Carter, Jennifer, Harvard Journal of Law & Public Policy
Volume 29 opens in the midst of a tumultuous and potentially pivotal chapter in American legal history. As the nation anticipates a new epoch for the Supreme Court, the Senate continues to grapple with its relationship to the President and the judiciary. Judges, scholars, and lawyers struggle daily with the myriad legal questions generated in the war on terrorism, by emerging technologies, and over the content and scope of individual rights; the public has energetically taken its elected representatives to task over these legal issues. We hope that these pages offer constructive contributions in these areas, in keeping with this Journal's tradition of advancing outstanding conservative and libertarian scholarship.
This Issue begins with eight papers from the Twenty-Fourth Federalist Society Student Symposium, Law and Freedom. We are pleased to present these Symposium highlights, which include competing views on the philosophical underpinnings of freedom, the intersection of freedom and identity, and the trade-off between freedom and security in the war on terrorism.
Next, in view of the hotly contested issue of the proper role of the Senate in confirming the President's judicial nominees, Mr. Adam White has investigated the Framers' understanding of the Advice and Consent Clause. His Article features original historical research into the practice of advice and consent in early Massachusetts, upon which the constitutional clause was based, and concludes that in the original understanding, the Senate does not have an affirmative constitutional duty to vote up or down on a nominee.
Professor Tung Yin's latest contribution to post-September 11 scholarship presents a framework for the detention and release of enemy combatants held at Guantanamo Bay. After discussing traditional military and law-enforcement mechanisms, he concludes that neither set of norms provides a workable fit for the novel challenges of the war on terrorism. His proposal for a noncriminal process draws on analogies to pretrial detention, civil commitment, and medical quarantine.
Dr. Robert Hahn and Professor Paul Tetlock present a proposal for the design and use of information markets in public decision making as an advancement over existing cost-benefit analysis tools. …