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NATIONAL SECURITY--TELEPHONY METADATA COLLECTION--WHITE PAPER ARGUES METADATA COLLECTION IS LEGAL UNDER THE USA PATRIOT ACT.--ADMINISTRATION WHITE PAPER: BULK COLLECTION OF TELEPHONY METADATA UNDER SECTION 215 OF THE USA PATRIOT ACT [...]

On March 7, 2014, the International Criminal Court (ICC) issued a judgment in the case of Prosecutor v. Katanga. (1) Germain Katanga was acquitted of rape and sexual slavery, charged [...]

THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB. Edited by Karen J. Greenberg and Joshua L. Dratel. Introduction by Anthony Lewis. New York: Cambridge University Press. 2005. Pp. xxxiv, 1249. [...]

It is an extraordinary privilege to be able to introduce a previously unpublished essay by H. L. A. Hart, one of the most distinguished figures in twentieth-century legal philosophy, alongside a fine commentary by Geoffrey Shaw, the scholar whose intellectual imagination and meticulous archival research has brought the essay to light. It is particularly apt that H. L. A. Hart's essay should be published by this Review, appearing fifty-seven years after it was written in the early months of his visit to Harvard, thus joining a distinguished tradition of posthumously published scholarship of the 1950s, most notably Lon Fuller's The Forms and Limits of Adjudication, (1) and Henry Hart and Albert Sacks's The Legal Process. (2) Its publication is also timely, albeit long delayed, in that it comes hard on the heels of a period in which the intellectual history of legal thought has been the subject of wide interest and some very powerful scholarship. (3) Hart's year at Harvard significantly shaped the course of his subsequent work. (4) The essay now being published, entitled Discretion, (5) helps to explain why that was the case, for it is a testimony to the intensity of his engagement with colleagues in the Law School. During the course of the year, he laid the foundations for the vast majority of his work over the next decade: for Causation in the Law, (6) for The Concept of Law, (7) and for Punishment and Responsibility. (8) The stimulating American context, as he later put it, 'relaxed one's neuroses'; '[i]deas started pullulating at a rather alarming rate. I thought, 'Am I going mad?': I was getting so many different things inside.' (9) In his Essay, Shaw presents a searching analysis of the paper's argument as well as a persuasive assessment of its overall significance, and I do not propose to tread the same ground. In this brief introduction, I shall rather reflect, from a biographer's viewpoint, on the significance of Discretion for our understanding of the trajectory of Hart's ideas and on the significance of his year at Harvard. I shall then move on to consider the intriguing question of why Hart did not subsequently publish or build on some of the key insights in the paper itself. Here I highlight the fact that, almost uniquely in Hart's work, Discretion features a notable emphasis on the significance of institutional factors in our understanding of the nature of legal decision-making; and I argue that Hart's failure fully to develop this insight in the essay, or to build on it in his subsequent work, derives from the fact that such a development would have necessitated a diversion from the philosophical issues that were his core intellectual concern, and moreover would have presented certain dangers to his conception of legal positivism. I shall conclude by considering what contribution the essay makes to our overall interpretation and evaluation of Hart's legal philosophy., I. H. L. A. HART AND HARVARD'S 'YEAR OF JURISPRUDENCE' I should set out by confessing that when Geoffrey Shaw told me two years ago that he intended to work [...]

In September 1994, Professor Ronald Dworkin presented a new paper at the NYU Colloquium in Legal, Political, and Social Philosophy. Earlier that year, the second edition of Professor H.L.A. Hart's [...]

B. What Is Discretion? 1. The Analytical Approach to Definition.--Hart devoted a large portion of his paper to the first question: 'What is discretion ...?' It was a classic application [...]

Imagine a writer who after a flash of inspiration conceives of a poem and commits it to paper. Copyright law grants the author a standard bundle of rights--rights to copy, [...]

