Welcome to the Roundtable, JLPP’s online blog featuring student commentary on current cases and legal developments!
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JLPP Publishes Issue 2 of Volume 45’s Print Edition JLPP Staff The Harvard Journal of Law & Public Policy is proud to share Issue 2 of Volume 45’s print edition, just posted today. This Issue begins with an essay from U.S. Senator Kevin Cramer of North Dakota on federalism and environmental policy. Next up is an adapted version of Theodore Olson’s remarks at the 2021 Federalist Society National Lawyers Convention in remembrance of his late wife Barbara Olson. We are also thrilled to share two articles — one by Professor...read more
Lemon on the Chopping Block: The Establishment Clause Implications of Shurtleff v. City of Boston – Daniel D. Benson
Download PDF Lemon on the Chopping Block: The Establishment Clause Implications of Shurtleff v. City of Boston Daniel D. Benson The Supreme Court’s recent decision in Shurtleff v. City of Boston is formally about the First Amendment’s “government speech” doctrine. The root of the dispute, however, is not primarily Boston’s disdain for free speech but a misunderstanding of the Establishment Clause and continued reliance on the Lemon test. Over the last four decades, the Supreme Court has repeatedly protected religious speech and emphasized...read more
Jarkesy v. SEC Rapid Reaction: Do SEC Commissioners Really Have For-Cause Removal Protection? – Zachary Grouev
Download PDF Jarkesy v. SEC Rapid Reaction: Do SEC Commissioners Really Have For-Cause Removal Protection? By Zachary Grouev Last month, the Fifth Circuit continued its habit of making administrative law waves when a panel comprised of Judges Davis, Elrod, and Oldham issued a decision in Jarkesy v. SEC, ___ F.4th ___, No. 20-61007, 2022 WL 1563613 (5th Cir., May 18, 2022) (Jarkesy II). In Jarkesy II, the Securities and Exchange Commission alleged that George R. Jarkesy, who had established a pair of hedge funds, and Patriot28, L.L.C., a...read more
Why the Equal-Protection Case for Abortion Rights Rises or Falls with Roe’s Rationale – Sherif Girgis
Download PDF Editor’s Note: On July 25, 2022, Professor Girgis posted an update to this piece at the following link: https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2022/07/Girgis-14A-and-Abortion-Update-vF2.pdf. Why the Equal-Protection Case for Abortion Rights Rises or Falls with Roe’s Rationale Sherif Girgis For nearly 50 years, legal scholars who favor Roe v. Wade’s outcome but scorn its rationale have tried to find firmer footing for a constitutional abortion right. Roe and its follow-on case, Planned Parenthood v....read more
Download PDF Originalist Cherry-Picking Timon Cline For a legal theory self-professedly predicated on history and historical meaning, originalism is consistently bad at history. Originalists excel, however, at cherry-picking the record—ironic for a political strategy hatched to combat the Warren-era’s so-called judicial activism. Justice John Paul Stevens aptly and memorably identified this conspicuous selectivity of the originalist majority in his Van Orden v. Perry dissent. In his assault on “living common goodism,” as he pejoratively...read more
Download PDF Justice Alito’s Question “Can it be said that the right to abortion is deeply rooted in the history and traditions of the American people?” Corpus linguistic evidence suggests the answer is “No.” Stephanie Nicole Miller, J.D. (December 2022) Mary Kay Bacallao, Ed. D, J.D. THE QUESTION During oral argument in Dobbs v. Jackson Women’s Health on December 1, 2021, Justice Samuel Alito asked this question of Julie Rikelman, counsel for Jackson Women’s Health: “[C]an it be said that the right to abortion is deeply...read more
Download PDF Argument By Slogan Conor Casey and Adrian Vermeule When law professors try to write judicial opinions, even as a pedagogical exercise, the results are decidedly mixed, especially when the effort is derivative of a great original. When sitting judges try to write legal theory, the same is true. The occupational hazards for the judge-turned-occasional-theorist are that the necessary concepts and background knowledge, mapped out by intellectual pioneers, are half-remembered and hazily defined; that the judge unwittingly...read more
Download PDF The Unconstitutionality of Unfinished Receiver Bans Jamie G. McWilliam Introduction There is a long and storied tradition in the United States of privately manufacturing firearms. In fact, at the time of the founding, there were no large-scale firearm manufacturers. Rather, prospective firearm purchasers would either have to make the weapon themselves or find a blacksmith to create a one-off firearm for them. Private firearms were very precise—much more so than what governments could typically afford to provide for...read more
Download PDF Regulatory Certainty: A Flight of Fancy for the Migratory Bird Treaty Act Garrett Kral* The MBTA’s statutory provisions “have been the subject of repeated litigation and diametrically opposed opinions of the Solicitors of the Department of the Interior.” Introduction The United States Department of the Interior’s interpretation of the Migratory Bird Treaty Act (MBTA, or the Act) has varied during the Obama, Trump, and now Biden administrations. Central to this variance is a dispute over statutory...read more
Download PDF Corporate Bankruptcy Gets A Shakedown From Mass Tort Trial Lawyers Lawrence A. Friedman The U.S. corporate reorganization process is, at its core, about restructuring in a manner that maximizes corporate value and then redistributes that value efficiently to creditors of all types (employees, bondholders, etc.), thus staving off liquidation. The corporate bankruptcy system does this reasonably well. Insurance companies, the debtor, creditors and sometimes principals of the debtor come together to chart a course...read more