Harvard Journal of Law and Public Policy最新文献

{"title":"The Presumption of Constitutionality","authors":"E. Whelan","doi":"10.2307/1115339","DOIUrl":"https://doi.org/10.2307/1115339","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"58 1","pages":"17"},"PeriodicalIF":0.6,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1115339","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68233313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Immigration, Freedom, and the Constitution","authors":"I. Somin","doi":"10.2139/SSRN.2968440","DOIUrl":"https://doi.org/10.2139/SSRN.2968440","url":null,"abstract":"In recent years, many conservatives have come to favor a highly restrictionist approach to immigration policy. But that position is in conflict with their own professed commitment to principles such as free markets, liberty, colorblindness, and enforcing constitutional limits on the power of the federal government. These values ultimately all support a strong presumption in favor of free migration. ********** I. IMMIGRATION AND FREEDOM Let us focus on free markets first. Immigration restrictions are among the the biggest government interventions in the economy. They prevent millions of people from taking jobs, renting homes, and pursuing a wide range of opportunities that they could otherwise have. Economists estimate that if we had free migration throughout the world, we could double world GNP. (1) That is not a gaffe or a mispring; it is a real estimate. Perhaps doubling GNP is overly optimistic. Still, increasing it by, say, 50 percent is a greater effect than virtually any other realistically feasible change in economic policy. (2) The reason why immigration restrictions have such an enormous effect is pretty simple. People become much more productive when they move from countries where they have little or no opportunity to use their talents, to those where they can be more productive. Just crossing from Mexico to the United States makes a person three or four more times more productive than they otherwise would be, even without improving their skills in any way. (3) And the opportunities to improve skills are, for most immigrants, far greater in the U.S. than where they initially came from. There is an enormous amount of wealth that can be created just by cutting back on our immigration restrictions. But it would be a mistake to say that the issue here is primarily economic. It is also, and even more fundamentally, about freedom. When people come to the United States from poor and oppressive societies, they increase their freedom in many ways. Think of refugees fleeing religious or ethnic persecution, women escaping patriarchal societies, or people fleeing massacres such as those perpetrated by ISIS. The ancestors of most modern Americans escaped such oppression during the period when we wisely did not have the kinds of immigration restrictions that we do today. If we had today's immigration policies back then, the ancestors of most of the current US population would never have been allowed to come. Immigration restrictions undermine the freedom of native-born Americans as well as immigrants. Because of our immigration laws, millions of native-born Americans cannot hire the workers they want, associate with the businesses that they choose, nor benefit from the entrepreneurship of immigrants; on average, they tend to be more entrepreneurial than native-born citizens. (4) II. IMMIGRATION AND DISCRIMINATION Current immigration policy is also inimical to the principle of color-blindness in government. In December 2014 President Obama's Departmen","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"40 1","pages":"1"},"PeriodicalIF":0.6,"publicationDate":"2017-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46878731","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Business Transactions and President Trump's 'Emoluments' Problem","authors":"S. Tillman","doi":"10.2139/SSRN.2937186","DOIUrl":"https://doi.org/10.2139/SSRN.2937186","url":null,"abstract":"Recently, some have argued (1) that the term \"emoluments,\" as used in the Constitution's Foreign Emoluments Clause (2) and Presidential Emoluments Clause, (3) reaches any pecuniary advantage, benefit, or profit arising in connection with business transactions for value. (4) There is good reason to doubt the correctness of this position. Why? The Presidential Emoluments Clause states: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. (5) If the emoluments-are-any-pecuniary-advantage position were correct, if \"emoluments\" as used in the Constitution extended to any pecuniary advantage, then presidents are and would have been precluded from doing business with the United States government. However, George Washington, who had presided over the Philadelphia Convention, (6) did business with the Federal Government on more than one occasion while he was president. He purchased several lots of land in the new federal capital at public auction. One such set of purchases took place on or about September 18, 1793. (7) The public auction was run by three commissioners: David Stuart, Daniel Carroll, and Thomas Johnson. Who were they? David Stuart was a member of the Virginia convention that ratified the Federal Constitution. Stuart was also a federal elector in the first federal election for President and Vice President of the United States. (8) Daniel Carroll was a member of the Federal Convention that drafted the Constitution and later a member of the First Congress. (9) Thomas Johnson was the first Governor of Maryland following independence, a member of the Maryland convention that ratified the Federal Constitution, and afterwards he served as a Justice of the Supreme Court of the United States. (10) So among the four participants (Washington and the three commissioners) were: three members of the Continental Congress; (11) three members of pre-independence colonial legislatures or post-independence state legislatures; (12) two members of state conventions that ratified the Constitution; two members of the Federal Convention (including the Convention's president); a member of the First Congress; a Justice of the Supreme Court of the United States; a governor; a federal elector for President and Vice President; and, our first President. Collectively these four are, undoubtedly, an accomplished group. Are we really to believe that not only did all four officials willingly, openly, and notoriously participate in a conspiracy to aid and abet the President in violating the Constitution's Presidential Emoluments Clause, but that they also left--for