Jacob E. Gersen

Professor of Law

Biography

Professor Jacob Gersen is Professor of Law at Harvard Law School, Affiliate Professor in the Department of Government, and the Founder and Director of the Food Law Lab at the Petrie-Flom Center.  The Food Law Lab supports academic research on the legal treatment of food in society. He is also the co-editor of Food Law & Policy, a new casebook to be published by Wolters Kluwer.  Professor Gersen is currently working on a book titled From Court To Table about the relationship between law and food. Before joining the Harvard faculty in 2011, he was Professor of Law at the University of Chicago.  He holds a Ph.D. in Political Science and a J.D. from the University of Chicago, and an A.B. in Public Policy from Brown University. His main areas of research and teaching are administrative law, food law, environmental law, torts, and constitutional theory.  In addition to publications in law reviews and political science journals, his work has appeared in the New York Times, Wall Street Journal, Time, Forbes, and his occasional blog CourtToTable.org.  

Areas of Interest

Jacob E. Gersen & Christopher Berry, Agency Design and Political Control, 126 Yale L.J. 1002 (2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Separation of Powers
Type: Article
Jacob E. Gersen & Jeannie Suk, The Sex Bureaucracy, 104 Calif. L. Rev. 881 (2016).
Categories:
Government & Politics
,
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Education Law
,
Administrative Law & Agencies
Type: Article
Abstract
We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment. Our purpose is to guide the reader through the landscape of the sex bureaucracy so that its development and workings can be known and debated.
Jacob Gersen & Jeannie Suk Gersen, Regulating Sex Bureaucratically, in Governance Feminism: A Handbook (Janet E. Halley, Prabha Kotiswaran, Rachel Rebouche & Hila Shamir eds., forthcoming 2018).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Gender & Sexuality
,
Administrative Law & Agencies
Type: Book
Jacob Gersen & Jeannie Suk Gersen, The College Sex Bureaucracy, Chron. Higher Educ., Jan. 13, 2017, Chron. Rev., at 1.
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Education Law
Type: Article
Jacob E. Gersen & Jeannie Suk, Timing of Consent, in The Timing of Lawmaking (Frank Fagan & Saul Levmore eds., forthcoming 2017).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
Type: Book
Jacob Gersen & Jeannie Suk Gersen, Administering Sex, 42 Admin. & Reg. L. News, no. 1, Fall 2016, at 18.
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Administrative Law & Agencies
Type: Article
Abstract
Sex and administrative law are not words that are traditionally uttered in the saine breath. Yet, recently, administrative law scholars and courts have increasingly focused on precisely this relationship. The past decade has seen a transformation of the way sex discrimination, sexual violence, sexual harassment, and just plain sex is legally regulated in the United States. Increasingly, adininistrative agencies are defining what sex is permissible, requiring educational institutions to adopt particular policies on sex, and specifying how sex that deviates from those norms is investigated and adjudicated. Today, sex is a domain of the federal bureaucracy. The question is what role traditional administrative law principles will play in the administration of sex.
Jacob E. Gersen & Christopher R. Berry, Agency Design and Political Control, 126 Yale L.J. 908 (2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
Type: Article
Abstract
Although historical debates about the separation of powers focus on Congress, the President, and the Judiciary, in modern times, the bureaucracy is the elephant in the room. In a world of seemingly inevitable widespread congressional delegation to administrative agencies, as well as the Supreme Court’s blessing of independent agencies, how exactly is the fourth branch of government to be controlled? The canonical answer in administrative law, constitutional law, and political science, is agency design. By carefully selecting structural features of administrative agencies and requiring the use of specific decision-making procedures for policymaking, the legislature and the executive can ensure responsive and accountable bureaucracy—or so the argument goes. As Congress continues to create ever more agencies using ever more variations in institutional structure, and as the Supreme Court continues to grapple with which features of administrative are constitutional, the stakes of these conceptual debates have risen steadily. Indeed, we are in the midst of something of an agency design renaissance—a time period of fundamental change with respect to the federal bureaucracy—deriving mainly, although not exclusively, from the emergence of new administrative forms. Unfortunately, there is virtually no empirical scholarship that demonstrates a link between agency design and political responsiveness or agency behavior. This is due not to a lack of attention but to a fundamental problem of research design and the institutional landscape of administrative agencies. To address this question, scholars have studied individual agencies to document political influence exerted by Congress or the president in a specific policy domain. Such studies of individual agencies are important, but also analytically incapable of identifying the role of agency design in political responsiveness for two reasons. First, the relevant institutional features almost never vary within a single agency. Second, most policy outputs—where one would look to see evidence of political control—are not readily comparable across agencies. As a consequence, there has been little quantitative scholarship that establishes a link between agency design and a similar agency output across agencies or over time. This Essay focuses on an activity common to and comparable across many agencies—the distribution of federal moneys—to answer one of the most basic questions for agency design. We show that a prominent structural feature of agency design— the extent of high-level personnel politicization—affects the degree of political responsiveness by agencies
Jacob E. Gersen, The Administrative Passive Voice, JOTWELL (Sept. 18, 2015) (reviewing Sharon Jacobs, The Administrative State’s Passive Virtues, 66 Admin. L. Rev. 565 (2014)).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Judges & Jurisprudence
Type: Article
Jacob E. Gersen & Benjamin Sachs, Protect Those Who Protect Our Food, N.Y. Times, Nov. 13, 2014, at A33.
