Harvard Journal of Law & Public Policy articles from January 1 2009

Harvard Journal of Law & Public Policy archives from January 1 2009

Judicial review, local values, and pluralism. (Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... I. "It is," the Twenty-Seventh Annual National Federalist Society Student Symposium program reports, "a basic assumption of federalism that individual communities can be different; they may have different values, and they will certainly...

Counting states.(Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... The United States Supreme Court frequently bases federal constitutional doctrine on state law, (1) often doing so by counting states' laws in a variety of doctrinal contexts to determine the legislative consensus among the States. For instance,...

Voting with your feet is no substitute for constitutional rights.(Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... I. THE DOWNSIDE OF VOTING WITH YOUR FEET The organizers of this Symposium (1) gave each panel a brief summary of the panel's intended topic. I want to take a part of that summary as the subject of my commentary: "It is a benefit of...

Norm change or judicial decree? The courts, the public, and welfare reform.(Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... The topic for this panel--the relationship between community values and judicial decision making--calls to mind Supreme Court cases on high-profile issues that have provoked strong criticism from the public. Decisions regarding church-state...

The merits of merit selection.(Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... I. TRANSITIONS IN JUDICIAL SELECTION METHODS A. From Appointment to Election B. From Partisan to Non-Partisan Elections C. From Non-Partisan Elections to Merit Selection D. Alternatives to Merit Section ...

Merit selection: choosing judges based on their politics under the veil of a disarming name.(Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... Given the dispute in this country about the proper role of judges and how the people perceive what judges are doing, any sophisticated observer must conclude that judicial selection in the United States today is "political." (1) People, whether...

Achieving equal treatment through the ballot box. (Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... Since the founding of the United States, the relationship between the citizens and their government has been central to the definition of our nation. We were established as a nation of individuals who rely on certain "self-evident truths" (1)...

Political responses to Supreme Court decisions. (Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... I. REPRESENTATIVE DEMOCRACY AT THE CONSTITUTIONAL CONVENTION Direct democracy, as Professor Clark has pointed out, is not necessarily the people talking. (1) Quite appropriately, he has focused on the ways in which representative...

Law and economics: realism or democracy? (Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... Is law and economics anti-democratic? One hears complaints from many quarters that law and economics is a form of technocracy that cuts off legitimate debate and suppresses other important values that people hold dear. (1) On this view, law and...

An interpretivist judge and the media. (Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... The debate over the role of the judiciary has been particularly intense in Michigan for the past decade. With four of the seven justices on the Michigan Supreme Court committed to a traditional jurisprudence--one that views the responsibility...

Limits of interpretivism.(Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... INTRODUCTION I. INTERPRETIVISM AND TEXTUALISM II. TEXTUALISMAND RULES III. TEXTUALISM AND ORIGINALISM IV. ORIGINALISM AND CONSTRAINT V. ORIGINALISM AND TRADITION CONCLUSION INTRODUCTION Justice Stephen Markman sits on the...

A response to Professor Primus. (article by Richard Primus in this issue, p. 159) (Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... Professor Richard Primus and I participated on a panel before the National Federalist Society Student Symposium at the University of Michigan Law School concerning the media's coverage of the judiciary, (1) and my assigned remarks, reprinted in...

Sodomy and guns: tradition as democratic deliberation and constitutional interpretation. (Twenty-Seventh Annual National Federalist Society Student Symposium)
January 1, 2009... INTRODUCTION I. TRADITION KNOWN TO THE FRAMERS AS EVIDENCE OF ORIGINAL MEANING A. Anachronism: The Changed Circumstances Problem B. Cherry-Picking Problems: How Is Tradition Interrogated and...

Tools against terror: all of the above.
January 1, 2009... With the impending inauguration of a new President, now is an opportune time to assess whether the homeland is safer today than on the morning of September 11, more than seven years ago. It is also a fitting time to discuss the implications of...

Public displays of affection ... for God: religious monuments after McCreary and Van Orden.
January 1, 2009... INTRODUCTION I. MCCREARY AND VAN ORDEN A. McCreary B. Van Orden II. REFLECTIONS ON MCCREARYAND VAN ORDEN III. TWO "PURPOSE" APPROACHES AFTER MCCREARY AND VAN ORDEN A. Skeptical Approach: Buono I-IV...

Manliness and the constitution.
January 1, 2009... INTRODUCTION I. THOMAS HOBBES: HOW HYPERMASCULINITY NECESSITATES ABSOLUTE MONARCHY II. ROBERT FILMER: THE AUTHORITY OF THE FATHER AND THE MANLY MONARCH III. LOCKE'S ATTACK ON PATRIARCHALISM AND ABSOLUTE MONARCHY ...

Marketing pharmaceutical products in the twenty-first century: an analysis of the continued viability of traditional principles of law in the age of direct-to-consumer advertising.
January 1, 2009... INTRODUCTION I. MARKETING AND REGULATION OF PHARMACEUTICALS FROM PAST TO PRESENT A. Concepts of Product Mislabeling and Pre-Market Regulation B. Establishment of the Modern Regulatory Regime for...

Returning to the PruneYard: the unconstitutionality of state-sanctioned trespass in the name of speech.
January 1, 2009... In PruneYard Shopping Center v. Robins, (1) the United States Supreme Court held that the owner of a private shopping center who was required by a state court to grant political solicitation and speaking rights to strangers had thereby suffered...

The Rise of the Conservative Legal Movement: The Battle for Control of the Law.(Book review)
January 1, 2009... INTRODUCTION I. THE CONSERVATIVE-LIBERTARIAN CHALLENGE TO THE LEGAL LEFT II. LESSONS FOR THE STUDY OF LEGAL CHANGE A. The Demand and Supply of Resources for Legal Change B. Limitations of Teles's...

Inventing the "right to vote" in Crawford v. Marion County Election Board.
January 1, 2009... Although it has become almost axiomatic that the franchise is a "fundamental right" (1) possessed by all Americans, it remains very much open to question whether the Constitution was ever intended to bestow the broad-based right envisioned by...