Harvard Journal of Law and Public Policy
Volume 37, Issue 1, Winter 2014
1. Title: Crony Capitalism: Right Here, Right Now
Authors: Macey, Jonathan R.
Abstract: An essay is presented on crony capitalism in the U.S. as of January 2014,
focusing on tax benefits and write-offs from certain parties such as NASCAR race drivers,
companies operating in American Samoa, and the New York Liberty Zone. Political
appointment are mentioned in relation to the U.S. Senate's confirmation of government
official Jack Lew as the nation's Secretary of the Treasury and attorney Mary Jo White as
the head of the U.S. Securities and Exchange Commission.
2. Title: Preface
Authors: West, Kyle.
Abstract: An introduction is presented in which the Editor-in-Chief discusses various
reports within the issue on topics including the U.S. Constitution's Recess Appointments
and Equal Protection Clauses, as well as a diversity of citizenship requirement in U.S.
federal courts.
3. Title: The Legitimate Reach of the Environmental Revolution
Authors: Blais, Lynn E.
Abstract: An essay is presented on the legitimate reach the environmental revolution
which reportedly occurred in the U.S. during the late 1960s and early 1970s, focusing on
state sovereignty, environmental regulations and statutes, and the potential impacts of
federal environmental laws on private property rights in America as of January 2014. The
U.S. National Environmental Policy Act and amendments to the nation's Clean Air Act are
mentioned, along with efforts to combat environmental crises.
4. Title: Modern Environmentalists Overreach: A Plea for Understanding
Background Common Law Principles
Authors: Epstein, Richard A.
Abstract: An essay is presented on the reported overreach of modern environmentalists
in America in relation to common law principles in the U.S. and the damage caused by
pollution from natural and human sources as of 2014. American environmental laws and
safeguards are addressed, along with the administrative costs associates with the
implementation of a complex regulatory scheme. Other topics include pollution risks, the
private law of nuisance, and a strict liability legal doctrine in the U.S.
5. Title: Against the Epa, Absurdity Is No Defense
Authors: Rabkin, Jeremy A.
Abstract: An essay is presented on the U.S. Environmental Protection Agency (EPA),
absurdity, and environmental regulations in America during the 1970s, focusing on
environmental advocacy and the U.S. Clean Water Act of 1972. The U.S. Congress and
the regulation of bodies of water in America are mentioned, including information on
statutes which were enacted to govern navigable waterways. Several legal cases are
examined, including proceedings involving the U.S. Corps of Engineers and the EPA.
6. Title: Intent-Optional Criminal Statutes: A Plea For Reform, And A Note of Caution
To Reformers
Authors: Otis, William G.
Abstract: An essay is presented on intent-optional criminal statutes in America as of
January 2014, focusing on federal police power, American courts, and criminal law reform
efforts in the U.S. Criminal punishment is addressed in relation to federal statutes in
America, bad intent, and intentional misbehavior. Criminal sanctions are mentioned, along
with federal gun-control legislation in the U.S., gun violence, and the nation's Department
of Justice.
7. Title: The Federal Criminal "Code": Return of Overfederalization
Authors: O'sullivan, Julie Rose.
Abstract: An essay is presented on the collection of criminal laws and regulations which
make up the U.S. criminal code as of January 2014, focusing on a report which claims that
the U.S. has overcriminalized and overfederalized the nation's criminal laws. Federal
crimes and criminal prohibitions in America are mentioned, along with the U.S. Congress'
delegation of legislative power to federal agencies. Prosecutorial discretion, federal courts,
and the mens rea criminal intent theory are also examined.
8. Title: The Spending Power after Nfib V. Sebelius
Authors: Baker, Lynn A.
Abstract: An essay is presented on the U.S. Congress' authority under the Spending
Clause of the nation's Constitution as of January 2014, focusing on the U.S. Supreme
Court's (USSC's) interpretation of the modern spending power doctrine in America in
relation to the 2012 legal case National Federation of Independent Business (NFIB) v.
Sebelius which deals with the "Medicaid expansion" provision of the U.S. Patient
Protection and Affordable Care Act (ACA). Other USSC cases and court tests are
examined.