Categories:
Labor & Employment
,
Health Care
Sub-Categories:
Food & Drug Law
,
Employment Practice
Type: News
Jacob E. Gersen, Administrative Law Goes to Wall Street: The New Administrative Process, 65 Admin. L. Rev. 689 (2013).
Categories:
Government & Politics
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Financial Reform
,
Administrative Law & Agencies
,
Separation of Powers
Type: Article
Abstract
An essay is presented on U.S. administrative law, financial services industry regulations, and the U.S. Financial Stability Oversight Committee as of June 2013. Other topics include administrative agency independence, the U.S. Consumer Financial Protection Bureau, and legal remedies in America. The U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act is mentioned, along with agency powers and James Landis' book "The Administrative Process."
Richard A. Epstein & Jacob E. Gersen, Understanding Education in the United States: Its Legal and Social Implications, 79 U. Chi. L. Rev. 467 (2012).
Categories:
Family Law
Sub-Categories:
Education Law
Type: Article
Abstract
Introduction to Symposium: Understanding Education in the United States.
Christopher R. Berry & Jacob E. Gersen, Election Timing and Public Policy, 6 Q.J. Pol. Sci. 103 (2011).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Elections & Voting
,
State & Local Government
Type: Article
Abstract
There are nearly half a million elected officials in American local governments, and the timing of local elections varies enormously even within the same state. Some local elections are held simultaneously with major federal and state races, while others are held at times when no higher level elections coincide. We analyze the effect of election timing by exploiting a 1980s change in the California Election Code, which allowed school districts to change their elections from off-cycle to on-cycle. Because we are able to observe very large within-district changes in voter turnout resulting from changes in election timing, we are able to isolate the effect of turnout on policy outcomes, including teacher salaries and student achievement tests. Our analysis demonstrates that while election timing produces dramatic changes in voter turnout, resulting changes in public policy are modest in size and not robust statistically.
Jacob Gersen, Designing Agencies, in Research Handbook on Public Choice and Public Law 333 (Daniel A. Farber & Anne Joseph O'Connell eds., 2010).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Book
Abstract
Public choice theory sheds light on many aspects of legislation, regulation, and constitutional law and is critical to a sophisticated understanding of public policy. The editors of this landmark addition to the law and economics literature have organized the Handbook into four main areas of inquiry: foundations, constitutional law and democracy, administrative design and action, and specific statutory schemes. The original contributions, authored by top scholars in the field, provide helpful introductions to important topics in public choice and public law while also exploring the institutional complexity of American democracy.
Christopher R. Berry & Jacob E. Gersen, The Timing of Elections, 77 U. Chi. L. Rev. 37 (2010).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
State & Local Government
,
Elections & Voting
Type: Article
Abstract
There are nearly half a million elected officials in American local governments, and the timing of their elections varies enormously both across states and even within the same state. Some local elections are held simultaneously with major federal and state races, while others are held at times when no higher level elections coincide. This Article argues that the timing of local elections drives turnout and, ultimately, substantive policymaking. When local elections do not coincide with important federal or state contests, the marginal cost to voters of participating rises, and consequently only those voters with the greatest stake in the electoral outcome turn out, a phenomenon we label “selective participation.” Selective participation is especially pronounced in local special purpose elections, such as those for school and special districts, where single-issue interest groups are especially influential. When there is selective participation in a low turnout election, policy outcomes will be more favorable to special interests than they would be if the same government were elected in a high turnout election. To explore these ideas empirically, we examine a natural experiment created by a 1980s change in the California Election Code, which gave school boards the option of changing their elections from off-cycle to on-cycle. Against this backdrop, we consider alternative legal regimes for regulating the timing of local government elections.
Jacob E. Gersen, Unbundled Powers, 96 Va. L. Rev. 301 (2010).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Elections & Voting
,
Separation of Powers
,
Government Accountability
,
Congress & Legislation
Type: Article
Christopher R. Berry & Jacob E. Gersen, Fiscal Consequences of Electoral Institutions, 52 J. L. & Econ. 469 (2009).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Empirical Legal Studies
,
State & Local Government
,
Elections & Voting
,
Government Accountability
Type: Article
Abstract
There are more than 500,000 elected local government officials in the United States. The most electorally dense county has more than 20 times the average number of elected officials per capita. This paper offers the first systematic investigation of the link between electoral density and fiscal outcomes. Electoral density presents a tradeoff between accountability and monitoring costs. Increasing the number of specialized elected offices promotes issue unbundling, reducing slack between citizen preferences and government policy; but the costs of monitoring a larger number of officials may offset these benefits, producing greater latitude for politicians to pursue their own goals at the expense of citizen interests. We predict diminishing returns to electoral density and a ‐shaped relationship between the number of elected local officials and government fidelity to citizen preferences. We find that public sector size decreases with electoral density up to a point, beyond which budgets grow as more officials are added.
Jacob E. Gersen & Anne Joseph O'Connell, Hiding in Plain Sight? Timing and Transparency in the Administrative State, 76 U. Chi. L. Rev. 1157 (2009).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Administrative Law & Agencies
