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. 40, No. 1, Winter

America's Exceptional Safety Net
Two notions have achieved conventional wisdom status in many quarters. First, that the United States is a safety net laggard when compared with other highly developed nations; (1) and second, that the obvious thing to do to improve our safety net is...
"An Artificial Being": John Marshall and Corporate Personhood
Two of the Supreme Court's most controversial decisions in recent history--Citizens United v. EEC (1) and Burwell v. Hobby Lobby (2)--both relied on a legal concept that was little-discussed in the majority opinions: corporate personhood. Justice Kennedy's...
A Proposal to Restructure the Clemency Process - the Vice President as Head of a White House Clemency Office
In the midst of the recent presidential campaign, the president's clemency power was a low priority issue. Neither candidate mentioned the subject during the debates or on the stump. The candidates' economic programs, foreign policy vision, and personal...
Defying Conventional Wisdom: The Constitution Was Not the Product of a Runaway Convention
INTRODUCTION I. DID THE CONVENTION DELEGATES EXCEED THEIR AUTHORITY? A. The Call of the Convention 1. The States Begin the Official Process 2. Machinations in New York 3. Congress Responds to the Annapolis ...
Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State
INTRODUCTION I. SEPARATION VERSUS DELEGATION A. Separation of Functions B. Delegation: Encroachment's Other Side C. Early Experiences 1. Law 2. Way man v. Southard II. THE "INTELLIGIBLE PRINCIPLE" TEST: DELEGATION AS...
Economic Equality Is an Immoral Ideal
Capitalism (political and economic freedom) causes economic inequality. (1) Indeed, in most pre-capitalist countries in the world today, there is less inequality than there is in the United States, (2) despite the United States's ranking among the...
Immigration, Freedom, and the Constitution
In recent years, many conservatives have come to favor a highly restrictionist approach to immigration policy. But that position is in conflict with their own professed commitment to principles such as free markets, liberty, colorblindness, and enforcing...
Jump-Starting K-12 Education Reform
Our K-12 educational system is a national catastrophe. Many, if not most, of the public schools we think of as good or excellent are in fact, by international comparisons, average or poor. (1) When we compare ourselves to the other Organization for...
Lesson from the Least of These
I approach the topic of poverty from the perspective of a radical pragmatist. Eighty percent of my closest friends are ex-something, because I have worked most of my professional life in the Center for Neighborhood Enterprise, an organization I founded...
The Freedom to Fail: Market Access as the Path to Overcoming Poverty and Inequality
There are two views of markets. In one view of markets, held perhaps most famously by my former colleague Senator Warren, markets are a place where people are trapped, manipulated, and made worse off. (1) If they borrow money, they'll probably borrow...
The Power to Control Immigration Is a Core Aspect of Sovereignty
Where in our constitutional system is the power to regulate immigration assigned? Professor Ilya Somin argues that the power to regulate immigration is not a power given to Congress because it is not enumerated. (1) But I think it is so clearly a power...
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