Harvard Journal of Law & Public Policy articles from September 2006

Harvard Journal of Law & Public Policy archives from September 2006

The comparative disadvantage of customary international law.(International Rule of Law)
September 22, 2006... International law is as important a topic as any to our future legal regime. International law increasingly infiltrates the domestic world. Some United States Supreme Court justices appear to use international law, including unratified...

The rule of international law.(International Rule of Law)
September 22, 2006... I. This Article will focus on how one should think about the rule of law in the international arena. Asking about the rule of law in the international arena is not just asking whether there is such a thing as international law, or what it...

American self-defense shouldn't be too distracted by international law.(International Rule of Law)
September 22, 2006... INTRODUCTION Since the attacks of September 11, 2001, the United States government has pursued a series of energetic policies designed to protect America from the threat of Islamist terror networks. (1) Some of these policies are intensely...

The constitutional status of customary international law.(International Rule of Law)
September 22, 2006... The question of the hour is: "How does international law limit the war on terror?" Constraints of space restrict this piece to the role that customary international law plays in the war. The answer to the more specific question--"How does...

Executive power v. international law.(International Rule of Law)
September 22, 2006... INTRODUCTION Presidents have long had an uneasy relationship with international law. If it is true that most states follow most international law most of the time, that probably goes for Presidents, too. Whether Presidents follow...

Enforceability of international tribunals' decisions in the United States.(International Rule of Law)
September 22, 2006... The United States has committed itself to many international institutions that make decisions affecting this country's rights and duties under international law. These international decision-making bodies include the International Court of...

Enforcing the Avena decision in U.S. Courts.(International Rule of Law)
September 22, 2006... The Avena decision (1) concerned Article 36 of the Vienna Convention on Consular Relations, a treaty that the United States ratified in 1969. (2) Article 36 provides that a party country that arrests a national from another party country is...

International adjudicators and judicial independence.(International Rule of Law)
September 22, 2006... What are the consequences to the United States legal system of the decisions of adjudicatory tribunals acting pursuant to treaties and other international agreements to which the United States is a party? This question and its variants are...

Executive power in foreign affairs.(International Rule of Law)
September 22, 2006... Article II of the U.S. Constitution begins by declaring that "the executive Power shall be vested in a President of the United States of America." (1) This so-called Executive Vesting Clause has been the subject of intense constitutional...

The textual basis of the president's foreign affairs power.(International Rule of Law)
September 22, 2006... What I want to present here is, if not an alternative to Justice Robert Jackson's famous Youngstown framework, (1) at least a complement to that framework for approaching the President's foreign affairs power. My central proposition is that the...

The most dangerous branch abroad.(International Rule of Law)
September 22, 2006... INTRODUCTION Let me start by pledging allegiance, at least for the purposes of this exchange, to several principles of constitutional interpretation that I suspect command widespread support among a group of Federalist Society members such...

Foreign and international law sources in domestic constitutional interpretation.(International Rule of Law)
September 22, 2006... In recent years, several controversial judicial decisions have pushed the use of foreign and international law sources for domestic constitutional interpretation to the forefront of scholarly discussion. Many legal scholars debate whether the...

International law as a resource in constitutional interpretation.(International Rule of Law)
September 22, 2006... I. Despite recent polemics, the use of international law in constitutional interpretation, as one factor among others, is highly traditional and eminently proper. Some international law is too important to the place of the United States in...

Constitutional law and transnational comparisons: the Youngstown decision and American exceptionalism.(International Rule of Law)
September 22, 2006... In his dissent in Roper v. Simmons, Justice Antonin Scalia bemoaned the "brave new meaning" that the Court had given the Due Process and Equal Protection Clauses and, by implication, the Eighth Amendment. (1) One of his principal complaints...

Foreign sources and the American Constitution. (International Rule of Law)
September 22, 2006... Everyone is talking about foreign law. No surprise here, because it is the topic of this symposium. But the Justices of the Supreme Court are addressing it in and out of court-Justice Scalia has debated Justice Breyer in a road-show tour and...

Contracting out of the culture wars: how the law should enforce and communities of faith should encourage more enduring marital commitments.
September 22, 2006... INTRODUCTION I. BACKGROUND A. Changing Conceptions of Morality and the Proper Role of Law B. Attempts to Fix Marriage 1. Legal Efforts to Strengthen Marriage 2. Non-legal Efforts to Strengthen ...

The law and economics of software security.
September 22, 2006... INTRODUCTION I AN OVERVIEW OF SOFTWARE SECURITY A. What is Software System Security? 1. Types and Methods of Attack 2. Types of Damage B. Identifying Cyber-Criminals and Their Motivations II. THE...

Law outside the market: the social utility of the private foundation.
September 22, 2006... INTRODUCTION I. A THEORY OF THE PRIVATE FOUNDATION A. The Theory B. Two Primary Functions of Foundations II. THE EVOLUTION OF OPPORTUNITY IN AMERICA III. THE PRIVATE FOUNDATION A. Development of the Private...

Don't knock them until we try them: civil suits as a remedy for knock-and-announce violations after Hudson v. Michigan.
September 22, 2006... The sight of law enforcement officers knocking on a door and yelling "Police!" is more than just television drama. In fact, the idea that police should knock and announce their presence before entering is an ancient requirement that has its...

The slow, just, unfinished demise of the Buckley compromise: Randall v. Sorrell.
September 22, 2006... In 1976, the Supreme Court decided Buckley v. Valeo, (1) laying out the fundamental compromise that has guided campaign finance decisions ever since. Buckley held that though the government could not restrict how much a campaign spent, it could...

Equipoise, collective rights and the future of the death penalty: Kansas v. Marsh.
September 22, 2006... The evaluation of evidence is an inherently subjective process, yet deliberating jurors are routinely expected to rummage for purportedly objective criteria such as "reasonable doubt." No less troublesome is the concept of equipoise. In the...

Elevating choice over quality of representation: United States v. Gonzalez-Lopez.
September 22, 2006... The Supreme Court's Counsel Clause jurisprudence generally has been preoccupied with the effect of alleged violations on the fairness and reliability of the trial process. (1) This approach seemed ripe for reexamination after Crawford v....