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. 37, No. 1, Winter

Against the EPA, Absurdity Is No Defense
The term "revolution" accurately describes what happened in the 1970s in the realm of environmental regulation. The way we started looking at things in the 1970s really was a dramatic change from the way we looked at them previously. In fact, a...
A "[Non]essential Limit on Our Power": Standing Doctrine and Judicial Restraint in Hollingsworth V. Perry
Article III, Section 2 of the United States Constitution grants federal courts broad jurisdiction to consider "Cases" and "Controversies." (1) The Supreme Court has established that there is no "Case" or "Controversy"--and thus no federal court jurisdiction-if...
Coercion, Conditions, and Commandeering: A Brief Note on the Medicaid Holding of NFIB V. Sebelius
"Cooperative" fiscal federalism programs cover a vast range of government services, from education to transportation to health care. Far and away the largest of these programs is Medicaid, (1) which constitutes close to forty-five percent of all federal...
Complete Diversity and the Closing of the Federal Courts
Article III of the Constitution was designed to establish a federal judiciary, in the words of Federalist No. 81, "competent to the determination of matters of national jurisdiction." (1) The Framers were unwilling to rely on the state courts for this...
Crack Cocaine, Congressional Inaction, and Equal Protection
I. THE HISTORY OF FEDERAL DRUG POLICY II. CRACK COCAINE, RACE, AND EQUAL PROTECTION LAW A. Legislation and Equal Protection Law B. Legislative Inaction and Equal Protection Law 1. The Article I Lawmaking Process 2. The Due...
Crony Capitalism: Right Here, Right Now
Crony capitalism describes an economic and political environment in which pursuing and obtaining government favors is both part of everyday life and a necessary protocol for succeeding in business. Where crony capitalism exists, notions of meritocracy...
How the Law School Can Succeed - an Invitation
I have been lucky enough to give many talks at law schools, and whenever I take the microphone--and, inevitably, lower the microphone--the question flashes on people's faces: "Why him?" For one thing, I have no data to share, no findings to report,...
Intellectual Diversity in the Legal Academy
Elite law faculties are overwhelmingly liberal. Jim Lindgren has proven the point empirically. (1) I will just add my impressions from Georgetown Law School to reinforce the point. We are a faculty of 120, (2) and, to my knowledge, the number of professors...
Intent-Optional Criminal Statutes: A Plea for Reform, and a Note of Caution to Reformers
This Essay is adapted from a panel discussion on federal police power, or the nonexistence thereof, and the relatively recent trend of enacting federal criminal statutes to impose punishment without proof of bad intent. I am going to say very little...
Legal Academia and the Blindness of the Elites
The Harvard Federalist Society hosted a conference on diversity in the legal academy in the spring of 2013. The premise of this conference was that there ought to be more intellectual diversity on the faculties of America's law schools. While there...
Looking Back to Look Forward: Reexamining the Application of the Third-Party Doctrine to Conveyed Papers
The third-party doctrine maintains that individuals lose Fourth Amendment protection for information knowingly revealed to third parties. Applying this rule, courts have held that individuals lack Fourth Amendment protection for, among other things,...
Modern Environmentalists Overreach: A Plea for Understanding Background Common Law Principles
One of the major issues of our time involves the institutional arrangements that should be introduced in response to damage caused by various forms of pollution. In dealing with this issue, there is widespread agreement that pollution from natural...
Preface
If nothing else, the last five years in the United States have been characterized by increasing federal involvement in everyday life. From building on your own land to choosing replacement light bulbs, the federal government seems to influence, in...
The Federal Criminal "Code": Return of Overfederalization
The federal criminal "code"--to the extent one can call the United States' sprawling and disorganized mass of criminal legislation and regulations a "code"--is a disgrace. In particular, the United States has overcriminalized and overfederalized in...
The Legitimate Reach of the Environmental Revolution
This Essay addresses the question: "have environmental statutes and regulations gone too far?" There are three ways to think about this question. First, does the current manifestation of environmental regulation exceed the scope and intent of the enacting...
The Odd Evolution of the Civil Rights State
Law reviews are filled with sophisticated and often impassioned debates over the use of racial and gender preferences in employment, education, and electoral districting. As a political scientist I am particularly interested in a puzzle that has received...
The Origins and Meaning of "Vacancies That May Happen during the Recess" in the Constitution's Recess Appointments Clause
There has been longstanding uncertainty about the meaning of "the Recess" and "Vacancies that may happen" in the Constitution's Recess Appointments Clause. This Article finds that both "the Recess" and close variants of "Vacancies that may happen"...
The Return of Classical Political Question Doctrine in Zivotofsky Ex Rel. Zivotofsky V. Clinton
During his Supreme Court confirmation hearings, Chief Justice Roberts famously said, "I will remember that it's my job to call balls and strikes, and not to pitch or bat." (1) But he went on to draw another comparison between judges and umpires that...
The Spending Power after NFIB V. Sebelius
What is the challenge confronting modern spending power doctrine? And what is the Court's spending power doctrine after National Federation of Independent Business v. Sebelius (1) (NFIB)? This Essay takes up these questions, and concludes by posing...
The Supreme Court's Perversion of the 1964 Civil Rights Act
Before 1964, the last piece of major federal civil rights legislation was the Civil Rights Act of 1875. (1) This Act prohibited race discrimination in public accommodations (2) until the Supreme Court, unfortunately, held it unconstitutional. (3) Thereafter,...
The Uneasy Case for Intellectual Diversity
Wouldn't it be ironic if, at an academic conference on "intellectual diversity," everybody thought and said pretty much the same things? I suspect that the near-universal consensus view on the value of intellectual diversity in law school faculties...
Toward Improved Intellectual Diversity in Law Schools
The organizers and supporters of the conference on "Intellectual Diversity and the Legal Academy"--the Federalist Society, Harvard Law School, and Milbank, Tweed, Hadley & McCloy LLP--deserve great credit. Law school faculties tilt heavily to the...
Viva Conditional Federal Spending!
From the rise of the New Deal through the constitutional litigation over the Affordable Care Act (ACA), conditional federal spending has been a major target for those who have sought to limit the scope of federal power. There are a couple of reasons...
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