9. Title: Coercion, Conditions, and Commandeering: A Brief Note On the Medicaid
Holding Of Nfib V. Sebelius
Authors: Greve, Michael S.
Abstract: An essay is presented on the coercion legal principle in relation to federal
funding programs in America and the U.S. Supreme Court's ruling in the 2012 case
National Federal of Independent Business v. Sebelius which deals with a constitutional
challenge to the expansion of the nation's Medicaid insurance program under the U.S.
Patient Protection and Affordable Care Act. Conditional spending programs and duress
are mentioned, along with the views of conservatives on unfunded mandates.
10. Title: Viva Conditional Federal Spending
Authors: Bagenstos, Samuel R.
Abstract: An essay is presented on conditional federal spending in America and various
constitutional challenges to the U.S. Patient Protection and Affordable Care Act (ACA) as
of January 2014. Various U.S. Supreme Court (USSC) limitations on federal power are
addressed, along with Medicaid insurance in America and the legal scope of the U.S.
Constitution's Spending Clause. USSC Chief Justice John Roberts and federalism are
examined, as well as judicial opinions by American courts.
11. Title: The Supreme Court's Perversion Of The 1964 Civil Rights Act
Authors: Graglia, Lino A.
Abstract: An essay is presented on the status of the U.S. Civil Rights Act of 1964 in the
aftermath of several rulings by the U.S. Supreme Court (USSC), focusing on various
sections of the civil rights law which deal with issues such as race discrimination by hotels,
public grade school education in America, and discrimination in employment. According to
the article, USSC Justices have usurped the U.S. Congress' legislative power. Racial
segregation and integration efforts in schools are mentioned.
12. Title: The Odd Evolution of the Civil Rights State
Authors: Melnick, R. Shep
Abstract: The article discusses the evolution of the civil rights state in America as of
January 2014, focusing on the nation's regulatory regime since 1964 in relation to the
interpretation and enforcement of nondiscrimination rules relating to race, gender, and
disability in the U.S. A reported lack of transparency in government is addressed, along
with various statutes such as the U.S. Civil Rights Act of 1991. Affirmative action programs
and the attitudes of American voters are also examined.
13. Title: Intellectual Diversity in the Legal Academy
Authors: Rosenkranz, Nicholas Quinn.
Abstract: An essay is presented on intellectual diversity in the legal academic community
in America as of January 2014, focusing on a reported lack of conservative, libertarian,
and Republican law professors at U.S. law schools such as Georgetown Law School in
Washington, D.C. Political ideology is examined in regards to the U.S. Congress' passage
of the Solomon Amendment which withheld certain federal funds from colleges and
universities that were restricting military recruiters from various campuses.
14. Title: The Uneasy Case for Intellectual Diversity
Authors: Paulsen, Michael Stokes.
Abstract: An essay is presented on intellectual diversity in law school faculties in America
as of January 2014, focusing on the reported efforts to resist the allowance of competing
ideas in law school classrooms and faculty lounges. According to the article, people
should never value intellectual diversity over intellectual truth. The Groupthink theory of
communication is mentioned in relation to academic settings and the truth-seeking
process. Errors, extremism, and falsity are also examined.
15. Title: Toward Improved Intellectual Diversity In Law Schools
Authors: Dent Jr., George W.
Abstract: An essay is presented on the efforts to improve intellectual diversity in
American law schools as of January 2014, focusing on a claim that U.S. law school
faculties tend to be occupied by individuals who espouse left-leaning political ideas. The
"Intellectual Diversity and the Legal Academy" conference, which was held at Harvard
Law School in Cambridge, Massachusetts on April 5, 2013, is mentioned. The Association
of American Law Schools (AALS) and political ideology are also examined.
16. Title: Legal Academia and the Blindness of the Elites
Authors: Campos, Paul.
Abstract: An essay is presented on the views of elites and a reported lack of intellectual
diversity on the faculties of U.S. law schools as of January 2014, focusing on the hiring
practices for law professors and the impact of those practices on legal academia as a
whole. According to the article, a strong plurality of the faculty members at most American
law schools are graduates of either Harvard Law School or Yale Law School. Law school
tuition and salaries for attorneys are examined.