DNA AND THE CRIMINAL JUSTICE SYSTEM: THE TECHNOLOGY OF JUSTICE. Edited by David Lazer. Cambridge, Mass.: MIT Press. 2004. Pp. xviii, 414. $27.00 (paper). DNA evidence has led to the [...]

ONE ELECTORATE UNDER GOD?: A DIALOGUE ON RELIGION & AMERICAN POLITICS. Edited by E.J. Dionne, Jr. et al. Washington, D.C.: Brookings Institution Press. 2004. Pp. xv, 239. $17.95 (paper). God [...]

SPEAKING OF CRIME: THE LANGUAGE OF CRIMINAL JUSTICE. By Lawrence M. Solan & Peter M. Tiersma. Chicago, Ill.: University of Chicago Press. 2005. Pp. x, 289. $22.00 (paper). "So when [...]

A federal statute restricts the habeas corpus remedy, but do federal judges also have equitable discretion to deny relief to unlawfully detained prisoners? Over the last several terms, the Supreme Court has begun to embrace this novel, ambitious view of habeas law. Although the Court has long cited what I call 'negative' equity as a source of authority to devise its own limits on habeas relief, it had never--until recently--suggested that lower courts have free-floating discretion to deny relief to which prisoners are otherwise entitled. This Article, which consists of three parts, considers and refutes the 'new negative equity.' In Part I, I set forth the older version of negative equity and then describe the recent departure therefrom. In Part II, I explain why the new negative equity doesn't follow from any text-centered approach to statutory interpretation--relying substantially on context and drawing heavily from a statutory history that decisional law and academic discourse have thus far neglected. In Part III, I focus on the most troubling register of the new negative habeas equity, which involves a rule against habeas relief for those who are not 'factually innocent.' Equitable power to refuse relief might be consistent with 'comity, finality, and federalism,' as it were, but orphaned policy preferences are not law. Under the text-centered approach to law endorsed by most who favor habeas restrictions, such a practice is impossible to justify. Although no interpreter can be perfectly certain of statutory meaning, the new negative equity is both inconsistent with habeas history and a least-plausible reading of the modern statute., CONTENTS INTRODUCTION 2223 I. THE RUPTURE 2226 A. Habeas and Equity: The Standard Story 2227 B. The New Negative Equity 2229 II. EVALUATING NEGATIVE EQUITY 2232 A. Analyzing [section] 2243 [...]

Today, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it wasnot always so. For most of American history--indeed until relatively recently--Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative--exemplified by then-Professor Elena Kagan's seminal article Presidential Administration--is Whig history. It offers a depoliticized interpretation that presents White House primacy as the product of steady progress toward greater administrative rationality. This Article offers a historical corrective. It explains how 'administration under law' was lost and replaced with a new constitutional baseline, 'presidential administration.' It is both an account of constitutional change--how one understanding of constitutional text and structure gave way to a different one--as well as a history of the regulatory state and how, beginning in the 1980s, federal officials reworked the relationship between the President, Congress, and administrative agencies in order to expand the role of market actors in governing economic activity. The Article draws attention to the intense political conflict that accompanied the advent of presidential administration. What is today bipartisan was originally nothing of the sort. It also reveals how a new interpretation of Article II took hold without any fundamental doctrinal or statutory change or shift in formal law. It highlights the emergence of a neoliberal consensus around aspects of economic regulation that incentivized and buttressed presidential administration as an approach to administrative governance. And it reveals the relative novelty of originalist arguments about the 'Unitary Executive.', CONTENTS INTRODUCTION 2133 I. THE MANAGERIAL PRESIDENCY BEFORE REAGAN 2143 A. The Progressive Era 2144 B. The Nixon Administration 2146 C. President Carter's Turn 2150 II. PRESIDENT REAGAN'S GAMBIT 2153 [...]

In July 2019, at approximately four months pregnant, Lauren Kent sent a message to her jail's private medical contractor that read: 'PLEASE IM BEGGING YOU I NEED A DOCTOR.' (1) [...]

