HLPR ONLINE

The goal of the Harvard Law & Policy Review, and its companion site hlpronline.com, is clear: to foster innovative approaches to resolving legal and policy problems by providing a credible and prominent forum for substantive debate between progressive legal scholars, policymakers, and practitioners. Of course the devil is in the details. As we launch the journal and the site, what do you hope to see from the official journal of the American Constitution Society? Join the public discussion here.

Posted by slabuda at 09:21 PM | Permalink | Comments (2) | TrackBacks (0)

ABOUT THE REVIEW | BOARD OF ADVISORS | EDITORIAL STAFF | SUBMISSIONS | SUBSCRIPTION

The Harvard Law & Policy Review (HLPR) is published twice annually and serves as the official journal of the American Constitution Society for Law and Policy. The American Constitution Society provides financial support for the publication of the review. The review invites innovative approaches to policy challenges by providing a credible and prominent forum for substantive debate between progressive legal scholars, policymakers, and practitioners. HLPR is a nexus between the worlds of academia and practice, with a focus on promoting scholarship with practical application to societal challenges.

The American Constitution Society (ACS) takes no position on particular legal or policy initiatives. All expressions of opinion in the Harvard Law & Policy Review (HLPR) are those of the author or authors and do not reflect the views of HLPR, Harvard Law School, or ACS.

HLPR is a student-run journal at Harvard Law School.

ISSN (Online): 1935-2107
ISSN (Print): 1935-2077

Board of Advisors

David Barron
Hon. Artur Davis
James Forman, Jr.
Hon. John J. Gibbons
Sherrilyn A. Ifill
Hon. Abner J. Mikva
Beth Nolan
John Payton
Thomas E. Perez
John Podesta
Peter J. Rubin
Reva Siegel
Kathleen M. Sullivan
Gerald Torres
Hon. Patricia M. Wald
Elizabeth Warren

Volume 1 (2007) Editorial Staff

Michael Negron - President; Co-Founder
James Weingarten - Editor in Chief; Co-Founder
Elizabeth Dodson - Managing Editor
Kevin Lovecchio - Deputy Managing Editor

Policy
Lauren Popper Ellis - Executive Policy Editor
Dan Geldon - Senior Policy Editor
Hayley Horowitz - Senior Policy Editor

Articles
Matt Macdonald - Executive Articles Editor
Amy C. Barker - Senior Articles Editor
Derek Lindblom - Senior Articles Editor
Lauren Weldon - Senior Articles Editor

Online Content
Jason Spitalnick - Executive Online Content Editor
Allison Boscarine - Senior Online Content Editor
Patrick Croke - Senior Online Content Editor
Jessica Tucker-Mohl - Senior Online Content Editor

Student Writing
Tejinder Singh - Executive Student Writing Editor
Greta Gao - Senior Student Writing Editor

Technical Editing
Elizabeth Dodson - Executive Technical Editor
Ben Rossen - Senior Technical Editor

Previous Editorial Staff Lists
Volume 1 Number 1 (February 2007)

Submission Policy

The Harvard Law & Policy Review welcomes articles and essays from professors, judges, practitioners, policymakers, and students. Unsolicited manuscripts should be typed and double-spaced in Microsoft Word format, and citations should conform to The Bluebook: A Uniform System of Citation (18th ed. 2005). Submissions should range in length from 5,000 to 10,000 words, with footnotes. Student and/or online content submissions should be less than 3,500 words. Submissions should be sent to the Review via e-mail: hlpr @ law.harvard.edu.

Consideration for the Winter issue requires receipt of articles by August; Spring issue articles must be received by December. All manuscripts submitted become the property of HLPR and will not be returned to the author. In addition to the manuscript, authors must include an accurate abstract of not more than 250 words, as well as a cover letter and resume or curriculum vitae. Authors must also ensure that their submissions include a direct email address and phone number at which they can be reached throughout the review period.

Authors should note that the readership for HLPR includes approximately 6,000 members of the American Constitution Society (ACS) receiving the journal as part of their membership in ACS. HLPR provides a forum for progressive solutions to pressing legal and policy problems. Accordingly, HLPR welcomes essays directed at an audience beyond academia.

Selection Process

The HLPR editorial staff decides upon submitted manuscripts. Upon selection, we will contact the author with a contract and further information on the publication process. The HLPR editorial process is rigorous, and authors should expect to work closely with editorial staff.

Subscription Policy

The Harvard Law & Policy Review (ISSN 1935-2077) is published twice each year, in the winter and summer.

Non-student members of the American Constitution Society receive a free subscription as part of their membership. To join ACS, please go to http://www.acslaw.org/join.

