Harvard Journal of Law & Public Policy articles from June 2006

Harvard Journal of Law & Public Policy archives from June 2006

Term limits for the Supreme Court: life tenure reconsidered.
June 22, 2006... INTRODUCTION I. THE NEED FOR REFORM: THE EXPANSION OF LIFE TENURE A. The Expansion of Life Tenure Documented B. Periodization and Related Empirical Issues C. Explaining the Trends in Life Tenure...

The ideological stakes of eliminating life tenure.(response to article by Steven G. Calabresi and James Lindgren in this issue, p. 769)
June 22, 2006... Professors Calabresi and Lindgren have written the strongest attack yet on life tenure for Supreme Court Justices. I congratulate them on their effort and am grateful for the chance to offer some comments on it. I saw a previous draft of their...

The making of a new copyright Lockean.
June 22, 2006... I. INTRODUCTION: TWO FATAL FLAWS A. The Ubiquity of Lockean Justifications in Copyright Discourse B. A Rejoinder to Contemporary Copyright Lockeans: The Two Fatal Flaws II. INDISPUTABLE LOCKEAN COPYRIGHT ...

An economic assessment of same-sex marriage laws.
June 22, 2006... This Article argues that marriage is an economically efficient institution, designed and evolved to regulate incentive problems that arise between a man and a woman over the life cycle of procreation. As such, its social and legal...

Toward a basal Tenth Amendment: a riposte to national bank preemption of state consumer protection laws.
June 22, 2006... Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but also to their...

Before Roe v. Wade: Judge Friendly's draft abortion opinion.
June 22, 2006... It is well known that Henry J. Friendly was one of the greatest judges in our nation's history. (1) Along with Holmes and Brandeis and Learned Hand, he was certainly one of the most brilliant. What is not known is that in 1970, three years...

Federalism on ice: state and local enforcement of federal immigration law.
June 22, 2006... I. INTRODUCTION In October 2002, Lee Malvo, a young illegal alien from Jamaica, who along with John Allen Muhammed became known as the "D.C. Snipers," went on a deadly shooting spree in the Washington, D.C. area. (1) From 1996 to 1999,...

Flexible standards, deferential review: Daubert's legacy of confusion.
June 22, 2006... I. INTRODUCTION Expert evidence--particularly expert scientific evidence--has long been thought to require special treatment in the courtroom. (1) Concern about "junk science" and fear that jurors will be easily impressed by such evidence...

Uncovering coherence in compelled subsidy of speech doctrine: Johanns v. Livestock Marketing Ass'n.
June 22, 2006... A large number of agriculture products are generically advertised through federal or state-led promotion programs funded by mandatory assessments ("checkoffs") imposed on producers. (1) Since their inception in the 1980s, these checkoff...

Defining the court's role as faithful agent in statutory interpretation: Exxon Mobil Corp. v. Allapattah Services, Inc.
June 22, 2006... The Supreme Court has long failed to provide guidance to lower courts as they seek to interpret the meaning of ambiguous congressional enactments. Thus it was no surprise that after Congress passed the Judicial Improvements Act of 1990, (1)...

Unjustly usurping the parental right: Fields v. Palmdale School District.
June 22, 2006... The right of a parent to control his child's upbringing is one of the few fundamental rights recognized by courts as protected under the doctrine of substantive due process. (1) Rooted in vague pronouncements made in two cases decided in the...