The editors of the Harvard Law Review respectfully dedicate this issue to Professor Charles J. Ogletree, Jr. OUR STATEMENT ON THE PASSING OF CHARLES OGLETREE Barack Obama (*) & Michelle [...]

INTRODUCTION I. BAIL ON THE BOOKS: PRETRIAL DETENTION AS A CAREFULLY LIMITED EXCEPTION A. Origins of Pretrial Protections B. Bail Procedure in America C. Access to Bail on the Common [...]

'Sunlight is said to be the best of disinfectants' (1)--or so the adage goes. At the time, Justice Brandeis's words described a framework for limiting the monopoly power of investment [...]

INTRODUCTION The debate over workers' rights rages on. This is not a partisan issue. Scholars have argued that, echoing the 'moment of contract supremacy' known as the Lochner era, coercive [...]

The editors of the Harvard Law Review respectfully dedicate this issue to Justice Sandra Day O'Connor. In a bench statement delivered when the Supreme Court convened on December 4, 2023, [...]

For decades, a question has simmered in criminal procedure: Can the Fourth Amendment seizure analysis account for a suspects race? Scholars have long advocated for courts to consider race when resolving Fourth Amendment questions, but to date, the Supreme Court has not provided a definitive answer. The question has now bubbled to the surface. With calls for advocates to raise race when litigating Fourth Amendment questions, and with more and more advocates heeding those calls, courts are being asked to contemplate how race factors into deciding whether a person has been seized. When the question is explicitly asked, courts have answered differently, with many refusing to consider race as part of the seizure analysis. It is easy to think that it is only a matter of time before the Supreme Court holds that race has no place in the Fourth Amendment, especially given its muscular articulation of colorblindness in the recent affirmative action cases. Indeed, the lower courts that have held that race cannot be considered as part of a seizure analysis have couched their decisions in the same rhetoric and reasoning found in the Supreme Court' colorblind rulings. As this Article explains, when scrutinized, colorblind constitutionalism is an illogical fit for the Fourth Amendment. In fact, the analytical underpinnings of colorblindness are consistent with race being considered as part of the seizure free-to-leave analysis. That race can be relevant to a seizure is reinforced when considered against the broader backdrop of Fourth Amendment law and all of the many ways it implicitly and explicitly recognizes race. This Article therefore clarifies that it is permissible to consider the racial identity of the Fourth Amendment's 'reasonable person.' But the insights of this Article extend beyond the Fourth Amendment, because at bottom, it is a warning against 'case law creep'--where case law is imported from one context to another to advance a specific ideological mission without interrogating whether the case law supports the cause in that context. It is a reminder that the law should not be an unyielding wrecking ball that swings from jurisprudence to jurisprudence, smashing any hope of progress. Thus, ultimately, this Article seeds hope that the law can catch up to our pluralistic society and learn to recognize a multitude of experiences., CONTENTS INTRODUCTION I. RACE-ING AND (E)RACE-ING SEIZURES A. The Reasoning of Courts that Do Not Consider Race B. The Reasoning of Courts that Consider Race II. PORTING COLORBLINDNESS TO THE [...]

THE PROFIT MOTIVE: DEFENDING SHAREHOLDER VALUE MAXIMIZATION. By Stephen M. Bainbridge. Cambridge, U.K.: Cambridge University Press. 2023. Pp. 223. $34.99. INTRODUCTION In 2019, the Business Roundtable (BRT), a fifty-year-old association [...]