Individuals who are not ACS members may subscribe to HLPR for $50 per year.

Institutions may subscribe to HLPR for $40 per year.

To subscribe, please send a check or money order to:

Harvard Law & Policy Review
c/o Student Journals Office
Hastings Hall
1541 Massachusetts Avenue
Cambridge, MA 02138

Checks should be made payable to the American Constitution Society.

Please include with your payment a letter indicating the complete address to which subscriptions should be mailed. If you interested in receiving copies of back issues of HLPR, please contact William S. Hein & Co., Inc. at (800) 828-7571.

Domestic claims of nonreceipt of issues should be made within 90 days of the month of publication; thereafter, the regular back issue rate will be charged for replacement. All notifications of changes of address should include old and new addresses, with ZIP codes. Please inform us in writing 60 days in advance to ensure prompt delivery.

Posted by slabuda at 09:16 PM | Permalink

Carol S. Steiker^*

I was thrilled to learn of the birth of the new Harvard Law & Policy Review and happy to be invited to comment on its potential as a new feature of the Harvard Law School and ACS landscape. I feel a little bit like one of the fairies in the Sleeping Beauty fairy tale who were invited to the baby princess’s baptism and came offering gifts. So, here are my offerings:

Wearing my law professor hat, I offer the new baby journal a hammer – the “hammer of justice” from the famous folk song, “I’ve got hammer.” As a teacher, I worry sometimes that by teaching our students all the multifarious and subtle moves of legal argument, we somehow unwittingly and unintentionally convey the message that because there is no single “right” legal answer to difficult legal questions, all legal arguments are created equal and that “rightness” in the moral sense drops out of the picture as well. Nothing could be further from my own deeply held beliefs, and nothing could help sustain students more in their attempts to hold onto and deepen their moral commitments than participation in publishing a journal with an openly normative aspiration.

Wearing my legal scholar hat, I offer the new baby journal a bridge, to connect the ivory tower of legal academia with the world of legal policy and practice. The legal academy has moved, in what I believe has been a largely salutary development, toward more robust interaction with and reliance upon specialized academic disciplines like economics, history, political theory, sociology, and philosophy. More and more entry-level teaching candidates, at least at the upper-echelons of legal academia, hold advanced degrees in one of these fields, and legal scholarship itself reflects the change. A quick look at the titles of some recent legal scholarship makes my point: “What Divides Textualists from Purposivists?” in the Columbia Law Review (2006); “Bilateral Accidents With Intrinsically Interdependent Costs of Precaution” in the Journal of Legal Studies (2005) (with pages and pages of equations), and “Extra Rempublicam Nulla Justitia?" in Philosophy and Public Affairs (2006). Now, I’ve read every word of these three articles (though perhaps not every equation in the “Accidents” piece), and these pieces are all excellent examples of current legal scholarship. But there is certainly room for and a great need for normative doctrinal and policy work, which is in danger of becoming unfashionable. A first-rate journal published at a first-rate law school that seeks out and generates high-quality work of this type will help to fill a widening and lamentable gap in the world of published legal scholarship.

Wearing my hat as Dean Elena Kagan’s “Special Advisor on Public Service,” I offer the new baby journal a map, to foster exploration of the routes that connect legal education to world of public service. The Dean and I and many other members of the faculty and staff of Harvard Law School urge our students not to forget their opportunities and obligations to promote the public good as lawyers. The conversations and interactions that the new journal will foster among students, scholars, policy makers and activists will serve as signposts along the many roads that law students can follow to promote the public good with their newly developing legal skills.

And finally, wearing my hat as one of the Co-Chairs of the ACS Issue Group on Criminal Justice, I offer the new journal a visitor’s pass to our nations prisons and jails. The perspective of the policed and imprisoned is often missing from our nation’s many discussions of criminal justice, because the more than two million Americans who are currently incarcerated are among the poorest, least educated, most disenfranchised, and least powerful people in the country. They are also disproportionately drawn from racial minority groups, and thus our quest for criminal justice is inextricably tied to our nation’s difficult quest for racial justice. The new journal would do well to use my pass to look carefully at America’s enormous commitment to imprisonment and its impact on the communities which are most affected by our current criminal justice policies.

Remember that in the Sleeping Beauty story, the one fairy who was not invited to the baby’s baptism was enraged by the omission and showed up anyway, bestowing a curse on the baby that she would prick her finger on her 16th birthday and fall fast asleep (at least until rescued by her prince). The new journal should remember always to include those who question or even passionately reject the journal’s own progressive vision. Progressive activists for social change must welcome these sorts of challenges in order to widen and deepen their visions and to become compelling agents for change. Otherwise, we’ll all nod ourselves off to sleep in a stupor of self-satisfied agreement. We can’t afford to wait for a prince to come and wake us up. So, baby journal, be your own alarm clock and keep us all awake with your incessant, exciting buzz.

