Main Volumes – Page 2 – Harvard National Security Journal

Volume 11, Issue 1

January 7, 2020

A Comparative Study of Domestic Laws Constraining Private Sector Active Defense Measures in Cyberspace by Brian Corcoran The U.S. private sector is vulnerable in cyberspace. In response, an increasingly mainstream national security argument calls for amending U.S. law to permit private sector actors to employ so-called “active defense” measures—a group of loosely-defined technical measures that fall on a spectrum between passive firewalls (clearly legal) and offensive counterattacks (clearly illegal). Proponents argue that such measures could slow, identify, or even deter offenders in cyberspace; provide unclassified evidence for use in civil cases; or support a government response. Critics warn of careless […]

Main Volumes

Volume 10, Issue 2

June 6, 2019

Issue 2 Totemic Functionalism in Foreign Affairs Law by Elad D. Gil In many Western democracies, and particularly in the United States, foreign affairs are primarily an executive enterprise. Owing to the executive’s relative institutional advantages over the legislature and the judiciary—in expertise, knowledge, speed, unitary structure, and democratic accountability—courts afford the President considerable deference in cases relating to foreign affairs. But there is something deeply flawed in the way judges apply functionalist reasoning in this context. Instead of using functionalism for what it is—a contextual and adaptable paradigm for ascertaining whether and how much deference is desired in order