Harvard Journal of Law & Public Policy articles from January 2008

Harvard Journal of Law & Public Policy archives from January 2008

On the foundations and nature of morality. (Symposium: Law and Morality)
January 1, 2008... INTRODUCTION Remarks on so vast a topic as the foundations and nature of morality must be focused by the subject with which the Symposium is concerned--namely, the relationship between law and morality. Insofar as half of "law and...

Moral choices, moral truth, and the Eighth Amendment.(Symposium: Law and Morality)
January 1, 2008... What passes for normative scholarship in the law schools is often little more than making public the topography of the author's mind. I suppose this practice does have a certain appeal akin to the great national fascination with reality shows...

Methodology, proportionality, equality: which moral question does the Eighth Amendment pose?(Symposium: Law and Morality)
January 1, 2008... The words of the Eighth Amendment have a history much longer than the life of the Amendment itself. When the First Congress chose to include those words in the United States Constitution's Bill of Rights, the assembled legislators were...

Morality in Eighth Amendment jurisprudence. (Symposium: Law and Morality)
January 1, 2008... INTRODUCTION Morality in Eighth Amendment jurisprudence is but one aspect of a more general topic: the use of moral reasoning by judges in American constitutional interpretation. Seeing the role of moral reasoning through the prism of the...

Government promotion of moral issues: gambling, smoking, and advertising.(Symposium: Law and Morality)
January 1, 2008... What makes gambling, smoking, and advertising and the encouragement of those activities "moral" issues? The use of the word "moral" should prompt the question: From what is "moral" being distinguished? This Essay tries to avoid use of the word...

What is the government's role in promoting morals? ... Seriously?(Symposium: Law and Morality)
January 1, 2008... In thinking about the government's proper role in promoting morals, it is helpful first to understand the nature of the disagreement. Part I of this Essay examines what is commonly meant by--as the great Lon Fuller described it--the "morality...

How to reverse government imposition of immorality: a strategy for eroding Roe v. Wade.(Symposium: Law and Morality)
January 1, 2008... The topic of this Symposium is the relationship between law and morality. The essays in this volume adeptly explore the theory of this relationship, track its historical path, and address pressing legal and moral issues of our time. The very...

The morality of First Amendment jurisprudence.(Symposium: Law and Morality)
January 1, 2008... Many people argue that government cannot, or should not, try to dictate morality. (1) But the judiciary, particularly the United States Supreme Court, has dictated immorality through First Amendment jurisprudence. What has achieved greater...

Why Phyllis Schlafly is right (but wrong) about pornography. (Symposium: Law and Morality)
January 1, 2008... Phyllis Schlafly is wrong about the regulation of pornography, but her views need to be taken more seriously than they typically are in the overwhelmingly liberal academy. She represents an important tradition in thinking about gender issues,...

The federalist approach to the First Amendment.(Symposium: Law and Morality)
January 1, 2008... In this Essay, I propose that the First Amendment should be applied much more stringently against the federal government than it is against the States. Under this view, the federal government should be subject to severe restrictions under the...

Gay sex and marriage, the reciprocal disadvantage problem, and the crisis in liberal constitutional theory.(Symposium: Law and Morality)
January 1, 2008... There is nothing unusual about constitutional controversy, but some disagreements, typified by the argument over constitutional protection for gay sex and marriage, go beyond ordinary differences of opinion. Some opponents of constitutional...

Moral duty and the rule of law.(Symposium: Law and Morality)
January 1, 2008... In his immortal play A Man for All Seasons, Robert Bolt provides a fictional account of an argument between Sir Thomas More, who served as the Chancellor of England and would later become the patron saint of lawyers and judges, and his...

Natural law.
January 1, 2008... Oliver Wendell Holmes, the legal philosopher and judge whom Richard Posner has, with admiration, dubbed "the American Nietzsche," (1) established in the minds of many people a certain image of what natural law theories are theories of, and a...

Dred Scott revisited.
January 1, 2008... I. It has been many years since I first wrote that the American Revolution was, at once, an event in time and an idea out of time. (1) Lincoln meant no less when he wrote that Jefferson enshrined in the Declaration of Independence "an...

Marriage facts.
January 1, 2008... Do constitutional norms, particularly of equality and liberty, require the redefinition of marriage from the union of a man and a woman to the union of any two persons? In the present judicial contest over this issue, the real dispute is not...

"Play in the joints": the struggle to define permissive accommodation under the First Amendment.
January 1, 2008... INTRODUCTION In the two decades since the Supreme Court left open the door for permissive religious accommodation in Employment Division v. Smith, (1) the Court has only obscured the doctrine further by creating multiple and overlapping...

Enemy combatants and a challenge to the separation of war powers in Al-Marri v. Wright.
January 1, 2008... Few legal issues are more controversial today than the scope of the President's authority to detain individuals as enemy combatants. Although that enormous power is described nowhere in the Constitution, it was "the practice of our own military...

Saying what the law should be: judicial usurpation in Al-Marri v. Wright.
January 1, 2008... Al-Marri v. Wright (1) is the most recent case in the struggle to define who qualifies as an enemy combatant in the Global War on Terror. In Al-Marri, the Fourth Circuit, in contrast with its previous ruling in Padilla v. Hanft, (2) found that...

Justices in the jury box: video evidence and summary judgment in Scott v. Harris.
January 1, 2008... Some scholars have expressed concern that judges are encroaching on the fact-finding role of the jury through the use of summary judgment. (1) This concern is more acute in cases that turn on fact-specific inquiries, such as lawsuits where the...