* Carol Steiker is Professor of Law at Harvard Law School and a Faculty Associate at the Harvard University Edmond J. Safra Foundation Center for Ethics.

Preferred citation: Carol Steiker, Baptismal Blessings for a Baby Journal, 1 HARV. L. & POL'Y REV. (Online) (Sept. 18, 2006), http://www.hlpronline.com/2006/06/steiker_01.html.

Posted by slabuda at 09:14 PM | Permalink

Robert Post^*

In 1978, the Harvard Journal of Law and Public Policy was created with the “primary aim” of providing “a forum for alternatives to the liberal establishment.”¹ The Journal conceived itself as a “Vox clamantis in deserto.”² Despite “the proliferation of legal publications”—“Harvard now has law reviews devoted to civil rights-civil liberties law, environmental law, international law, legislation, and women’s law”— “virtually all of the new publications, like their older brethren, maintain a basically liberal editorial perspective.”³

At the time, conservatives were a definite and beleaguered minority in the law schools. But their minority status was a source of strength, as well as weakness. It created incentives for conservatives to join together to confront a common and dominant opponent. But this did not mean that conservatives suppressed dissent. To the contrary, if the “distinguishing feature” of the Journal was its “conservative” “editorial perspective,” it was nevertheless determined to provide voice for “a broad range of conservatives, libertarians, and members of both major political parties."⁴ The Journal provided a safe space for the many different stripes of conservatives to debate priorities and goals, with the understanding that their ultimate aim was to overturn an overweening “liberal establishment.”

Until the end of the 20th Century, liberals had no analogous incentives to unite. Progressives felt insulated and protected within the largely sympathetic environment of the law schools. Clinton’s presidency offered a false sense of security. Progressives felt free to pursue their distinctive agendas and to splinter into what it has now become fashionable to call “issue silos.” Liberals defined themselves in terms of the particular policy perspectives they wished to advance, rather than in terms of a common opposition to conservative domination.

Bush v. Gore was the wake-up call. Breaking all the rules,⁵ a conservative Court appointed a conservative President, and suddenly progressives were entirely shut out from the federal government. Liberal domination of law school faculties and publications could no longer hide the left’s extreme vulnerability, as the right moved to impose conservative judicial, legislative and regulatory agendas. It is in this environment that the American Constitution Society, the progressive counterpart to the Federalist Society, was born. The left had finally learned that it had to come together in united opposition to what had become a conservative establishment.

That is why we should welcome the advent of the Harvard Law & Policy Review. The Review will serve two indispensable functions. It will provide a venue in which the left can dismantle its issue silos and begin to conceive itself as a single movement aspiring to a common goal. And it will provide a safe and hospitable forum in which progressives can debate the best strategies and tactics for loosening the strangulating grip of conservative ideology on national policy.

Make no mistake. The left has a great deal of work to do before it can achieve agreement. We are riven with tensions. Debate rages about the proper constitutional role of citizenship, whether it promotes the forms of social solidarity necessary for equitable redistribution or whether it invidiously distinguishes among persons. Debate rages about how to regard international governance, whether it is to be encouraged in the context of human rights or discouraged in the context of organizations like the WTO or NAFTA. Debate rages about the proper role of federalism, whether national uniformity and preemption is a good, as in the context of civil rights legislation, or an evil, as in the context of DOMA or tort reform. Debate rages about innumerable other topics—about the proper role of markets and incentives in regulatory interventions, about the proper role of religion in the modern nation-state, about First Amendment rights and campaign finance reform, about the regulation of racist speech, about the relationship between freedom and equality.

Differences and divisions of this kind are healthy and invigorating, but only if debate is approached on the presupposition that a general progressive movement must be forged whose purpose is to dislodge conservative hegemony. Because HLPR is a venue that carries within it that presupposition, it will provide a constructive framework for progressive debate. It will unite us, even as we discuss our differences, because we will be discussing how we can and should unite. In this way HLPR will move us past the splintered and particularist perspectives of the 20thCentury. We may even begin fundamentally to rethink liberal positions, in ways that are not beholden to the traditional fractured constellation of progressive organizations.

In a forthcoming article, Reva Siegel and I argue that a convincing liberal constitutionalism will not emerge until progressives develop a politics based upon a vision of collective life able to mobilize persons in defense of their understanding of national identity, which is to say in defense of their idea of the Constitution.⁶ In our view, the ideology of originalism draws its force and authority from a politics of restoration that has aroused and united conservative citizens, government officials, and judges.⁷ The left needs to develop a politics of similar power and popular attraction, whether it rests on a vision of restoration or redemption. The Harvard Law & Policy Review will be a perfect venue in which to debate how such a politics may be created. I very much look forward to learning from its pages.

