Harvard Law School

Criminal 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.

Leaders 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.

As the Internet has exploded over the past fifteen years, recently reaching over a billion users, dozens of national governments from China to Saudi Arabia have tried to control the network by filtering out content objectionable to the countries for any of a number of reasons. A large variety of different projects have developed tools that can be used to circumvent this filtering, allowing people in filtered countries access to otherwise filtered content. In this report, we describe the mechanisms of filtering and circumvention and evaluate ten projects that develop tools that can be used to circumvent filtering: Anonymizer, Ultrareach, DynaWeb Freegate, Circumventor/CGIProxy, Psiphon, Tor, JAP, Coral, and Hamachi. We evaluated these tools in 2007 -- using both tests from within filtered countries and tests within a lab environment -- for their utility, usability, security, promotion, sustainability, and openness. We find that all of the tools use the same basic mechanisms of proxying and encryption but that they differ in their models of hosting proxies. Some tools use proxies that are centrally hosted, others use proxies that are peer hosted, and others use re-routing methods that use a combination of the two. We find that, in general, the tools work in the sense that they allow users to access pages that are otherwise blocked by filtering countries but that performance of the tools is generally poor and that many tools have significant, unreported security vulnerabilities.

The report was completed in 2007 and released to a group of private sponsors. Many of the findings of the report are now out of date, but we present them now, as is, because we think that the broad conclusions of the report about these tools remain valid and because we hope that other researchers will benefit from access to the methods used to test the tools.

Responses from developers of the tools in question are included in the report.

Circumvention tools allow users to bypass Internet filtering to access content otherwise blocked by governments, workplaces, schools, or even the blocked sites themselves. There are a number of different types of these tools: blocking-resistant tools, simple web proxies, virtual private network (VPN) services, and open HTTP/SOCKS proxies. But every type of circumvention tool provides the same basic functionality — proxying user connections to provide access to otherwise blocked sites. In the following report, we use a variety of methods to evaluate the usage of the first three of these four types of tools to test two hypotheses. First, even though much of the media attention on circumvention tools has been given to a handful of tools — notably Freegate, Ultrasurf, Tor, and Hotspot Shield — we find that these tools represent only a small portion of overall circumvention usage and that the attention paid to these tools has been disproportionate to their usage, especially when compared to the more widely used simple web proxies. Second, even when including the more widely-used simple web proxies, we find that overall usage of circumvention tools is still very small in proportion to the number of Internet users in countries with substantial national Internet filtering.

In a book chartered to demonstrate intellectual property in objects, what concrete thing can represent the Internet, a phenomenon that exists only as a well-elaborated idea? Perhaps the best physical representation of the genius of the Internet—and in particular, “Internet Protocol”—is found in an hourglass.

An Essay is presented on the judicial review of the proposed amendments of the U.S. Constitution and acts of the U.S. Congress. It further discusses the role of judges as experts in law which include addressing all constitutional complaints, interpretation of government policies. It also states that the proposed amendments can provide the Congress rights to enact statutes and discusses the need of developing institutional mechanism to improve capacity of the law experts.

This article considers absolute majority rules, which require the affirmative vote of a majority of all those eligible to vote in the institution. I compare absolute majority rules to simple majority rules under which only those present and voting are counted, and to simple supermajority rules. Under plausible conditions, absolute majority rules prove superior. Absolute majority rules insure majorities against strategic behaviour by minorities and combine supermajoritarian effects with majoritarian symbolism.

Many people, particularly in developing countries, die from curable or manageable diseases without access to medicine. After the TRIPS Agreement was brought into force, access to medicine in developing countries became worse and even deteriorated development. To solve the controversy in interpreting the TRIPS Agreement and the resulting public health crises, the Doha Declaration was adopted, recognizing the flexibilities of the TRIPS Agreement as effective and vital manners to promote access to medicines. However, there are still many difficulties encountered by developing countries in full implementation of the Doha Declaration. Therefore, this paper aims to reexamine and reaffirm access to medicine as an international human right, claiming it should be accommodated under the WTO framework, and also proposes several possible solutions to advance the accessibility of medicine.

