Harvard Journal of Law and Public Policy
Volume 36, Issue 1, Winter 2013
1. Title: The Perilous Position of the Rule of Law and the Administrative State
Authors: Epstein, Richard A.
Abstract: An essay is presented on the rule of law, public administration, and
administrative laws in America as of January 2013, focusing on a historical analysis of
various administrative agencies and policies in the U.S. such as the nation's Interstate
Commerce Act of 1887 and the Federal Trade Commission. A comparison of the
government agencies in America and Great Britain is provided, along with the
administrative regulation of prisons and schools. Federal government growth in the U.S. is
examined.
2. Title: Preface
Authors: Oberman, Irina.
Abstract: An introduction is presented in which the Editor-in-Chief discusses various
reports within the issue on topics including administrative laws in the U.S., the Religion
Clauses contained in the First Amendment to the nation's Constitution, and the U.S.
Supreme Court's historical use of Originalism.
3. Title: The Rule of Law and the Inevitability of Discretion
Authors: Shane, Peter M.
Abstract: An essay is presented on the rule of law, the constraint of government
discretion, and administrative laws in the U.S. as of January 2013, focusing on Professor
Richard Epstein's views towards the administrative state in America, as well as the U.S.
Congress' discretionary power to delegate its lawmaking authority under the nation's
Constitution. Other topics include the powers of the executive branch, the author's book
"Madison's Nightmare," and the U.S. Federal Communications Commission.
4. Title: Corralling Capture
Authors: Engstrom, David Freeman.
Abstract: An essay is presented on the regulatory capture principle and U.S.
administrative laws as of January 2013, focusing on an analysis of the public interest,
collective action problems, and financial deregulation. The American financial services
industry is addressed, along with administrative rulemaking under the nation's
Administrative Procedure Act, as well as the U.S. Department of Justice's oversight of qui
tam litigation under the nation's False Claims Act.
5. Title: Congressional Abdication: Delegation Without Detail and Without Waiver
Authors: Gray, C. Boyden.
Abstract: An essay is presented on the U.S. Congress' authority to delegate its
lawmaking powers to other government agencies and entities as of January 2013,
focusing on the nation's Wall Street Reform and Consumer Protection (Dodd-Frank) Act
and its creation of several bureaucracies such as the Orderly Liquidation Authority (OLA)
and the Consumer Financial Protection Bureau (CFPB). An apparent lack of guidance in
terms of the operation of the OLA and the standards of the CFPB are addressed.
6. Title: American Executive Power in Historical Perspective
Authors: Cuéllar, Mariano-Florentino.
Abstract: An essay is presented on the history of executive power in the U.S. as of
January 2013, focusing on the decisionmaking powers of presidential administrations, and
several legal cases including the U.S. Supreme Court (USSC) case Motor Vehicle
Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co. (State Farm). USSC
Justice William Rehnquist's concurring opinion in the State Farm case is addressed, along
with the political views of former U.S. President Ronald Reagan's administration.
7. Title: Reconsidering the Modern Hanoverian King
Authors: Levinson, Sanford.
Abstract: An essay is presented on executive power in the U.S., the lack of congressional
oversight for presidential assistants known as czars, and a reported bipartisan
dissatisfaction with contemporary American governance as of January 2013. Other topics
include radicalism, U.S. administrative laws, and the relative powers of the nation's
Congress and executive agencies. The U.S. Administrative Procedure Act and a call for
congressional reform are also mentioned.
8. Title: President Obama and the Framers' Presidency
Authors: Yoo, John.
Abstract: An essay is presented on U.S. President Barack Obama, American
constitutional law, and the beliefs of the Framers of the U.S. Constitution in regards to the
powers of the executive branch as of January 2013. Obama's apparent focus on domestic
policy during his first term in office is addressed, including his administration's work in
delaying the construction of aerospace company Boeing Co.'s plant in a right-to-work
state, as well as the construction of the Keystone XL pipeline.
9. Title: Can Technological Innovation Survive Government Regulation
Authors: Epstein, Richard A.
Abstract: An essay is presented on the relationship between technological innovation
and government regulation in America as of January 2013, focusing on the role of
regulation as a means of protecting the rights of U.S. property owners. The legal aspects
of technology are addressed, along with America's intellectual property system and the
nation's network industry system which includes railroads and telecommunications. The
U.S. Copyright Act and the nation's Patent and Trademark Office are mentioned.
10. Title: Regulation and Technology
Authors: Falzone, Anthony.
Abstract: An essay is presented on the relationship between technology and government
regulation in the U.S. as of January 2013, focusing on the American government's role in
regulating the Internet, including issues related to the privacy rights of Internet users.
