Harvard Law Review: Volume 125, Number 2 - December 2011

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Whitman Walker Clinic, 22 A. Courts have traditionally been reluctant to compensate victims of "pure" emotional harms accompanied by neither predicate nor consequent physical injury. Beginning in the late nineteenth century, however, many jurisdictions gradually expanded tort liability for negligent infliction of emotional distress NIED , first through the "impact" rule, which allowed recovery when even trivial physical contact was made, 1 and later through the "zone-of-danger" rule, which allowed recovery absent contact when the plaintiff suffered a near miss.

Whitman Walker Clinic, 3 the D. Court of Appeals further relaxed restrictions on NIED recovery, allowing a claim by a patient who suffered severe distress, but no physical injury, as a result of being misdiagnosed as HIV positive. With Hedgepeth, D. The result is added complexity in an area of law already marked by administrability concerns and doctrinal fractures.

Mary Fanning subsequently reported this erroneous result to Hedgepeth. For the next five years, Hedgepeth believed he was HIV positive. He lost his job, began using illegal drugs "heav[ily]," developed an eating disorder, and started having sex with a woman he knew was HIV positive. The authors also question the representativeness of the data that Starr and Rehavi use in their alternative analyses and the assumptions they make about how the federal criminal justice system operates. Windsor , which technically rested on equal protection grounds, through the lens of the fundamental right to marry.

Scholars of popular constitutionalism have persuasively argued that an array of nonjudicial actors—social movements, the federal political branches, state and local political entities—play an important role in shaping constitutional meaning. To date, the accounts of such scholars have largely focused on the ways that constitutional doctrine at the Supreme Court level can be infiltrated and shaped by such popular constitutional influences.

Four perspectives on the future of voting rights law in advance of Shelby County v. The plaintiffs in Shelby County v. In this Essay, written in advance of the decision, Professor Joseph Fishkin situates this claim in a larger context. Americans have been fighting since the Civil War and Reconstruction about the structural implications of the events of for the sovereignty, dignity, and equality of the states—especially the Southern states.

Many elements of the simulacrum have at least the ring of truth. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device.

As voting rights activists plot a post-Shelby County contingency strategy, they should both account for institutional intermediaries and think about the types of changes that could enhance the ability of these groups to better protect voting rights. The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address.

In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it. Professors Ruth Mason and Michael Knoll defend their interpretation of the tax-discrimination jurisprudence of the Court of Justice of the European Union, arguing that the nature of their project has been misunderstood by Professors Michael Graetz and Alvin Warren. This Essay examines three experiments that tracked eye fixations as participants reviewed home-loan disclosure forms.

The experiments revealed confirmation biases in which participants read to confirm what they were told e.

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Improved forms reduced confirmation biases, but that improvement was undermined when the experimenter engaged participants in distracting conversation. These results demonstrate that improving disclosure forms cannot sufficiently protect consumers. They also suggest that mortgage counseling is necessary for many borrowers. Ignoring that information may lead to the misalignment of liability with wrongdoing. To avoid such distortion, Ariel Porat and Eric Posner have argued in The Yale Law Journal that courts should adjudicate multiple-claim lawsuits in the aggregate.

They do not specify the method to implement this novel idea, however, leaving it susceptible to several complications that might undermine its merits. That concern with the method of invention poses several normative, statutory, and administrative difficulties. Prometheus left considerable uncertainty as to the boundaries of patentable subject matter for molecular diagnostic inventions.

This Essay argues that those who wrote disenfranchisement into the U. Constitution did so from a context far removed from the views to which Americans adhere today when they talk about voting and political equality. Despite the fact that some Republicans made principled arguments contrasting criminal disenfranchisement with African-American enfranchisement, citizens and legislators who propose to abolish or restrict disenfranchisement neither dishonor nor render incoherent the Reconstruction Amendments.

The Supreme Court recently held, in Miller v. Alabama , that mandatory life without parole for juveniles violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. Commentators have asserted that the Roberts Court is more likely than its predecessors to use summary disposition to resolve cases, but this Essay presents the first systematic look at its use of that procedure.

