Harvard Law Review Harvard Law Review Harvard Law Review

Recent Publications — April 2016

Natural Law in Court: A History of Legal Theory in Practice. By R. H. Helmholz. Cambridge, Mass.: Harvard University Press. 2015. Pp. xxii, 260. $45.00. Natural law is often conceived of in opposition to positive law. In this new book, however, Professor R. H. Helmholz takes a new tack. Examining legal practice, Helmholz argues that our legal forebears had a more familial conception of the relationship: natural law was born of God himself, and it in turn gave rise to positive law, which developed to put theories of natural law into effect. Helmholz contends that this relationship becomes apparent when one considers the systems of law that developed in three geographical areas — continental Europe, England, and the United States. Helmholz considers each region in turn, chronicling the way that the legal education and case law of each locality shaped the understanding and utilization of natural law theory and thereby the development of positive law. Ultimately, this book makes a persuasive argument for the utilization of natural law theory in legal practice. Acknowledging that natural law did not have the historical influence that its greatest proponents would contend, Helmholz argues still that its significance ought not be underestimated. The real-though-limited success that natural law has had “in determining the outcome of contested cases” compels its continued consideration (p. 12).

FDA in the Twenty-First Century: The Challenges of Regulating Drugs and New Technologies. Edited by Holly Fernandez Lynch & I. Glenn Cohen. New York, N.Y.: Columbia University Press. 2015. Pp. xii, 551. $65.00. Since its inception in 1906, the FDA has confronted a century of new technologies, medical advances, and novel challenges. According to Holly Fernandez Lynch and Professor I. Glenn Cohen, editors of FDA in the Twenty-First Century, the “FDA has done a tremendous job of keeping up with the times” (p. 3), but must continue to innovate and adapt to today’s world. This collection of essays by leading scholars and public health experts offers diverse perspectives on the FDA’s role in tackling present and future issues. The essays explore a wide range of topics, including the globalization of drug supply chains, consumer empowerment, transparency in clinical-trials data, regulation of genomic information, and potential First Amendment issues in prohibiting off-label promotion of drugs. The authors’ views are often in conflict, capturing a sense of the lively debates surrounding the future of the agency. This informative book is a valuable read for lawyers, policymakers, and anyone interested in public health.

Christian Human Rights. By Samuel Moyn. Philadelphia, Pa.: University of Pennsylvania Press. 2015. Pp. 246. $24.95. Contemporary human rights, now commonly regarded as inherent, inalienable, and perhaps biblically derived, may owe more to pre– and post–World War II papal leadership than historians have heretofore recognized. Professor Samuel Moyn identifies the first constitutional codification of individual human dignity in the 1937 Irish Constitution. Moyn then details the Vatican’s embrace and expansion of the language of dignity as a means to “keep communist or even liberal politics at bay and to make Christian moral norms central” (p. 54), in opposition to the threat of secularism rather than, as some contend today, as a progressive move to defend individual freedoms. Moyn describes the oft-forgotten focus on personalism, an indeterminate communitarian midpoint between individualism and communism, in the human rights movement of the 1940s. He asserts that “‘[h]uman rights’ came to figure because . . . Christians learned that the cultivation of moral constraints depended on keeping the spiritual communities that offered their vision of ethical life a home partly free from the state” (p. 11). Finally, Moyn provocatively explores modern religious discrimination against European Muslims to expose the apparent failure of human rights to transcend this Christian-centered origin story.

The Future of Healthcare Reform in the United States. Edited by Anup Malani & Michael H. Schill. Chicago, Ill.: The University of Chicago Press. 2015. Pp. vi, 358. $60.00. In this carefully crafted collection of articles assembled by Professor Anup Malani and President Michael H. Schill, twenty authors in fourteen pieces consider the impact of the Patient Protection and Affordable Care Act (“ACA”). Plenty has been written on the contentious politics surrounding what is “perhaps the most important piece of social welfare legislation since the New Deal” (p. 1), but in this book the authors consider instead the lasting legal and policy implications for a wide range of issues. The collection displays an “interdisciplinary” (p. 2) account of the law and its effects. Several chapters present a range of perspectives that assess the long-term legal consequences of both the law and NFIB v. Sebelius, which upheld it. Other chapters evaluate the law’s true impact on the public fisc, consider its effect on healthcare provision and innovation, and appraise the viability of the ACA exchanges. Although further legal challenges over the terms of the ACA’s implementation are inevitable, this book recognizes that the law is here to stay and presents nuanced views of what that ultimately means.