Other topics include open architecture, the U.S. government's Do Not Track proposals
regarding Internet usage, and the role of the government in cultivating technological
innovations.
11. Title: The Regulatory Turn in Ip
Authors: Lemley, Mark A.
Abstract: An essay is presented on technology and the law in America and the
government's regulation of intellectual property (IP) as of January 2013, focusing on
market decisionmaking and the government's role in the development of technological
innovations. Other topics include the government's restriction of IP rights, the U.S.
Copyright Act of 1976, and the freedom to contract American legal doctrine. The
prosecution of Internet intermediaries such as the MegaUpload file sharing service are
examined.
12. Title: On the Majesty of the Law
Authors: Mansfield, Harvey C.
Abstract: An essay is presented on the the influence of God's majesty on the law, legal
realism, and the moral aspects of laws as of January 2013. U.S. President Barack
Obama's Patient Protection & Affordable Care Act is addressed, along with the American
laws on jaywalking and the police. Other topics include James Q. Wilson's book "Varieties
of Police Behavior," pragmatism, and the U.S. Constitutional Convention.
13. Title: Incorporation by Reference in an Open-Government Age
Authors: Bremer, Emily S.
Abstract: The article discusses the public policy implications of the incorporation by
reference regulatory practice in the U.S. as of January 2013, focusing on the codification
of regulations in the nation's Code of Federal Regulations, as well as a reported public
access problem in regards to the incorporation by reference practice. The regulations of
the Occupational Safety and Health Administration (OSHA) are addressed, along with the
U.S. Office of the Federal Register's approval process.
14. Title: "Pride Ignorance and Knavery": James Madison's Formative Experiences
With Religious Establishments
Authors: Olree, Andy G.
Abstract: The article discusses the Religion Clauses contained in the First Amendment to
the U.S. Constitution, the history of church and state in America, and former U.S.
President James Madison's formative experiences with religious establishments. The U.S.
Supreme Court Justices and their reliance on the historical record when rendering legal
decisions are addressed, along with the ratification of the Bill of Rights in 1791. The
authority of the Anglican Church in Virginia is also examined.
15. Title: Pre-"Originalism."
Authors: Toler, Lorianne Updike; Cecer, J. Carl; Willet, Don.
Abstract: The article discusses the Originalism interpretation theory in relation to the U.S.
Constitution and the judgment of the nation's Supreme Court (USSC) in the 2008 case
District of Columbia v. Heller which deals with the interpretation of the protections
provided by the Second Amendment to the U.S. Constitution. USSC Justice Antonin
Scalia's majority opinion in the Heller case is mentioned, along with constitutional
jurisprudence and the methodologies of Originalists.
16. Title: The Case of The Missing Argument: The Mysterious Disappearance of
International Law from Juvenile Sentencing in Miller V. Alabama, 132 S. Ct. 2455
(2012)
Authors: Levy, Jonathan.
Abstract: The article discusses an apparent lack of consideration of international laws in
U.S. juvenile sentencing practices as of January 2013, focusing on the U.S. Supreme
Court's ruling in the case Miller v. Alabama which deals with the application of a life
without parole sentence to a juvenile defendant. Cruel and unusual punishments under
the Eighth Amendment to the U.S. Constitution are addressed, along with state
sovereignty and a judge's consideration of international law as a source of law.
17. Title: Applying the Holder Standard to Speech That Provides Material Support to
Terrorism in United States V. Mehanna, No 09-10017-Gao (D. Mass. 2012)
Authors: Pochon, Christopher.
Abstract: The article discusses fee speech, the U.S. Supreme Court's ruling in the 2010
case Holder v. Humanitarian Law Project, and the application of the Holder case's speech
standard to the U.S. District Court for the District of Massachusetts case United States v.
Mehanna. Defendant Tarek Mehanna was convicted and sentenced to over 17 years in a
U.S. federal prison for allegedly providing material support to the al-Qaeda terrorist
organization.
18. Title: Resurrecting Free Exercise in Hosanna-Tabor Lutheran Church & School V.
Eeoc, 132 S. Ct. 694 (2012)
Authors: Williams, Elliott.
Abstract: The article discusses the free exercise of religion laws in the U.S., federal
nondiscrimination laws, and the U.S. Supreme Court's ruling in the 2012 case
Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity
Commission (EEOC). A ministerial exception contained in the First Amendment to the
nation's Constitution is addressed, along with American religious liberties under the
Constitution's Free Exercise Clause. The performance of secular duties is also
mentioned.