Harvard Law and Policy Review最新文献

{"title":"Antitrust, Political Economy, and the Nomination of Brett Kavanaugh","authors":"C. Sagers","doi":"10.2139/SSRN.3245279","DOIUrl":"https://doi.org/10.2139/SSRN.3245279","url":null,"abstract":"The essay considers the record of Supreme Court nominee Brett Kavanaugh within antitrust law and related policies. Deep substantive engagement with a nominee’s record by subject-area experts—as an adjunct to review by generalist Senators and interest groups—seems desirable and missing from much of our debate, as to Supreme Court nominees of any background or persuasion. In this particular case it is uncommonly necessary, because the nominee is himself uncommon. Review of the antitrust cases, along with cases on cognate competition issues and the closely related context of net neutrality, turns out to be both stark and quite telling. It discloses a more generalized political economy and a more generalized approach to judging. In particular, Judge Kavanaugh has demonstrated a strongly ideological agenda and a willingness to pursue it with substantial disregard for precedent and statute.","PeriodicalId":144581,"journal":{"name":"Harvard Law and Policy Review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121943708","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rural Access to Justice in the Golden State","authors":"Lisa R. Pruitt","doi":"10.2139/SSRN.3096179","DOIUrl":"https://doi.org/10.2139/SSRN.3096179","url":null,"abstract":"","PeriodicalId":144581,"journal":{"name":"Harvard Law and Policy Review","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132198363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Can Foreign Experience Inform U.S. Policy on Killings of and by Police","authors":"F. Zimring","doi":"10.2139/SSRN.2736622","DOIUrl":"https://doi.org/10.2139/SSRN.2736622","url":null,"abstract":"This article provides a brief survey of police killings in five nations and then does a more sustained analysis of killings by and of police in Germany and the United Kingdom. The rate of killings by police is vastly higher than in other developed nations. The vulnerability of police to fatal assaults is also substantially higher than in other developed nations.","PeriodicalId":144581,"journal":{"name":"Harvard Law and Policy Review","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134497855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Religion and Marriage Equality Statutes","authors":"N. Tebbe","doi":"10.31228/osf.io/f8kq7","DOIUrl":"https://doi.org/10.31228/osf.io/f8kq7","url":null,"abstract":"To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated willingness to enact marriage equality laws, have included provisions that may well retrench on civil rights principles in ways that are significant but underappreciated. Especially at a moment when marriage equality is moving into jurisdictions that are even more concerned with preserving religious freedom, arguments against existing accommodations should be made available.","PeriodicalId":144581,"journal":{"name":"Harvard Law and Policy Review","volume":"148 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127694091","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder","authors":"James U. Blacksher, Lani Guinier","doi":"10.2139/SSRN.2400098","DOIUrl":"https://doi.org/10.2139/SSRN.2400098","url":null,"abstract":"The \"equal sovereignty\" principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that black Americans, slave or free, were not members of the sovereign people and could never be \"citizens\" within the meaning of the Constitution. Otherwise, he said, blacks would be entitled to all the fundamental rights of citizenship guaranteed by the Privileges and Immunities Clause of Article IV, Section 2, including the right to vote, a result that would violate the equal sovereignty of the slave states. Black people, Chief Justice Taney wrote, could only enjoy those rights the sovereign people of each state chose to give them. The Dred Scott decision was one of the provocations that led to the Civil War and to the adoption of the Reconstruction amendments to the Constitution. Section 1 of the Fourteenth Amendment, ratified in 1868, overruled Dred Scott’s holding that freedmen and their descendants were not citizens, and it prohibited the states from abridging \"the privileges or immunities of citizens of the United States.\" Section 5 of the Fourteenth Amendment gave Congress the power to enforce the Privileges or Immunities Clause. But black voting rights were unpopular in the northern states, as well as in the South. Referendums on black suffrage had been defeated in many northern states in 1867, including Ohio, Kansas, and Minnesota. So the drafters of the Privileges or Immunities Clause had to concede, at least for the time being, that it did not guarantee the franchise. Instead, they placed in Section 2 of the Fourteenth Amendment a threat to reduce Congressional representation for states who denied the franchise to any of its \"male inhabitants.\" The Reconstruction Republicans forced the former Confederate states, still under military rule, to enfranchise blacks as a condition for being readmitted to Congress. Then in 1870 they adopted the Fifteenth Amendment, which prohibited denying or abridging the right to vote on account of race. The door was left open, however, for a future Congress to give the Privileges or Immunities Clause its plain meaning by enforcing the right to vote of every American citizen.The Supreme Court moved immediately to close the door to such future Congressional action by judicially neutering the Privileges or Immunities Clause. The 1873 Slaughter-House Cases reaffirmed Dred Scott’s holding that power to define the fundamental rights of citizenship belonged to the states, not to the federal government. A year later, in Minor v. Happersett, the Court rejected the claim of women suffragists that the Fourteenth Amendment Privileges or Immunities Clause guaranteed them the franchise. The Constitution does not give anyone the right to vote, the Court said.The former slave states wasted little time taking the Court’s cue. B","PeriodicalId":144581,"journal":{"name":"Harvard Law and Policy