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. 3, Summer

Beyond Textualism: Why Originalist Theory Must Apply General Principles of Interpretation to Constitutional Law
The relationship between textualism and originalism is a central issue in constitutional interpretation. That connection runs across the full range of issues that deal with institutional structure and individual rights--the two central concerns of...
Bulk Metadata Collection: Statutory and Constitutional Considerations
INTRODUCTION I. BULK COLLECTION IN THE CONTEXT OF FISA'S GENERAL APPROACH A. Prior Domestic Surveillance 1. NSA Programs a. Project MINARET b. Operation SHAMROCK 2. Broader Context ...
Duty or Dignity? Competing Approaches to the Free Exercise Rights of For-Profit Corporations
INTRODUCTION Corporate free exercise (1) has garnered much attention since the Department of Health and Human Services issued a regulation under the Affordable Care Act (2) requiring most employers to include coverage of preventive health services...
Law's Irony
Thank you for the kind introduction. It is an honor to be with you and a pleasure to be part of a lecture series dedicated to the memory of Barbara Olson and to some of the causes she held dear--the rule of law, limited government, and human liberty....
Neither "Ministerial" nor an "Exception": The Ministerial Exception in Light of Hosanna-Tabor
INTRODUCTION In January 2012, the Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. (1) In that case, a unanimous Court affirmed the existence of the so-called "ministerial exception" within the First Amendment's...
Preface
Textualism--and the restraint that we all hope it inspires--is at the heart of the conservative legal movement. The 2013 Federalist Society National Lawyers Convention: "Texualism and the Role of Judges" addressed, among other topics, the place of...
Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause
I. The Setting: Strict Liability and Incarceration II. The Birth and Growth of Strict Liability Offenses III. The Problems with Strict Liability Offenses IV. Strict Liability Offenses and the Cruel and Unusual Punishments Clause...
Textualism and District of Columbia V. Heller
The text of the Second Amendment has played a large role both in judicial debates about the Amendment and in public ones. The majority opinion and dissents in District of Columbia v. Heller (1) talk extensively about the constitutional text. Lower...
Textualism and the Bill of Rights
This Essay concerns the Supreme Court's free speech rulings, which do not take a textualist approach. Instead, the Court draws and builds upon a large body of precedents, which contain and reflect a complex web of doctrines, exceptions, and exceptions...
The Empty Promise of Behavioral Antitrust
ABSTRACT Microeconomic theory has long guided competition law. Using price and game-theoretic models, antitrust has settled on rules that have endured because they are more coherent, easier to understand, and simpler to apply than those of any other...
The Legality of the National Security Agency's Bulk Data Surveillance Programs
INTRODUCTION Controversy has arisen again over the federal government's electronic surveillance efforts to gather intelligence on foreign terrorist groups. Recent disclosures, both authorized and illicit, have described two secret National Security...
The Limits of Textualism in Interpreting the Confrontation Clause
In evaluating textualism's role in interpreting the Bill of Rights, this Essay will focus on the criminal procedure provisions, which often get overlooked because they are not taught in most constitutional law courses, and primarily on the Confrontation...
The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges
INTRODUCTION I. THE PROBLEM OF PRIVATE REGULATION A. Private Regulation and Its Discontents B. Five Examples 1. Amtrak 2. The North Carolina Board of Dental Examiners 3. The Mississippi Board of Pharmacy...
What's the Point of Originalism?
I. EMBRACING ORIGINALISM As of late, a remarkable array of constitutional theorists have declared themselves originalists of one sort or another,* 1 and no one is quite sure why. (2) Or, perhaps more accurately, everyone is sure, but they all disagree...
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