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. 30, No. 1, Fall

American Self-Defense Shouldn't Be Too Distracted by International Law
INTRODUCTION Since the attacks of September 11, 2001, the United States government has pursued a series of energetic policies designed to protect America from the threat of Islamist terror networks. (1) Some of these policies are intensely controversial....
Constitutional Law and Transnational Comparisons: The Youngstown Decision and American Exceptionalism
In his dissent in Roper v. Simmons, Justice Antonin Scalia bemoaned the "brave new meaning" that the Court had given the Due Process and Equal Protection Clauses and, by implication, the Eighth Amendment. (1) One of his principal complaints about the...
Contracting out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments
INTRODUCTION I. BACKGROUND A. Changing Conceptions of Morality and the Proper Role of Law B. Attempts to Fix Marriage 1. Legal Efforts to Strengthen Marriage 2. Non-legal Efforts to Strengthen Marriage ...
Don't Knock Them until We Try Them: Civil Suits as a Remedy for Knock-and-Announce Violations after Hudson V. Michigan
The sight of law enforcement officers knocking on a door and yelling "Police!" is more than just television drama. In fact, the idea that police should knock and announce their presence before entering is an ancient requirement that has its roots in...
Elevating Choice over Quality of Representation: United States V. Gonzalez-Lopez
The Supreme Court's Counsel Clause jurisprudence generally has been preoccupied with the effect of alleged violations on the fairness and reliability of the trial process. (1) This approach seemed ripe for reexamination after Crawford v. Washington,...
Enforceability of International Tribunals' Decisions in the United States
The United States has committed itself to many international institutions that make decisions affecting this country's rights and duties under international law. These international decision-making bodies include the International Court of Justice...
Enforcing the Avena Decision in U.S. Courts
The Avena decision (1) concerned Article 36 of the Vienna Convention on Consular Relations, a treaty that the United States ratified in 1969. (2) Article 36 provides that a party country that arrests a national from another party country is required...
Equipoise, Collective Rights and the Future of the Death Penalty: Kansas V. Marsh
The evaluation of evidence is an inherently subjective process, yet deliberating jurors are routinely expected to rummage for purportedly objective criteria such as "reasonable doubt." No less troublesome is the concept of equipoise. In the context...
Executive Power in Foreign Affairs
Article II of the U.S. Constitution begins by declaring that "the executive Power shall be vested in a President of the United States of America." (1) This so-called Executive Vesting Clause has been the subject of intense constitutional discussion...
Executive Power V. International Law
INTRODUCTION Presidents have long had an uneasy relationship with international law. If it is true that most states follow most international law most of the time, that probably goes for Presidents, too. Whether Presidents follow international law...
Foreign and International Law Sources in Domestic Constitutional Interpretation
In recent years, several controversial judicial decisions have pushed the use of foreign and international law sources for domestic constitutional interpretation to the forefront of scholarly discussion. Many legal scholars debate whether the use of...
Foreign Sources and the American Constitution
Everyone is talking about foreign law. No surprise here, because it is the topic of this symposium. But the Justices of the Supreme Court are addressing it in and out of court-Justice Scalia has debated Justice Breyer in a road-show tour and just delivered...
International Adjudicators and Judicial Independence
What are the consequences to the United States legal system of the decisions of adjudicatory tribunals acting pursuant to treaties and other international agreements to which the United States is a party? This question and its variants are likely to...
International Law as a Resource in Constitutional Interpretation
I. Despite recent polemics, the use of international law in constitutional interpretation, as one factor among others, is highly traditional and eminently proper. Some international law is too important to the place of the United States in the world...
Law outside the Market: The Social Utility of the Private Foundation
INTRODUCTION I. A THEORY OF THE PRIVATE FOUNDATION A. The Theory B. Two Primary Functions of Foundations II. THE EVOLUTION OF OPPORTUNITY IN AMERICA III. THE PRIVATE FOUNDATION A. Development of the Private Foundation B. The Importance...
The Comparative Disadvantage of Customary International Law
International law is as important a topic as any to our future legal regime. International law increasingly infiltrates the domestic world. Some United States Supreme Court justices appear to use international law, including unratified customary international...
The Constitutional Status of Customary International Law
The question of the hour is: "How does international law limit the war on terror?" Constraints of space restrict this piece to the role that customary international law plays in the war. The answer to the more specific question--"How does customary...
The Law and Economics of Software Security
INTRODUCTION I AN OVERVIEW OF SOFTWARE SECURITY A. What is Software System Security? 1. Types and Methods of Attack 2. Types of Damage B. Identifying Cyber-Criminals and Their Motivations II. THE ECONOMICS OF SOFTWARE ...
The Most Dangerous Branch Abroad
INTRODUCTION Let me start by pledging allegiance, at least for the purposes of this exchange, to several principles of constitutional interpretation that I suspect command widespread support among a group of Federalist Society members such as this....
The Rule of International Law
I. This Article will focus on how one should think about the rule of law in the international arena. Asking about the rule of law in the international arena is not just asking whether there is such a thing as international law, or what it is, or...
The Slow, Just, Unfinished Demise of the Buckley Compromise: Randall V. Sorrell
In 1976, the Supreme Court decided Buckley v. Valeo, (1) laying out the fundamental compromise that has guided campaign finance decisions ever since. Buckley held that though the government could not restrict how much a campaign spent, it could restrict...
The Textual Basis of the President's Foreign Affairs Power
What I want to present here is, if not an alternative to Justice Robert Jackson's famous Youngstown framework, (1) at least a complement to that framework for approaching the President's foreign affairs power. My central proposition is that the eighteenth-century...
What Is an International Rule of Law?
A panel at the 2006 Federalist Society Student Symposium explored a controversial and open-ended topic: the proper role and scope of an "International Rule of Law." The panelists were challenged to answer two questions: (1) In what sectors do international...