at Issue?
I. FOR AND AGAINST THE FELONY MURDER RULE: THE WELL-WORN ARGUMENTS A. Traditional Arguments in Opposition B. Traditional Arguments Supporting the Rule II. WHAT KIND OF FELONY MURDER STATUTE? GOOD ONES AND BAD ONES ...
Reflections on Events and Changes at the Department of Justice
Few have had the profound privilege to serve their country as I have during my career of public service. It has been an even higher honor to serve in a time of national crisis. Such was my tenure as the eightieth Attorney General of the United States....
Speaking Up for Marriage
In a weekly radio address in 2004, President George W. Bush said: "If courts create their own arbitrary definition of marriage as a mere legal contract and cut marriage off from its cultural, religious, and natural roots, then the meaning of marriage...
Squaring the Circle: Reconciling Clear Statutory Text with Contradictory Statutory Purpose in United States V. Whitley
Since the Supreme Court struck down the New Jersey Hate Crime Statute in Apprendi v. New Jersey, (1) federal courts have increasingly resisted mandatory sentencing regimes. From Apprendi to Booker (2) to Kimbrough (3) and Gall, (4) the courts have...
Testing the Boundaries of the First Amendment Press Clause: A Proposal for Protecting the Media from Newsgathering Torts
I. THE FIRST AMENDMENT PROBLEM A. Defining News in the Public Interest II. COHEN, FOOD LION, AND DESNICK III. THE CONTINUING LEGACY OF COHEN, FOOD LION, AND DESNICK A. Cohen Clones B. Reputation Claims in Disguise C. Promises Broken ...
The Bush Administration and America's International Religious Freedom Policy
In February 2002, President George W. Bush appeared at Beijing's Tsinghua University and delivered a speech that was broadcast across China. (1) A substantial portion of the President's remarks focused on the religious nature of the American people,...
The "Bush Doctrine": Can Preventive War Be Justified?
Despite the Bush Administration's successes against al Qaeda, (1) we continue to live in a dangerous world. We are exposed to the risk that hostile states or terrorist groups with global reach might attack our civilian population or those of our allies...
The Constitution as the Playbook for Judicial Selection
The Federalist Society plays an indispensable role in educating our fellow citizens about the principles of liberty, a task that is both critical and challenging. It is critical because, as James Madison put it, "a well-instructed people alone can...
Unfinished Business: The Bush Administration and Racial Preferences
INTRODUCTION To evaluate the Bush Administration's record in opposing preferential treatment on the basis of race, ethnicity, or sex--"affirmative action" (1)--we have to look not only at what it did, but also at what it needed to do. That is, we...
"Wholly Foreign to the First Amendment": The Demise of Campaign Finance's Equalizing Rationale in Davis V. Federal Election Commission
Since the Supreme Court handed down its seminal campaign finance opinion, Buckley v. Valeo, (1) more than three decades ago, campaign contributions and expenditures have been widely accepted as a type of political speech entitled to varying degrees...