Boston University Law Review, Volume 91: Issue 5 (October 2011)


Volume 91 Number 5 – October 2011


Temporary Insanity: The Strange Life and Times of the Perfect Defense 
Russell D. Covey
Page 1597

Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts
Courtney G. Joslin
Page 1669

Federalism, Lochner, and the Individual Mandate
Peter J. Smith
Page 1723


Extinguishing Dried-Up Public Trust Rights 
William J. Bussiere
Page 1749

The Incorporation of Democracy: Justice Kennedy’s Philosophy of Political Participation in Citizens United
Jarrod L. Schaeffer
Page 1783


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3 Responses

  1. Joe says:

    The “Lochner” reference is getting a bit old (John Paul Stevens used it in his speech on Kelo / see USSC website) — though I’m not totally on David Bernstein’s side — but the health law article is worth reading.

  2. Joe says:

    Stevens in fact split his Lochner comparison three ways, matching O’Connor in Kelo with Harlan, the Kelo majority with Holmes and Thomas with the Lochner majority. Nice nuance.

  3. Shag from Brookline says:

    I agree with Joe that Peter J. Smith’s article is well worth reading. Smith demonstrates that federalism does not appear to be the issue with the ACA’s mandate challenge. Rather, in Part III, Smith shows that it is libertarianism that seems to be the driving force, where he ties in Lochner at the state level, in the challenge on the individual mandate at the federal level. The article is a quick read if the footnotes are not dwelled upon.