The Essay finds that—contrary to general understanding—the Roberts Court has not used summary disposition more than its predecessors did. Rather, it has used the procedure in different and potentially dangerous ways. In Dissolving Cities , Professor Michelle Wilde Anderson suggests that municipal dissolution could enable counties to serve regionalist goals. This Essay argues that, on balance, municipal dissolution will not trigger the emergence of counties as agents of regional reform.

Modern metropolitan regions span city, county, and state borders. As the scale of the region expands, state and local governments, including counties, will increasingly lack the territorial jurisdiction and regulatory capacity to respond to complex metropolitan problems. The Essay concludes by considering the role that the federal government can play, and has historically played, in facilitating regional collaboration at the appropriate scale.

This Essay disputes the legal claims set forth in a recent lawsuit that seeks to invalidate a policy of the Department of Homeland Security. The policy gives protection against deportation to unauthorized immigrants who came to the country as children, and the Department defends it as an exercise of prosecutorial discretion. The plaintiffs claim that no such discretion exists, because the Immigration and Nationality Act, as amended in , requires that virtually all aliens who entered without inspection be detained and placed in removal proceedings whenever encountered by immigration agents.

As I was walking around the tonier precincts of Austin, Texas, in the summer of , I noticed that some things seemed out of place. The hot, humid weather was normal, and the recent rainstorms belied the existence of one of the most severe droughts on record. Instead, there was a new source of water for those who could afford it, sitting right beneath their feet. In addition to the yard crews attending to the shrubs and St. Augustine grass, there were gangs of roughnecks in work clothes setting up drilling rigs on those manicured urban lawns.

The drought, no doubt, has created a market for privately controlled water. In the long-awaited case of Edwards Aquifer Authority v. Yonaty v. Mincolla 1 may have been the most anachronistic judicial ruling of In Yonaty , a New York trial court held that false imputations of homosexuality still constituted per se defamation 2 under New York law. All active judges are present to answer questions from the bar. All they were doing when they dismissed employment discrimination cases was following the law—nothing more, nothing less.

I disagreed. Federal courts, I believed, were hostile to discrimination cases. Although the judges may have thought they were entirely unbiased, the outcomes of those cases told a different story. Changes in substantive discrimination law since the passage of the Civil Rights Act of 1 were tantamount to a virtual repeal. This was so not because of Congress ; it was because of judges. A little-known fact about the biggest Supreme Court case of the Term is that it is botched beyond repair. This Essay describes a series of grave defects in Fisher v. University of Texas at Austin , the potentially momentous affirmative-action case, that should prevent the Supreme Court from reaching the merits.

She asked the district court to command the university to admit her. She also sought an injunction preventing the university from using race in future admissions decisions and a declaration that doing so would violate federal law. The district court granted summary judgment to the university. Fisher had enrolled elsewhere and had no intention of reapplying to the university.

As a result, the Fifth Circuit said, she lacked standing to make prospective requests. This year marks the seventy-fifth anniversary of West Coast Hotel Co. Parrish , 1 which for many years has been part of one of the central narratives of twentieth-century American constitutional history. This Essay seeks to show that the conventional narrative is misleading and distorts the significance of West Coast Hotel.

How should we deliver legal services to low-income clients in need? How should we allocate scarce legal resources among deserving clients?

Elizabeth Warren

How can we increase access to justice more generally? As legal services lawyers and clinical law professors who have spent the bulk of our careers in neighborhood-based antipoverty programs, we grapple constantly with these individual, institutional, and systemic challenges. Legal needs in low-income communities far outstrip our ability to meet them, so we develop gatekeeping mechanisms to manage client demand and expectations. Among eligible clients, we face seemingly intractable choices about whom to serve and how much to serve them.

While we struggle with individual delivery and programmatic allocation decisions, we also strive to expand access to justice systemically. Frye and Lafler v.

Steven M. Shavell

Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v.


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Frye 1 and Lafler v. Cooper , 2 the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar. The Supreme Court in Missouri v. Four Justices protested that the Lafler decision violated the federal habeas statute.

At the least, the decision expanded habeas review in unexpected ways. In two five-to-four decisions rendered on March 21, — Missouri v. Cooper —the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to the plea-bargaining process.