Review","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124956628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Considering Class: College Access and Diversity","authors":"M. Gaertner, M. Hart","doi":"10.2139/SSRN.2137126","DOIUrl":"https://doi.org/10.2139/SSRN.2137126","url":null,"abstract":"Each time that the continued legality of race-conscious affirmative action is threatened, colleges and universities must confront the possibility of dramatically changing their admissions policies. Fisher v. University of Texas, which the Supreme Court will hear this year, presents just such a moment. In previous years when affirmative action has been outlawed by ballot initiative in specific states or when the Court has seemed poised to reject it entirely, there have been calls for replacing race-conscious admissions with class-based affirmative action. Supporters of race-conscious affirmative action have typically criticized the class-based alternative as ineffective at maintaining racial diversity. This article presents the results of a study conducted at the University of Colorado in 2008 and 2010 that challenges that common assertion. We present a class-based affirmative action policy that led to increased socioeconomic diversity as well as slightly increased racial diversity in two entering freshmen classes. This study, the first done at a moderately selective university, shows how class-based affirmative action can be an effective tool for admitting a class of students that is diverse both socioeconomically and racially. Even if the Supreme Court upholds the constitutionality of race-conscious college admissions, class-based policies are attractive as a supplement to race-conscious policies. The challenges associated with low socioeconomic status are different from those associated with minority status, and there are good reasons to seek equal opportunity along both lines.","PeriodicalId":144581,"journal":{"name":"Harvard Law and Policy Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129170142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Heller High Water? The Future of Originalism","authors":"J. Greene","doi":"10.7916/D85B01K2","DOIUrl":"https://doi.org/10.7916/D85B01K2","url":null,"abstract":"This Article considers the future of originalism in the wake of the Supreme Court's 2008 decision in District of Columbia v. Heller. It argues that, although Heller is in many ways a triumph for proponents of originalism, it might also represent a high water mark for the doctrine and for the political movement that supports it. There is little reason to believe that the cases of relative first impression that originalism feeds on will be readily available in the near future, and the politics of the Court and of the country do not augur the appointment of additional originalist judges. These observations recommend that progressive advocates focus on availing themselves of the nation's ethical shift to themes of change and mutual responsibility, so as to emphasize the Constitution's dynamic future rather than its static past.","PeriodicalId":144581,"journal":{"name":"Harvard Law and Policy Review","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124874632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Congressional Government Rebooted: Randomized Committee Assignments & Legislative Capacity","authors":"Brian D. Feinstein","doi":"10.2139/SSRN.2068734","DOIUrl":"https://doi.org/10.2139/SSRN.2068734","url":null,"abstract":"Congress’s stature and relative role in governance are in the midst of a long-term decline. To mitigate this trend, this article proposes a novel change to the branch’s institutional design: replacing the current committee assignment system with the random assignment of members to committees. I argue that this reform would greatly enhance Congress’s internal capacity, altering the roles that party organizations, expert or deliberative committees, interest groups, and political minorities play in the policymaking process. Random committee assignment could also impact Congress-Court dynamics, encouraging greater use of legislative history in statutory interpretation and promoting a more deferential judicial posture in assessing the constitutionality of statutes. Finally, random assignment could facilitate greater congressional involvement in administration, particularly concerning committee oversight of executive agencies and use of the post-Chadha legislative veto.","PeriodicalId":144581,"journal":{"name":"Harvard Law and Policy Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128780303","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Back to the Future: Introducing Constructive Feminism for the Twenty-First Century: A New Paradigm for the Family and Medical Leave Act","authors":"Arianne Renan Barzilay","doi":"10.2139/ssrn.3009942","DOIUrl":"https://doi.org/10.2139/ssrn.3009942","url":null,"abstract":"At least ninety percent (90%) of American parents, mothers and fathers, say they are experiencing an acute shortage of time spent with family and an intense work-family conflict. This article provides a history and a theory that should inform our conceptualization of work-family regulation. It points to the neglected history of working-class social feminism. It shows how working-class social feminists at the beginning of the twentieth century advocated for “constructive feminism” — government support, by way of labor regulation, of what this article terms “multidimensionalism” — a life enriched by meaningful dimensions of work, family, civic participation, and culture. The Article extends this history to a theory of work-family balance for today’s world, which centers on multidimensionalism by way of regulation. It claims this theory should provide a framework for designing and evaluating public policy, and should inform measures to ameliorate the work-family conflict, such as paid leave, “daddy quotas,” and quality childcare. The Article concludes that to adhere to constructive feminism’s multidimensional paradigm, Congress should further enhance the Family and Medical Leave Act (FMLA).","PeriodicalId":144581,"journal":{"name":"Harvard Law and Policy Review","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133252733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}