Although published in 1970, The Costs of Accidents was written in the 1960s. In its boldness, its brilliance, and its progressive aspirations, the book is emblematic of the great society movement out of which it developed. Unimpressed with the legal and scholarly status quo, Calabresi set out to reinvent "accident law" in a manner that would best realize the set of values we care about most: minimizing accident costs within the limits set by justice. As confident as he was in his own framework, so was he critical of the value of the fault system which governed much of accident law then, and still does today. The bottom line is that the fault system is ill-suited to reducing primary accident costs. And, he argues, it is not even well suited to doing justice, so there is nothing to justify its ineptitude at cost reduction.

We respond to Calabresi's critique both within his framework of primary cost reduction, and more broadly, and we articulate both responses in terms of social norms of responsibility. As a means of primary cost reduction, we argue, the internalization of social norms of safe conduct is critical. These norms are sustained, in part, by their entrenchment within a legal system that links liability to duties and duties with norms of responsibility. Moreover, the creation of "loci of responsibility", the articulation of obligations, and the provision of private individuals with an avenue of redress against one another are valuable aspects of the fault system even apart from their connection with primary cost reduction. The Costs of Accidents, by looking only at cost reduction and justice, entirely overlooks a range of values enjoyed by the fault system. In the inspiring enthusiasm to improve human welfare across the board, thinkers of the 1960s risked rendering "responsibility" a casualty of the Great Society. In following those thinkers, we must understand notions of responsibility as a friend, not a foe, of social improvement.

This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group identity status. It proposes that, in principle, “accommodating every body” be achieved by extending Americans with Disabilities Act type reasonable accommodation to all work-capable members of the general population for whom accommodation is necessary to enable their ability to work. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity — people whose functional capacity does not comply with prevailing workforce design and organizational presumptions — and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because it is in everyone’s interest to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.

In Integrating Accommodation, Elizabeth Emens commendably scrutinizes what could be called the "positive externalities" of disability accommodation and sharpens the policy choices that their recognition should present. With useful analytic tools, Emens effectively outlines emerging choices that pertain to 1) how much value should be given to the benefits to others from the accommodations; 2) what relative priority should be given to others compared with the initial disabled claimant; and 3) what specific changes in regulatory regimes can and should be pursued to enhance the positive externalities without raising too many costs, whether in terms of costs or competing values. I look forward to the scholarly and policy de-bates that Integrating Accommodation will launch, as well as empirical research about costs and benefits that it should stimulate.

This Response explores how an important source of Emens' analysis also gives rise to a potential obstacle to its implementation. For here, as in her other work, Emens sheds light on disability law by opening for examination the assumption that the "person with a disability" is the only one affected by it or by responses to it. The power of her analysis in Integrating Accommodation depends on what may be an obstacle to acting upon it. Emens shows how the typical legal preoccupation with each individual as distinctive, alone, and unique produces pervasive inattention to relational, iterative, and collective features of social experience. Increased attention to this conceptual issue may be necessary if the kinds of considerations Emens advocates are to appeal to judges, legislators, administrators, employers, school officials, journalists, and even law professors.

Pharmacogenomic technologies promise to usher in an era of individualized medicine, but also pose challenges to a regulatory regime without experience dealing with the sorts of data produced by these techniques. Pharmacogenomics as a field encompasses both pharmacogenetic techniques, which tend to focus on polymorphisms in cytochromes and other proteins involved in drug metabolism, and pharmacogenomic techniques such as microarray technologies, which examine disease and drug interactions on the level of the entire genome. In 2003, the FDA produced a guidance recommending procedures for the submission of pharmacogenomic data at the IND or NDA stage. While pharmacogenomic information used in decision making; during trials is required, most pharmacogenomic data of an exploratory nature may be submitted voluntarily under a separate protocol. Though these procedures seem a reasonable means by which the FDA can open a dialogue with pharmaceutical manufacturers regarding the use of pharmacogenomic data, more action is necessary to develop the infrastructure necessary to develop the technology such that in may be incorporated in regulatory decisions with confidence.