themselves and their posterity--a complete and signed documentary trail of their wrongdoing? (13) The emoluments-are-any-pecuniary-advantage position amounts to: (1) President Washin","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"40 1","pages":"759"},"PeriodicalIF":0.6,"publicationDate":"2017-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48351871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Free Expression on Campus: Mitigating the Costs of Contentious Speakers","authors":"Suzanne B. Goldberg","doi":"10.7916/D8Z33G7T","DOIUrl":"https://doi.org/10.7916/D8Z33G7T","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"41 1","pages":"163-186"},"PeriodicalIF":0.6,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Sexual Integrity of Religious Schools and Tax Exemption","authors":"J. R. Buckles","doi":"10.2139/SSRN.2814711","DOIUrl":"https://doi.org/10.2139/SSRN.2814711","url":null,"abstract":"Many private universities and other schools adhere to religiously grounded codes of conduct that embrace heterosexual monogamy as the sole moral context for sexual relationships. The federal income tax exemption of these schools has been questioned following the recent Supreme Court opinion of Obergefell v. Hodges. In Obergefell, the Supreme Court held that the right to marry is a fundamental constitutional right that same-sex couples may exercise. The relevance of this decision to the federal tax status of private religious schools arises from another Supreme Court decision, Bob Jones University v. United States. The Court in Bob Jones held that two schools with racially discriminatory policies as to students were not entitled to exemption from federal income tax because the policies violate established public policy. The issue now is whether the sexual conduct policies of private religious schools violate the established public policy of the United States following Obergefell. After reviewing Bob Jones and surveying the application of the public policy doctrine by the IRS and the courts, this article argues that, regardless of the factual context of a controversy in which the IRS seeks to invoke Bob Jones to deny or revoke federal income tax exemption, the public policy doctrine should be narrowly construed. Applying a suggested framework for limiting the public policy doctrine coherently, this Article argues that schools maintaining sexual conduct policies that prohibit sexual activity inconsistent with their religiously informed, traditional view of marriage remain tax-exempt after Obergefell. Apart from the proposed framework, this Article further explains why Obergefell’s analytical approach, language and tone are inconsistent with applying Bob Jones to the disadvantage of religious schools that maintain sexual conduct policies.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"40 1","pages":"255"},"PeriodicalIF":0.6,"publicationDate":"2016-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68346083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Of Brutal Murder and Transcendental Sovereignty: The Meaning of Vested Private Rights","authors":"A. MacLeod","doi":"10.2139/SSRN.2810162","DOIUrl":"https://doi.org/10.2139/SSRN.2810162","url":null,"abstract":"The idea of vested private rights divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligation upon private persons and government officials. On the other side of the divide, scholars of law and jurisprudence have generally proceeded, since at least the rise of English positivism in the nineteenth century and the American legal realist movement in the early twentieth, as if the concept of vested right has little real meaning. This article attempts to explain the doctrine’s continued appeal and to discern some coherence in it while also accounting for the causes of skepticism.The approach is made by way of a central case study: the right of emancipation on free English soil. The study suggests a coherent, focal meaning of the vested private right as a norm that imposes a conclusive duty upon a duty-bearer or class of duty-bearers, and which constrains public officials’ powers to recognize, change, or adjudicate private rights and duties. This focal meaning suggests that central instances of vested rights are quite rare. This accounts for skepticism of the concept. Yet it also suggests that less-central instances of vested rights are rather common. This accounts for the concept’s practical appeal and enables one to distinguish weak or peripheral senses of vested private rights, which are not as conceptually interesting but are nevertheless significant for the practice of law, from strong or central senses, which are rare in practice but theoretically interesting.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"41 1","pages":"253"},"PeriodicalIF":0.6,"publicationDate":"2016-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68342956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State","authors":"R. Cass","doi":"10.2139/ssrn.2741208","DOIUrl":"https://doi.org/10.2139/ssrn.2741208","url":null,"abstract":"The delegation doctrine — holding that legislative authority cannot be ceded to executive or judicial officers — long has been accepted as a common-sense statement of the proposition that the constitutional design of separated powers for more than a century. Yet despite its broad acceptance as a doctrine that is consistent with the structure and text of the Constitution, it effectively is treated as simply a notional, not a realistic, constraint. Recent opinions from Justices Samuel Alito and Clarence Thomas, however, pointedly expressed concern about legislated grants of expansive authority to make rules regulating private conduct. These opinions provide an occasion for reexamining how much the Constitution’s division of and limitations on power traditionally assumed to be “legislative” can and should be judicially enforceable.If the constitutional structure is to be preserved, an enforceable delegation doctrine is needed, but the current doctrine — which turns on the scope of a legislative assignment of authority — will not work. Focusing instead first and foremost on the nature of the authority granted and its connection to the constitutional competence of the officials or bodies authorized to exercise discretionary power can provide a path to reinvigorating separation of powers protections.