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. 38, No. 1, Winter

Drone On: The Commander in Chief Power to Target and Kill Americans
INTRODUCTION My proposition is a simple but bracing one: The President of the United States, in his capacity as military Commander in Chief of the nation's armed forces in time of constitutionally authorized war, has the plenary power and discretion...
Section 702 and the Collection of International Telephone and Internet Content
C. Foreign Intelligence, Criminal Prosecution If one accepts that the contours of the warrant requirement in foreign intelligence gathering are subject to countervailing pressure from separation of powers doctrine, it does not necessarily follow...
The Constitution Follows the Drone: Targeted Killings, Legal Constraints, and Judicial Safeguards
INTRODUCTION The more national security law stays the same, the more it changes. To understand why, consider relevant developments that have occurred in the few months since the original version of these remarks were delivered earlier this year....
The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking
b. Laws Imposing Criminal Liability Must Be Written in English Being able to find a foreign statute, regulation, nonlegislative rule, or agency decision is just the first step. A law exposing someone to criminal liability must be written in terms...
The Obama Administration's Unprecedented Lawlessness
INTRODUCTION I. THE TAKE CARE CLAUSE A. The Take Care Clause's History B. The Take Care Clause's Text C. Judicial Interpretations of the Take Care Clause II. RATIONALES FOR NONENFORCEMENT: UNCONSTITUTIONAL STATUTES AND PROSECUTORIAL...
The Paradox of Administrative Preemption
III. THE "CONTINGENT CONCESSIONS" FOR MODERN GOVERNMENT This Part provides a stylized account of how the Framers' structural strategies of separation of powers and federalism have been repackaged to accommodate the modern administrative state. I...
Whose Religion Matters in Corporate RFRA Claims after Burwell V. Hobby Lobby Stores, Inc.?
Some hailed the decision as a victory for religious liberty, establishing that the government cannot ignore religious convictions and force business owners to facilitate what they view as murder. Others decried it as a massive setback for the rule...
Why the NSA Data Seizures Are Unconstitutional
Due to the unauthorized leaks of classified information, we have come to learn that the National Security Agency (NSA), an executive branch arm of the U.S. military, has established several data collection programs. In this article, I am not going...
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