HLS Student Papers
Permanent URI for this collectionhttps://dash.harvard.edu/handle/1/2788313
Papers, law journal articles, writings, and other contributions by students at the Harvard Law School.
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Publication 15 Ways to Engage Youth Within Your Company and Why You Should Do It(2022-06-15) Cortesi, SandraLeaders in both the public and private sectors have increasingly acknowledged that society has an obligation to include the next generation in the decision-making processes that will shape their future. Young people (ages 12-18) seem to agree, and they have expressed a growing desire to be actively consulted on issues that matter to them. From environmental protection and climate change to social justice and mental health, youth are increasingly voicing their questions, concerns, and hopes about the future. Input from the next generation is particularly crucial when it comes to navigating the challenges of new technologies.Publication Algorithms in the Criminal Justice System: Assessing the Use of Risk Assessments in Sentencing(Berkman Klein Center for Internet & Society, 2017) Kehl, Danielle; Kessler, SamRisk assessment tools are increasingly being incorporated into all aspects of the criminal justice system. This paper focuses on the use of these tools in the sentencing process, a relatively recent development which raises fundamental legal and ethical questions about fairness, accountability, and transparency. The paper provides an overview of these issues and questions for further research that can help local policymakers who are currently implementing or considering implementing similar systems in their jurisdiction.Publication Data Analytics and the Fight against Housing Blight: A Guide for Local Leaders(Berkman Klein Center for Internet & Society, 2017) Pough, Bradley; Wan, QianPublication Punitive Damages and the Public/Private Distinction: A Comparison Between the United States and Italy(2015) Cappelletti, MarcoIn 2007, the Italian Supreme Court stated in a landmark judicial decision regarding the enforcement of a U.S. punitive damages award that Italian tort law is meant to serve a compensatory function and that there is no room for any goal other than corrective justice within domestic tort law. The majority of Italian jurists, while criticizing this monofunctional reading of tort law, have excluded the adoption of punitive damages as a domestic remedy on the grounds that they would blur the line between tort law and criminal law and that the conditions existing in the U.S. make punitive damages non-replicable in different settings. In this paper, I criticize the Italian rejection of punitive damages by offering a comparative analysis of the treatment punitive damages receive in the U.S. and the Italian legal discourse, with a special focus on the relationship between this tort law remedy and the public/private distinction. The significance of this analysis transcends Italy and the U.S.: controversial judicial decisions and intense academic discussions concerning punitive damages are detectable both in the U.S. and across Europe. Everywhere, punitive damages raise issues concerning essential aspects of legal systems, such as tort law’s function(s), the difference between tort law and criminal law, and the relationship between public law and private law. The comparative analysis I propose in this paper unfolds as follows. In Part II, I explore U.S. punitive damages law and the explanatory theories U.S. scholars propose in order to accommodate this controversial tort law remedy within domestic law. This inquiry shows that the battle over the ‘true’ justification of punitive damages is part of a larger clash relating to the public/private distinction because punitive damages have the effect of locating punishment and deterrence within private law, where, according to traditional thought, they should not be. Part of U.S. law conveys the message that courts and juries award punitive damages to further the public’s interest in punishing and deterring wrongdoers. On this account, punitive damages are a public sanction that contributes to minimizing the distinction between public and private law. Other legal materials offer a different picture by suggesting that punitive damages are awarded to promote the interest of private parties in punishing tortfeasors for their egregious wrongs. On this account, punitive damages are reconcilable with a vision of the law that keeps private law distinct from public law. These prima facie contradictory indications in the extant law are mirrored in the divergent conclusions that scholars have reached as to the theoretical foundations of punitive damages. Some jurists see punitive damages as instrumental to the fulfillment of public goals and put forward explanatory theories that tend to blur the line between public and private law. Others, focusing on different parts of extant law, justify punitive damages in a way that serves their commitment to preserving the public/private distinction. Basically, they argue that punitive damages are about private, as opposed to public, punishment. If so understood, punishment is consistent with the basic tenets of private law. Although both strands of legal scholarship recognize that U.S. punitive damages law exhibits a mélange of public and private law features, their conceptualizing efforts consider punitive damages as essentially public or essentially private. These legal thinkers fail to satisfactorily accommodate punitive damages within domestic law because they do not perceive that public and private elements coexist throughout tort law (and private law more generally). By resorting to the ‘nesting’ method, I show that the fact that punitive damages law is characterized by an internal coexistence of public and private as opposite and yet inextricably linked poles should not be read as an isolated and perhaps unfortunate instance in which public and private are under the same shelter. I use the findings of Part II to illuminate and critically assess the Italian rejection of punitive damages. In Part III, I argue that in Italy too tort law is a mixture of public and private elements. Against this background, I criticize the position of the Supreme Court and of scholars towards punitive damages. This inquiry demonstrates that the Court relies on the ideal of corrective justice up to the point of transforming it into a dogma that legal reasoning must obey with virtually no exception. This approach unveils adherence to an unhelpfully rigid distinction between public and private that can only generate detrimental effects, such as impeding desirable legal reforms. It further appears that Italian jurists, although disenchanted as to the absoluteness of the public/private dichotomy, still see the notion of punishment as a wall between public and private law, even though extant