Viewed in a broader perspective, Frye and Lafler are but the latest reactions to the ever-more-punitive criminal penalties imposed by state and federal legislatures over the past half century. Santa Clara County , the Court unanimously dismissed a suit seeking to enforce another statute that similarly lacked a private cause of action. At the front lines, they are tasked with interpreting statutes, enacting regulations to implement federal programs, and enforcing federal directives.

During the course of adjudication or rulemaking, federal agencies are sometimes called upon to determine whether state law conflicts with federal law. That conflict inquiry is at the heart of preemption disputes before state and federal courts. Private parties wield preemption—typically as a defense—to stave off the effects of a state law allegedly trumped by federal law under the Supremacy Clause. Courts are then called upon to decide the extent to which state law is inconsistent with federal law.

Judicial review of agency action under the Administrative Procedure Act APA and preemption challenges thus provide parallel proceedings to resolve disputes over whether state and federal law are simpatico or at war. Douglas v. Who is, and who should be, the ultimate arbiter of the existence of federal-state conflicts and how to resolve them—agencies or courts? Alfred H. Mayer Co.

Increasing numbers of circuit judges are writing dissents from, and concurrences in, orders denying rehearing en banc — colloquially known as dissentals and concurrals. Not everyone is happy about this practice, and some judges have lamented their proliferation. This Essay argues that the current ethical rules governing U. The Essay broadly responds to and rejects the critique of the Proposals propounded by Larry Fox. The attempts by some in the Bar to compromise client loyalty on the altar of law firm profits per partner is both unceasing and depressing.

The proposals from many law firm General Counsels to change the Model Rules of Professional Conduct are particularly unflattering to the proponents and undermine this most important fiduciary duty. This Essay describes these calls for change and explains why they should be rejected. In a recent article appearing in The Yale Law Journal , Ariel Porat argues that the tort of negligence is beset by a range of misalignments that threaten to induce inefficient behavior.

In this Response, I argue that Porat is working with an unhelpful notion of misalignment; that tort law has its own internal conception of alignment; and that once we understand the nature of alignment in torts, none of his examples are problematic. If anything, his arguments reveal problems in his understanding of the tort of negligence rather than problems in the tort itself or in its practical implementation.

His response is thus largely unresponsive to our actual arguments. Code, though they are coy about this violates those norms. These claims are obscure even on their own terms. Nor is it clear how an effort by Congress to guarantee that all Americans have adequate health care could violate a fiduciary duty of impartiality. Their logic implies the greatest revolution in federal power in American history. And this would decidedly be a revolution from above. This would be an insane way to run a civilization. It is bad news for everybody. The authors illustrate this point with an extensive discussion of the potential for common law nuisance cases to direct congressional attention to the issue of climate change.

Their general point is well taken, but they focus too heavily on the common law rather than the more important judicial role in public law, and they mention only in passing the role of states as independent policy centers. Furthermore, besides nudging Congress or the executive branch, public law litigation and state legislative activity can also help fill the gaps created by congressional or presidential policy defaults.

They use federal climate nuisance litigation as an example of how such prods and pleas can and should operate. In this Age of Dysfunction, when one of the major American political parties seeks to paralyze legislative action, I suggest three areas where judicial prodding might be appropriate: 1 where legislation is blocked by a filibuster; 2 where opposition to legislation rejects science; and 3 where the legislative process produces results that discriminate against diffuse and invisible and thus powerless groups.

For Joshua Kleinfeld's response, see here. This Essay argues that we have been undergoing a profound sociocultural transformation over the last several centuries, which relates to the emergence of international law. This transformation is every bit as fundamental as those we once went through when transitioning from hunter-gatherer forms of life which did not yet have legal systems or engage a distinctive sense of legal obligation to more sedentary forms of agricultural life with larger population densities, incipient domestic legal institutions, and—ultimately—an emergent distinction between morality and law.

This Essay argues that outcasting provides the evolutionary stability conditions for a distinctive and emergent sense of international legal obligation in us. This shared sense of obligation is one of the basic preconditions for a genuine de facto system of international law—a fact that has important normative implications for how to evaluate international law. In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act ACA during its October Term.

In order for the TAIA not to bar refund suits, the TAIA must be read to bar suits with the immediate purpose of restraining tax assessment or collection.