17. Title: How the Law School Can Succeed--An Invitation
Authors: Girgis, Sherif.
Abstract: An essay is presented on the ways in which American law schools can succeed
as of January 2014, focusing on a push for academic reform in relation to a reported lack
of intellectual diversity among the faculties and student bodies at U.S. law schools.
Political party affiliation and the ideological views of law school professors are addressed,
along with social norms and conservative viewpoints. Career development for law
students in the U.S. is examined, along with the pursuit of knowledge.
18. Title: The Origins and Meaning of "Vacancies That May Happen During the
Recess" In the Constitution's Recess Appointments Clause
Authors: Natelson, Robert G.
Abstract: There has been longstanding uncertainty about the meaning of "the Recess"
and "Vacancies that may happen" in the Constitution's Recess Appointments Clause. This
Article finds that both "the Recess" and close variants of "Vacancies that may happen"
were standard terms in Founding-Era legislative practice, and appear copiously in
legislative records. Those records inform us that "the Recess" means only the
intersession recess and that a vacancy "happens" only when it first arises.
19. Title: Crack Cocaine, Congressional Inaction, and Equal Protection
Authors: Larkin Jr., Paul J.
Abstract: The article discusses crack cocaine, congressional inaction, and equal
protection law in the U.S. as of January 2014, focusing on the nation's Anti-Drug Abuse
Act of 1986 and various U.S. policies on criminal justice, drugs, and race. According to the
article, many of the defendants who were convicted of distributing crack cocaine have
claimed that the sentencing provisions of the Anti-Drug Abuse Act of 1986 violate the Fifth
Amendment to the U.S. Constitution's Due Process Clause.
20. Title: Complete Diversity and the Closing Of The Federal Courts
Authors: Cooper, Charles J.; Nielson Jr., Howard C.
Abstract: The article discusses a complete diversity federal jurisdiction requirement in
relation to all of the plaintiffs and defendants in a particular lawsuit as of January 2014,
focusing on parties to a legal action, diversity jurisdiction, and restricted access to federal
courts in America. According to the article, America's federal judiciary was established
under Article III of the U.S. Constitution (USC). Judicial power and the framers of the USC
are mentioned, along with state courts.
21. Title: Looking Back To Look Forward: Reexamining the Application of The
Third-Party Doctrine To Conveyed Papers
Authors: Ernst, Colleen Maher.
Abstract: The article discusses a reexamination of the application of the third-party
doctrine to conveyed papers and records as of January 2014, focusing on the U.S.
Supreme Court's ruling in the case United States v. Jones which deals with trespass,
search and seizure laws, and a reasonable expectation of privacy. According to the article,
the third-party doctrine states that individuals lose their Fourth Amendment to the U.S.
Constitution protection for information knowingly revealed to third parties.
22. Title: The Return of Classical Political Question Doctrine in Zivotofsky Ex Rel.
Zivotofsky V. Clinton, 132 S. Ct. 1421 (2012).
Authors: Szurkowski, Carol.
Abstract: The article discusses the American judiciary's application of the classical form
of the political question doctrine in cases such as 2012's Zivotofsky ex rel. Zivotofsky v.
Clinton which deals with an attempt by an American citizen who was born in Jerusalem to
have Israel listed as his birthplace on his passport. According to the article, courts will
dismiss cases under the classical form of the political question doctrine only when the text
and structure of the U.S. Constitution demands it.
23. Title: A "[Non]Essential Limit On Our Power": Standing Doctrine And Judicial
Restraint In Hollingsworth V. Perry, 133 S. Ct. 2652 (2013).
Authors: Abbotoy, Joshua.
Abstract: The article discusses the U.S. Constitution's standing doctrine in relation to the
jurisdiction that is granted to federal courts in America regarding "Cases" and
"Controversies," focusing on the U.S. Supreme Court's (USSC's) ruling in the 2013 case
Hollingsworth v. Perry which deals with judicial restraint and a constitutional challenge to
California's Proposition 8 same-sex marriage initiative. According to the article, a plaintiff
must suffer an "injury in fact" to establish standing.