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. 39, No. 3, Summer

Hobby Lobby, Corporate Law, and Unsustainable Liberalism
INTRODUCTION I. CHIEF JUSTICE STRINE'S ANALYSIS AND ARGUMENT A. Prolegomena B. The Road to "Social Progress" and Employee Autonomy C. Healthcare in the Crosshairs of the Reformers D. Opting out: The Hobby Lobby...
Hobby Lobby, Corporate Law, and Unsustainable Liberalism
III. RELIGIOUS LIBERTY CABINED BY THE GROWTH IN THE "SECULAR STATE"? Any intelligible effort to define the proper relationship between government and religion is a thorny enterprise that has vexed jurists, clerics, and governments for centuries....
Justice Scalia the Teacher
Clerking for Justice Scalia was not for the faint-hearted. The Justice did not want his clerks all to think alike or always to agree with him. Instead, he wanted us to debate with him about how the Court should best resolve the matters it was considering....
Linguistic Relativism and the Decline of the Rule of Law
INTRODUCTION Nobody today on any side of the political spectrum opposes the rule of law. And for good reason. At a minimum, the rule of law carries with it the idea that legal rules should be certain, so that individuals will not be left at sea...
Preface
This Issue marks the final installment of the Journal's thirty-ninth Volume and of my tenure as its Editor-in-Chief. It begins with three Essays that we did not foresee printing this year, even if we knew the time would inevitably come one day. To...
Prospective Injunctive Relief and Class Settlements
INTRODUCTION I. THE PROBLEMATIC AND PERVERSE INCENTIVES OF CLASS ACTION SETTLEMENTS II. COURTS HAVE NO EXPERTISE IN EVALUATING REGULATORY-STYLE INIUNCTIVE REMEDIES A. The Consent Decree as Historical Foundation B. Regulation...
Prospective Injunctive Relief and Class Settlements
D. Pearson v. NBTY If the Hot Fuel settlements exemplify over-regulation through litigation, the injunctive remedies proposed by the settlement in Pearson v. NBTY, Inc. exemplify mindless underregulation. (122) Both dangers arise when plaintiffs'...
Revitalizing the Clemency Process
INTRODUCTION: PROBLEMS IN THE CRIMINAL JUSTICE SYSTEM I. THE BIRTH AND LIFE OF EXECUTIVE CLEMENCY II. THE DISAPPEARANCE OF EXECUTIVE CLEMENCY A. The Contemporary Decline in the Issuance of Presidential Clemency Grants ...
Revitalizing the Clemency Process
4. Justice vs. Mercy Clemency can be used to ameliorate a punishment that, while permissible in some or even most cases, turns out to be wholly unjust when applied to a specific offender. Jean Valjean is a classic example; (129) statutes imposing...
Technology and the Role of Intent in Constitutionally Protected Expression
INTRODUCTION Intent and context matter enormously in communication. While that has always been true, social media services, smartphones, the cloud, and other recent technological innovations have fundamentally changed the landscape of expression....
The Anti-Casual Justice
One of the many perks of clerking for Justice Scalia was an invitation to his annual law-clerk reunion. For more than a quarter-century, the format was absolutely unchanged: a black-tie dinner in the West Conference Room of the Supreme Court on the...
The FCC's Transaction Reviews and First Amendment Risks
INTRODUCTION In the run-up to the 2004 Presidential election, Pulitzer Prize-and Peabody Award-winning journalist, Carlton Sherwood, made a film featuring Vietnam POWs that cast Democratic nominee Senator John Kerry in an unfavorable light. (1)...
The John M. Olin Fellowships and the Advancement of Conservatism in Legal Academia
"[I]t is merely a question of time until the views now held by the intellectuals become the governing force of politics." (1)--F. A. Hayek INTRODUCTION In his 2008 book The Rise of the Conservative Legal Movement, Johns Hopkins Professor Steven...
The Unknown Achievements of Justice Scalia
The death of Justice Antonin Scalia marks the end of an era in the history of the Supreme Court. One of President Ronald Reagan's greatest gifts to the country he so loved has passed away. The Reagan Supreme Court, which once had four Reagan-appointed...
The Unscripted Evolution of Presidential Nominations: From Founding-Era Idealism to the Dominance of Party Primaries
The field of election law enjoyed something of a renaissance over the first ten years of this young century (1)--perhaps unsurprising given that the decade was bookended by historic rulings in Bush v. Gore (2) and Citizens United v. FEC. (3) In addition...
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