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"40 1","pages":"147"},"PeriodicalIF":0.6,"publicationDate":"2016-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2741208","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68282283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Public Choice Theory and Occupational Licensing","authors":"Paul J. Larkin, Jr.","doi":"10.2139/ssrn.2540084","DOIUrl":"https://doi.org/10.2139/ssrn.2540084","url":null,"abstract":"Occupational licensing is now one of the most widespread and fastest growing forms of labor market regulation. Occupational licensing requirement generally are defended on the ground that they offset the information disparity between service providers and consumers by guaranteeing a minimal level of qualifications. Over time, however, a large number of federal government officials, scholars, and commentators have criticized the widespread use of occupational licensing requirements. They have argued that licensing requirements benefit licensees, not consumers, by helping to create a cartel that can avoid competition and raise prices. Public Choice Theory is a useful tool for analyzing licensing requirements because it applies microeconomic and game theory to the political process. Doing so gives rise to the remarkable irony that the justification for regulation has come full circle. Originally, the rationale was that government intervention would remedy economic market failures in furtherance of the public interest. Today, we see that government intervention causes political market failures in furtherance of private interests. Government has become the problem, not the solution. That conclusion justifies a re-examination of the constitutionality of many occupational licensing schemes. Then Supreme Court has been unwilling to re-examine the constitutionality of these programs since the new Deal, but there are two grounds that might prove useful. One is the Equal Protection Clause. It requires a rational basis for treating similarly situated people differently. Here, the argument would be that the basis for requiring licenses is due to the operation of political bribery and extortion, which is not a legitimate state interest. The second argument would be that many license schemes vest lawmaking authority in private parties, which the Private Delegation Doctrine forbids.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2015-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2540084","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68197388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bulk Metadata Collection: Statutory and Constitutional Considerations","authors":"L. Donohue","doi":"10.2139/SSRN.2344774","DOIUrl":"https://doi.org/10.2139/SSRN.2344774","url":null,"abstract":"The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces mecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of Smith v. Maryland, the privacy invasions resulting from the universal use of pen registers and trap and trace devices, and the advent of new technologies. Over the past decade, tension has emerged between the view that new technologies should be considered from the perspective of trespass doctrine and the view that Katz’s reasonable expectation of privacy test should apply. Cases involving, for instance, GPS chips, thermal scanners, and highly-trained dogs divide along these lines. Regardless of which approach one adopts, however, similar results mark the application of these doctrines. Under trespass doctrine, the primary order for the telephony metadata program amounts to a general warrant — the elimination of which was the aim of the Fourth Amendment. Under Katz, in turn, citizens do not expect that their telephony metadata will be collected and analyzed. Most Americans do not even realize what can be learned from such data, making invalid any claim that they reasonably expect the government to have access to such information. FISA reform is necessary to enable the government to take advantage of new technologies, to empower the intelligence agencies to respond to national security threats, and to bring surveillance operations within the bounds of statutory and constitutional law. Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs,” and requiring the government to demonstrate past effectiveness prior to obtaining renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"37 1","pages":"757"},"PeriodicalIF":0.6,"publicationDate":"2014-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68125522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges","authors":"A. Volokh","doi":"10.2139/SSRN.2335659","DOIUrl":"https://doi.org/10.2139/SSRN.2335659","url":null,"abstract":"In recent years, state and federal courts have been ruling against private regulatory organizations on a number of theories. This Article explores this new private-regulation skepticism and the theories that underpin it.This Article focuses on three main sources of law: the Due Process Clause, non-delegation doctrine, and antitrust law. To illustrate the doctrines, it follows five examples from recent cases and recent news of regulation by Amtrak, the North Carolina Board of Dental Examiners, the Mississippi Board of Pharmacy, the Texas Boll Weevil Eradication Foundation, and landowners in Texas water quality protection zones.The Due Process Clause is a potential limit on the private exercise of regulatory power, especially if the regulators and the regulated parties compete with each other. Federal non-delegation doctrine, by contrast, is unlikely to be much help in these challenges, though some states, like Texas, have vibrant non-delegation doctrines that not only are stricter than the federal one but also strongly distinguish between public and private delegates. Some courts don’t clearly distinguish between non-delegation and due process. I argue that they should, as the two doctrines serve very different purposes.Finally, federal antitrust law is available to guard against the anticompetitive dangers of “industry regulating itself.” Excessive conflicts of interest decrease the chance that a court will find state action immunity from antitrust law, and increase the chance that a court will find a substantive antitrust violation because of structural anticompetitive factors. Additionally, regulators that are sufficiently independent from state government are less likely to be insulated from liability by sovereign immunity. This new regulation skepticism thus provides several useful tools to challenge private regulation.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"54 1","pages":"931"},"PeriodicalIF":0.6,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2335659","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68114751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}