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid to the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state's law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law rule; it instructs courts to adjudicate the case under the law of another state. Because one state's choice-of-law rules are not binding on the courts of other states, the provision may be disregarded by such courts, which may apply the statute's substantive provisions to cases beyond the statute's specified scope. On another view, cases beyond the reach of the statute are subject to another law of that state, such as its more general common law rules. A third view agrees with the first view that the enacting state has no law for excluded cases but insists that the provision limiting the law's scope is not a choice-of-law rule. The provision is written as a limit on the law's reach, and this substantive limitation must be respected by all courts. The statute may not be applied to cases beyond its specified scope. Each of the competing understandings of non-extraterritoriality has prominent judicial and scholarly defenders, and each finds support in successive iterations of the Restatement of Conflict of Laws. This Article considers the judicial and scholarly support for each of the three positions and defends the view that external scope limitations are choice-of-law rules. Limitations on external scope ordinarily reflect the lawmaker's deference to the legislative authority of other states. They do not reflect a legislative preference that a statute's substantive provisions not be applied to cases beyond its specified scope. If the legislature did intend to establish a different rule for cases involving out-of-state persons or events, the provision limiting the statute's scope would in most cases be unconstitutional. In function and intended effect, a statutory provision limiting a statute's external scope is a choice-of-law rule and, as such, may be disregarded by the courts of other states. But this position poses a conundrum: If a state has no law for cases beyond a statute's territorial scope, do courts violate their duty to decide cases according to law when they apply the statute to a set of facts that the statute does not purport to reach? Resolving this puzzle yields valuable insights into the nature of choice-of-law rules and the choice-of-law enterprise., CONTENTS INTRODUCTION I. EXTERNAL SCOPE LIMITATIONS IN THE SECOND AND THIRD RESTATEMENTS A. Renvoi 1. The Second Restatement and the One-Sided Conflicts Theory 2. The Draft Third Restatement and the [...]

A teenager in East Boston walks to school wearing a blue windbreaker --a gift from his mother--and a Chicago Bulls hat. Along the way, he crosses paths with a friend [...]

Introduction When this Note speaks of drag, it will speak of joy. It will speak of brunch servers, (1) preschool teachers, (2) construction workers, (3) opera singers, (4) academics, and [...]

INTRODUCTION Addressing the nation in 1963, President Kennedy declared that 'the right to be served in facilities which are open to the public ... [is] an elementary right.' (2) Over [...]

In Violence and the Word, Professor Robert Cover describes law as 'tak[ing] place in a field of pain and death.' (1) International law and human rights adjudication, in particular, could [...]

For nearly two centuries, the law has allowed servitudes that 'run with' real property while with few exceptions refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners--but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. Courts' interpretations of copyright law enabled these developments in the context of software licensing, but these licenses have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions of contract doctrine, such as whether opening shrinkwrap constitutes assent to be bound. Property concepts never enter their analysis. The result of this oversight is that courts have de facto recognized equitable servitudes on chattels--a category that the common law has long rejected except in extraordinary circumstances. Yet because courts are often unfamiliar with property law principles, and because lawyers have failed to make property-based arguments, individual contracts cases are remodeling the architecture of property rights without anyone realizing it. This Article identifies the unexpected emergence of servitudes on chattels via contract law. It explores the consequences of that development and argues that we should see it as deeply troubling. By unwittingly establishing equitable servitudes on chattels, this change in law threatens to undo longstanding precedent, disrupt settled expectations, and effectively recognize a new form of property. More generally, elevating contract over other private law doctrines disrupts the private law's equilibrium in which a complementary suite of doctrines developed to promote economic liberty while curtailing opportunistic impulses. While the pathologies that have flourished internally in modern contract doctrine have been well studied by scholars, the way in which contract law is threatening to consume property and other areas of private law has received less attention. Using servitudes on personal property as a window into the larger problem of contract-dominated private law, this Article explores the private law's role in shaping environmental conservation, autonomy, innovation, and the legitimacy of the law itself. Those values are all in jeopardy if contract law is allowed to encroach on property and to erode the very concept of ownership., CONTENTS INTRODUCTION I. THE PUZZLE OF EQUITABLE SERVITUDES ON CHATTELS A. Basic Servitudes on Chattels B. Equitable Servitudes Before Software C. The Software Wrinkle II. IMPERIAL CONTRACT DOCTRINE A. The [...]

From time to time, contests over decedents' estates arrive in the federal courts. One such case began when a hotel magnate, dividing his empire among the children of his first [...]