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The present challenges do not have such an immediate purpose because the very authority to assess or collect will not exist until long after the litigation is concluded. Among other virtues, this resolution of the TAIA question does not predetermine whether the tax power justifies the minimum coverage provision. For Professor Arti Rai's response, see here.

For Lisa Ouellette's response, see here. In Patent Inflation , I argued that the asymmetry in Federal Circuit review of Patent and Trademark Office PTO decisions would lead over time to inflation in the boundaries defining what inventions are patentable. In short essays, Professor Arti Rai and Lisa Ouellette have offered valuable commentary, including both qualitative Rai and quantitative Ouellette evidence bearing on the question of inflation.

In this brief response, I explain how their evidence is consistent with—indeed, bolsters—the theory presented in Patent Inflation. But those cases have exerted outsized influence on the development of the law, particularly across a number of the most significant patent doctrines. This is just as Patent Inflation would predict. For Professor Masur's sur-reply, see here. This Essay examines every Federal Circuit patentability ruling over five different years and shows that reversals of PTO rejections are few in number and doctrinally insignificant.

Masur also underestimates the role of the Supreme Court in redrawing patentability boundaries. Although the U. Patent and Trademark Office PTO is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction.

The PTO is influenced not only by the Federal Circuit and other inflationary forces, but also by executive branch actors, industry players, and workload concerns that push in a deflationary direction. In Prods and Pleas , Benjamin Ewing and Douglas Kysar claim that the American legal system needs to adopt novel solutions to deal with the question of global warming.

In this Essay, I start from the premise that some form of legal response to global warming is appropriate, but then conclude that the traditional allocation of responsibility between private rights of action for large concentrated harms and direct government administrative action for diffuse harms remains the proper approach. In light of the worldwide nature of the problem, the only domestic responses to this issue should be through coordinated action at the federal level.

Connecticut and conclude further that the comprehensive powers lodged in the Environmental Protection Agency should not only block private rights of action under federal law, but under state law as well. This Essay asks two philosophical questions about that claim. And what is the place of enforcement in our concept of law? Nor is enforcement sufficient to make a norm a law: the skepticism toward international law is not based on enforcement alone.


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  6. This view is fundamentally wrong. The Necessary and Proper Clause is based on eighteenth-century agency law, including the fundamental agency doctrine of principals and incidents. The power to compel private persons to engage in commercial transactions with other private persons is not an incidental power. In addition, eighteenth-century public law carried administrative law principles—including the fiduciary norms at the heart of agency law—into delegations of power to political actors.

    One of the most basic of these fiduciary norms is the obligation to treat multiple principals equally. That equal treatment requirement is violated by the individual mandate, which compels transactions with a favored oligopoly of insurance companies. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct.

    John Thompson, the plaintiff in Connick , spent fourteen years on death row because prosecutors concealed exculpatory blood evidence from his defense attorneys. Our study demonstrates that professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct. Accordingly, in addition to noting the deficiencies of professional responsibility measures, we offer a series of recommendations for enhancing their effectiveness. Federal and state law enforcement officials throughout the nation are currently using Global Positioning System GPS technology for automated, prolonged surveillance without obtaining warrants.

    Most recently, a split has emerged between the Ninth and D. Circuit Courts of Appeal on the issue. Knotts —which approved the limited use of beeper technology without a warrant— to uphold warrantless use of GPS surveillance technology. However, in United States v. Maynard , the D. Circuit held that warrants are required for law enforcement use of GPS tracking devices. In distinguishing Knotts , the D. Circuit pointed to the vast differences between the relatively primitive beeper technology used almost thirty years ago and the unprecedented power of GPS surveillance technology used today.

    The Seventh Circuit Court of Appeals and various state courts are similarly divided. In light of this confusion, the Supreme Court has recently agreed to review the issue, granting certiorari from the decision of the D. Circuit in Maynard and leaving the Pineda-Moreno petition in a holding pattern. On November 8, the Supreme Court will hold oral arguments in the case, which was docketed under the new name United States v.