law shows that punitive and deterrent elements feature in Italian tort law. In brief, Italian legal actors fail to realize that, if punitive damages were adopted in Italy, they would only represent an additional element to the already conspicuous list of public elements within tort law. In Part IV, without any pretense of being exhaustive, I analyze three situations where the Italian system is remedially deficient and argue that punitive damages could be very useful in solving these long-standing problems: when the wrongdoer’s gain exceeds the loss suffered by the victim; when the wrongful action harms personality rights that are now protected by the criminal law; when a harm is caused to a number of people but it is likely that few, if any, of them will bring an action seeking damages.Publication Justice Kennedy and the Unfolding Doctrine of Corporate Religious Sincerity(2015) Churchill, SpencerThis article explores how Justice Kennedy’s Hobby Lobby concurrence synthesizes competing narratives about religious liberty and points toward a doctrinal test of corporate religious sincerity that is legally and politically justifiable.Publication Interlocking Directorates in the European Union: An Argument For Their Restriction(2016) Petersen, Vidir; Elhauge, Einer RichardThe EU Commission has recently undertaken a review of the EU Merger Regulation. In this process it has published a White Paper that proposes to extend the Regulation to cover situations in which firms acquire minority shareholding in their competitors. However, the White Paper is silent about the closely related phenomenon of interlocking directorates (interlocks), which occurs when the same person sits on the board of two firms. This issue has never been directly addressed by the European Union, perhaps because the theory of interlocks is underdeveloped in Europe. This paper provides comprehensive antitrust arguments for why the EU should restrict certain interlocking activity. The main argument is that the EU should prohibit horizontal interlocks (interlocks between competing firms) per se, as they raise serious antitrust concerns. The paper further argues that non-horizontal interlocks should be monitored, and it addresses certain important policy questions that the EU might face when designing the regulatory framework.Publication A Quantitative Approach to Determining Patentable Subject Matter(2015) Cui, Yuqing; Golden, John M.Although declared to be “only a threshold test”, what constitutes patentable subject matter is a difficult question that courts have been trying to answer for decades. This work develops a quantitative framework that addresses the question of patent-eligibility of a category of inventions from a fundamental level: whether the benefits outweigh the costs that arise from granting patents to the category of inventions. In evaluating each factor, the framework focuses on determining whether the goals of establishing the patent system in the first place are achieved by granting patents to these inventions. These goals include encouraging the creation, disclosure, and commercialization of the current and future inventions. The factors considered include the cost of research and development, cost of imitation, and the extent of taxing of future innovation. The results of this framework correlate well with the expected outcome of canonical cases and cases under debate. Finally, this paper proposes that the USPTO should be chosen as the institution administering the standard for patentable subject matter. This quantitative framework will hopefully change the current focus on construing statutory language and instead focus efforts on the big picture of achieving goals of having the patent system. It promises to bring in more consistency in future decisions by employing a quantitative analysis methodology which is already widely and successfully used in decision-making in many other fields.Publication The New American Debtors' Prisons(2015-08-04) Hampson, ChristopherDebtors’ prisons are back, in the form of imprisonment for nonpayment of criminal fines, fees, and costs. While the new debtors’ prisons are not historically or doctrinally continuous with the old, recent developments in criminal law suggest that some parts of them offend the same functional and moral principles that compelled the abolition of the old debtors’ prisons. Legal actors may therefore plausibly interpret the constitutional and statutory texts that abolished the old debtors’ prisons to constitute checks on the new — or a new abolitionist movement might deploy new constitutional texts. While the criminal law literature is starting to grapple with the question of debtors’ prisons, this piece engages with the metaphor head-on and asks how the old ban on debtors’ prisons should be reinterpreted for a new era of mass incarceration.Publication The 100-plus-Year Old Case For a Minimalist Criminal Law (Sketch of a General Theory of Substantive Criminal Law)(2015) Materni, MicheleCriminal law defines the system of government of which it is the political expression; thus having a normative theory of substantive criminal law is paramount. U.S. criminal law has developed in the absence of such overarching theory, and is now plagued by overcriminalization. This Article advances a model of a minimalist criminal law grounded on strong normative principles that are presented and defended not from the perspective of metaphysics or moral philosophy, but rather in a historical and comparative perspective, as a matter of political choice. Core among those principles is the idea that in a liberal democracy the criminal law should be seen as the extrema ratio, or option of the last resort. After laying out and defending the model, the Article deals with issues related to its implementation, advancing an argument for the constitutionalization of substantive criminal law. The Article argues that, on the basis of existing yet overlooked constitutional doctrine, criminal laws should be subject to at least strict scrutiny.Publication Determining Optimal Default Savings Rates For 401(K) Plans(2015) Martin, Luke CAutomatic enrolment in 401(k) plans has succeeded in increasing employee participation rates, but the impact on overall savings rates has been less than might have been expected, as some participants who would have previously opted into the plan at a higher savings rate choose to remain at the lower default savings rate under the automatic enrolment regime. Current policy encourages sponsors to offer relatively low default savings rates under these plans, which is likely decreasing average participant welfare. This paper establishes a framework for analyzing the impact of varying plan default and mandatory minimum savings rates on participant welfare and suggests that welfare would be increased with higher default savings rates and perhaps mandatory minimum savings rates.