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. 36, No. 3, Summer

Elections across the Pond: Comparing Campaign Finance Regimes in the United States and United Kingdom
1. CAMPAIGN FINANCE IN THE UNITED STATES A. The Permitted Framework B. Congress's Attempt to Foster Political Parity 1. Congress's First Attempt 2. Congress's Second Attempt C. The Enumerated Right to Free Speech ...
Federalism and Commerce
The precis for this panel concerns the Supreme Court's federalism decisions. I confess, however, that I'm more interested in the Constitution's federalism rules, which may or may not be the same as the Court's. The original plan, sketched in Madison's...
Monopolies and the Constitution: A History of Crony Capitalism
III. MONOPOLIES AND STATE CONSTITUTIONAL LAW Though the federal Constitution does not have an explicit antimonopoly provision, such provisions are included in nineteen state constitutions today. (516) Only two states had antimonopoly provisions...
Natural Law Jurisprudence: A Skeptical Perspective
I am a textualist, and the text of the Ninth Amendment says that the enumeration of certain rights does not indicate that no other rights exist. (1) Being primarily a textualist, I am also a bit knowledgeable about history. Many of the Founding Fathers...
Preface
Last fall's decision on the national health care mandate has revived the debate on what limits--if any--the Constitution should place on federal power. Other cases before the Supreme Court in its last term have forced the Court to make controversial...
Rethinking Legal Conservatism
I appreciate so much the invitation to contribute to this debate, and before I gently chide my colleagues for what they have been doing for the last few years, I want to offer some words of praise. First, as to Professor Randy Barnett, who was described...
Robert H. Bork
I was a friend of Bob Bork's for many years. I worked with him, under Attorney General Edward Levi, in Gerald Ford's Justice Department, where he was Solicitor General and I was Assistant Attorney General for the Office of Legal Counsel. Our other...
Stockholder Adoption of Mandatory Individual Arbitration for Stockholder Disputes
INTRODUCTION I. THE SHORTCOMINGS OF CLASS ACTIONS A. The Uncertain Benefits of Securities Class Actions 1. Compensation of Plaintiffs 2. Deterrence B. The High Costs of Securities Class Actions II. THE CASE FOR MANDATORY ...
The Article V Convention Process and the Restoration of Federalism
Two recent events should be sobering for those of us who are committed to the Founders' vision of federalism, or, with deference to Professor Heather Gerken, "federalisms." (1) The first is the Supreme Court's decision to uphold most of the Affordable...
The Federalis(m) Society
I am not a member of the Federalist Society, but I am a member of the federalism society. Much of my work has been devoted to making the progressive case for federalism, even the nationalist case for federalism. (1) That work addresses the concern...
The Natural Law Challenge
It is never out of season to recall James Wilson's line that the purpose of this Constitution was not to invent new rights, but to secure and enlarge those rights we already had by nature. (1) In radical contrast, Blackstone said that when we enter...
The Wages of Crying Judicial Restraint
In September 2005, the Wall Street Journal asked if I would write a tribute to Chief Justice William Rehnquist, who had just passed away. In thinking about the future of federalism, the Supreme Court and the Constitution, it is fitting to quote from...
Understanding "The Loop": Regulating the Next Generation of War Machines
INTRODUCTION: AUTOMATION AND AUTONOMY I. MACHINE FUNCTIONING AND THE DIFFERENCE BETWEEN AUTONOMY AND AUTOMATION A. Understanding "the Loop" : OODA and How Machines Work FIGURE 1--Boyd's OODA Loop B. Toward a Distinction...
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