* Robert Post is the David Boies Professor of Law at Yale Law School.
1 E. Spencer Abraham & Steven J. Eberhard, Preface, 1 HARV. J. L. & PUB. POL’Y vii (1978).
2 Id. at viii.
3 Id. at vii.
4 Id.
5 See Robert Post, Sustaining the Premise of Legality: Learning to Live with Bush v. Gore, in BUSH V. GORE: THE QUESTION OF LEGITIMACY 96 (Bruce Ackerman, ed., 2002).
6 See Robert Post & Reva Siegel, Originalism as a Political Practice: The Right’s Living Constitution, 75 FORDHAM L. REV. (forthcoming 2006).
7 Id.

Preferred Citation: Robert Post, Welcoming the Harvard Law & Policy Review, 1 HARV. L. & POL'Y REV. (Online) (Sept. 18, 2006), http://www.hlpronline.com/2006/06/post_01.html.

Posted by slabuda at 09:11 PM | Permalink

Michael Negron and James Weingarten^*

We are all pragmatists now. That is, the consequences of law and policy for people’s lives are simply too vital to be subjugated to ideology. And this review begins from a premise that government today suffers from an excess of ideology and a dearth of attention to real-world consequences. The fault does not lie solely with the Bush Administration; the left and right alike have minted polemic as the chief currency of our discourse.

If the late twentieth century proved to be, as Irving Kristol maintained, an age of ideology, we hope the Harvard Law & Policy Review helps augur an era of principled pragmatism. With HLPR, we propose an arena for frank debate. Participants in the conversation that unfolds in these pages need not subscribe to any single dogma or doctrine. Contributors to HLPR will differ in opinion yet share progressive principles founded upon the universal respect for human dignity and rights, a commitment to equal access to justice and opportunity, and the proposition that where an individual starts in life must not determine where she finishes.

We reject programmatic approaches to law and policy as incapable of keeping pace with a twenty-first-century America of instantaneous communication and commerce. An approach to constitutional interpretation dependent upon a textual séance with the Founders threatens to, in the words of Chief Justice Marshall, “cripple the government and render it unequal to the object for which it is declared to be instituted.” The once striking observation that global markets deeply impact our daily lives is now banal, but the resulting pressure to adapt legal doctrines and government policies is acute. The use of power (hard and soft) abroad must be premeditated and alert to possible repercussions. The specter of perpetual war menaces our bedrock principle of separation of powers. At home, an influx of immigrants from Latin America, Asia, and the Middle East tests the flexibility of the Religion Clauses and requires a reevaluation of the meaning of citizenship itself. Demography necessitates reevaluation of how to keep entitlement programs afloat. And still, even when the new wine must be poured into old bottles, the solutions to twenty-first-century challenges must be our own.

Although the review's ethos sounds in the values of progressivism, these common values will not produce uniformity of thought. We expect HLPR to inspire, to challenge, and sometimes to infuriate our readership. HLPR will revisit progressive assumptions about the relationship of culture and religion to law, the place of the individual in a capitalist society, and the normative value of markets. Stated another way, we invoke Lionel Trilling to express our hope that HLPR helps “recall liberalism to its first essential imagination of variousness and possibility.” We welcome the debate to come.

* Michael Negron & James Weingarten are students at Harvard Law School and Co-Founders of the Harvard Law & Policy Review.

Preferred Citation: Michael Negron & James Weingarten, By Way of Introduction, 1 HARV. L. & POL'Y REV. (Online) (Sept. 18, 2006), http://www.hlpronline.com/2006/06/
negron_weingarten_01.html.

Posted by slabuda at 09:10 PM | Permalink

• By Way of Introduction
  • Michael Negron and James Weingarten


• Welcoming the Harvard Law & Policy Review
  • Robert Post


• Baptismal Blessings for a Baby Journal
  • Carol S. Steiker

Welcome to Harvard Law & Policy Review Online. Like the print edition, HLPR Online is a forum for progressive debate about new and unorthodox solutions to the most pressing problems facing the nation. In addition to the essays, articles, and book reviews featured in the print edition, HLPR Online will include responses to print articles, special web-only essays, and interactive features to enable our readers to participate in the debate. Our goal for this website is the same as in our printed journal: to foster new solutions free from the dictates of ideology, but founded upon the timeless progressive values of respect for human dignity, individual rights and liberties, participatory self-government, and equal treatment and opportunity.

Posted by slabuda at 09:06 PM | Permalink