    Lee, Dec. Bartlett Giamatti, Aug. They make sure everybody plays by the rules. In a essay, I traced the history of the judge-umpire analogy from to the present and found that the judge-umpire analogy was originally intended to apply to trial court judges and was advanced as a model expressly to be rejected. In place of the judge-umpire analogy, I proposed that a Supreme Court Justice is more appropriately analogized to the Commissioner of Baseball. This Essay reinforces the Justice-Commissioner analogy in two ways.

    First, it traces the Justice-Commissioner analogy back over a century, finding that the Commissioner of Baseball has been compared to the Supreme Court since the Office of the Commissioner was created. This is no coincidence: both Justices and Commissioners play the same structural roles in their respective systems.

    Neither a Justice nor a Commissioner is a fact-finder searching for a clear right answer to a specific question—for example, was the ball in the strike zone? In short, being a Justice and a Commissioner is hard: there are not always clear right and wrong answers. Second, this Essay illustrates the similarity of Justices and Commissioners through nine paired case studies where Justices and Commissioners have, in their respective capacities, 1 provided guidance, 2 refrained from error correction, 3 undertaken rulemaking, 4 exercised countermajoritarian powers, 5 provided explanations for their decisions, 6 protected the fundamental values of their respective institutions, 7 employed special masters for fact-specific inquiries, 8 decided on statutes of limitations, and 9 exercised finality.

    This Essay concludes that Chief Justice Roberts had the right sport but the wrong position: Justices are not umpires; they are Commissioners. This Essay is part of the second symposium in that series.

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    In American Electric Power Co. Connecticut AEP , the Supreme Court explicitly left ajar the door to litigation under state as opposed to federal common law for greenhouse gas GHG emissions. In other words, the plaintiffs finally are able to litigate the merits. What would that litigation look like?

    Because I have spent thirty years as a practicing environmental litigator sometimes acting for plaintiffs, sometimes for defendants prior to entering academia, my head swims with the challenges such a case would pose. Whether and how to apply the political question doctrine were among the issues for which the Supreme Court granted certiorari in American Electric Power Co. Connecticut AEP. This doctrine holds that federal courts should not resolve certain kinds of claims better left to other branches.

    The Court, however, declined to engage the issue. Nonetheless, this Essay argues that the doctrine is still very relevant in the context of common law causes of action for climate change, and does so in three parts. Article III standing has three seemingly simple components: 1 the plaintiffs must suffer an actual injury, 2 the injury must be caused by the defendant, and 3 the courts must be able to provide a remedy for that injury.

    Connecticut AEP , the Justices deadlocked over the application of the test to a common law action for nuisance. As AEP illustrates, the apparent simplicity of the test is misleading. The claims were brought against utilities by states complaining that carbon emissions from power plants were contributing to harm from climate change. The Court devoted only a few cryptic sentences to the issue of standing. Four Justices found standing based on Massachusetts v. This disposition may leave the reasoning of the Justices mysterious, but AEP is a powerful illustration of the deep flaws in current doctrine: first, its incoherent application; second, its injection of merits issues into a supposedly jurisdictional determination; third, its manipulability in the hands of creative, well-resourced lawyers; and fourth, its resulting failure to advance any intelligible vision of the proper role of the federal judiciary.

    Connecticut AEP closes another door for those most vulnerable to climate change. This Essay analyzes these climate justice implications of AEP. It also recognizes the direct kinship between social inequality and environmental degradation. The Essay argues that the common law nuisance claims rejected by the Court in AEP provide an important mechanism for the climate vulnerable to achieve corrective justice. Corrective justice is one of the most important goals of tort law because of its focus on the relationship between the tortfeasor and victim. While there are myriad interpretations of corrective justice theory and its application, this approach at its core counsels simply that individuals who are responsible for the wrongful losses of others have a duty to repair those losses.

    Further, rectification of harms suffered can help restore the moral balance upset by the externalized costs that climate change inflicts on individuals and communities. The corollary, therefore, is that tort law should provide a venue and possible damages remedy for CJ plaintiffs whose claims—namely, injuries to life and property—demand compensation from the worst offenders. Simultaneously, several of the same states sued the U.

    Although the cases raised different legal arguments, their fates were intertwined. It was well understood that prevailing in one case would likely preclude victory in the other. Indeed, the point of parallel litigation was to make it more difficult for industry and the EPA to stave off action. Thus, when the states prevailed in Massachusetts v. Connecticut AEP was all but assured. February 16, was a day of reckoning for humankind.

    But Jeopardy! Watson is a computer built for a very specific purpose: to beat humans at Jeopardy! Since his victory, pundits and IBM staffers have suggested that the technology powering Watson might have many uses— in the gaming world, for example, or improving customer service from much-maligned automated call centers. Only a week after winning the Jeopardy! New textualists believe in reducing the discretion of judges in analyzing statutes.

    Thus, they advocate for relatively formulaic and systematic interpretative rules. How better to limit the risk of normative judgments creeping into statutory interpretation than by allowing a computer to do the work? This Essay considers whether judges might share the job of statutory interpretation with computers like Watson.

    First, it briefly lays out how new textualists approach statutory interpretation. Finally, the Essay pulls the threads together, discussing how Watson might both aid textualist interpretation and perhaps perform such interpretation on his own. Second, promisors can also make rescission less desirable for counterparties by reducing the price that they charge, implying a lower, less attractive remedy in restitution.

    This Essay challenges the second of these claims. First, promisors will not be incentivized to reduce their prices because lower prices do not lead to a drop in the number of counterparties that opt for rescission. This is because a drop in prices allows low-value buyers to enter the market—an effect Brooks and Stremitzer critically neglect. These buyers have a relatively high probability of opting for rescission, and their entrance can therefore increase the overall number of returns that a seller faces. Second, liberal rescission rights, because they serve a valuable insurance function for the counterparty and are costly to the seller, might actually lead to higher prices.

    Without any evidence as to the likelihood of the differing effects on price, Brooks and Stremitzer cannot enlist the price effect of rescission as an argument in favor of a regime that provides for a more liberal allowance of rescission rights. Over the past decade, scholarship tax credit programs, like the one at issue in Arizona Christian School Tuition Organization v.

    Winn , have emerged as a popular education policy tool. With two exceptions, scholarship tax credit programs exclusively target low-to-moderate-income students. For example, in Florida—the state with the largest scholarship tax credit program in the nation— eligibility is limited to students qualifying for free or reduced-price lunches, and scholarships are disproportionately awarded to Latino and African-American students.

    Thus, scholarship tax credit programs help open the doors of high-quality private schools to thousands of children of modest means who might otherwise languish in failing public schools. Winn , the U. Cohen only bestows standing upon taxpayers contesting direct monetary outlays on Establishment Clause grounds. Flast , the majority held, does not extend standing to taxpayers objecting under the Establishment Clause to tax provisions such as the Arizona income tax credit.

    The Court has often confronted the question of whether direct public outlays and tax subsidies are equivalent for constitutional purposes. The Supreme Court may be headed for its most dramatic intervention in American politics—and most flagrant abuse of its power—since Bush v. The constitutional objections are silly. However, because constitutional law is abstract and technical and because almost no one reads Supreme Court opinions, the conservative majority on the Court may feel emboldened to adopt these silly objections in order to crush the most important progressive legislation in decades.

    One lesson of Bush v. So the fate of health care reform may depend on the constitutional issues being understood at least well enough for shame to have some effect on the Court. Although customary international law CIL has historically been one of the principal forms of international law, it is plagued by debates and uncertainties about its proper sources, its content, its usefulness, and its normative attractiveness. While some of these debates and uncertainties are longstanding, they have intensified in recent years, in part because of the rise of multilateral treaty-making, which allows nations collectively to negotiate and codify broad areas of international law i….

    That decision was largely reversed by the enactment of the Sixteenth Amendment. Today the taxing power is one of thre…. William Eskridge, Jr. In this Essay, we bore in on a central element of their thesis: the idea of entrenchment. There is a widespread intuition that the Constitution provides much less than a full blueprint of the structure and powers of the contemporary federal government. At present, this constitution of health security is wobb…. Bush, also promised comprehensive immigration reform, which was not produced during his eight years in office. In A Republic of Statutes, William Eskridge and John Ferejohn argue convincingly that statutes represent basic components of our constitutional structure.

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