,
Government Accountability
Type: Article
Abstract
Anecdotal evidence of agencies burying bad news is rife in law and politics. The bureaucracy regularly is accused of announcing controversial policies on holidays and weekends when public attention is elsewhere. We show that this conventional wisdom is wrong, or at least significantly incomplete. The conventional wisdom is riddled with theoretical holes, and there is little systematic empirical evidence to support it. After critiquing the conventional account of agencies hiding bad news, we articulate and defend a revised theory of strategic timing in administrative law. We argue that timing decisions rarely affect the visibility of decisions but can drive up the costs of monitoring and responding for interest groups and legislative coalitions. Agency discretion to choose when to announce policy decisions can even allow agencies to influence which interest groups monitor the regulatory process and therefore whose preferences must be taken into account. We evaluate both the conventional wisdom and our revised theory using twenty-five years of empirical evidence. We then develop the implications for administrative law doctrine and institutional design of the bureaucracy.
Jacob E. Gersen & Eric Posner, Soft Law: Lessons from Congressional Practice, 61 Stan. L. Rev. 573 (2008).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Statutory Interpretation
Type: Article
Abstract
Soft law consists of rules issued by lawmaking bodies that do not comply with procedural formalities necessary to give the rules legal status yet nonetheless influence the behavior of other lawmaking bodies and of the public. Soft law has been much discussed in the literatures on international law, constitutional law, and administrative law, yet congressional soft-lawmaking, such as the congressional resolution, has received little attention. Congressional soft law affects behavior by informing the public and political institutions about the intentions and policy preferences of Congress, which are informative about future hard law as well as of Congress's view of the world, and thus relevant to the decision making of various political agents as well as that of the public. Congressional soft law is important for a range of topics, including statutory interpretation and constitutional development. Other types of soft law--international, constitutional, and judicial--are compared.
Christopher R. Berry & & Jacob Gersen, The Unbundled Executive, 75 U. Chi. L. Rev. 1385 (2008).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Separation of Powers
,
Elections & Voting
Type: Article
Abstract
This Article articulates and analyzes the possibility of an unbundled executive. The unbundled executive is a plural executive regime in which discrete authority is taken from the President and given exclusively to a directly elected executive official, for example, a directly elected War Executive, Education Executive or Agriculture Executive. We show that a partially unbundled executive is likely to perform better than the completely bundled executive structure attendant in the single executive regime. That is, the standard arguments used to justify a single strong unitary executive in the United States: accountability, energy, uniformity, coordination, and so on, actually justify a specific type of plural executive, not the single executive structure favored in Article II. The thesis is both unusual and controversial in that there has been virtually no serious theoretical challenge to the single executive structure for more than a century.
Jacob E. Gersen & Anne Joseph O'Connell, Deadlines in Administrative Law, 156 U. Pa. L. Rev. 923 (2008).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Administrative Law & Agencies
Type: Article
Abstract
A cottage industry in administrative law studies the various mechanisms by which Congress, the President, and the courts exert control of administrative agencies. Restrictions on the appointment and removal of personnel, the specification of requisite procedures for agency decisionmaking, presidential prompt letters, ex ante review of proposed decisions by the Office of Management and Budget, legislative vetoes, and alterations in funding or jurisdiction all constitute potential mechanisms for the control of agency behavior. In this paper, we focus on a much more elemental mechanism of control that has surprisingly gone relatively unnoticed in the literature on administrative agencies: Congressional control of the timing of administrative action. The use of deadlines that require agency action to commence or complete by a specific date is extremely common in the modern administrative state, but even basic descriptive statistics about the frequency and nature of these mechanisms are lacking, much less a fully elaborated theory of regulatory deadlines. This paper offers the beginning of such a theory by providing a doctrinal, theoretical, and empirical analysis of deadlines in administrative law.
Jacob Gersen, Markets and Discrimination, 82 N.Y.U. L. Rev. 689 (2007).
Categories:
Labor & Employment
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Race & Ethnicity
,
Law & Economics
,
Employment Discrimination
Type: Article
Abstract
Despite decades of scholarship in law and economics, disagreement persists over the extent of employment discrimination in the United States, the correct explanation for such discrimination, and the normative implications of the evidence for law and policy. In part, this is because employment discrimination is an enormously complex phenomenon, and both its history and continued existence are closely linked to politics and ideology. However, some portion of this dispute can also be traced to the incomplete use of empirical evidence. Most economic theories of employment discrimination imply empirical relationships between discrimination and the market structure of particular industries and characteristics of their workforces. Yet empirical work has most typically focused on either specific industries or the economy as a whole, and little systematic evidence about market structure and patterns of actual employment discrimination claims exists. This Article compiles and analyzes an original data set comprised of industry-specific measures of employment discrimination claims, market conditions, and labor force characteristics. In so doing, this Article contributes to an emerging literature that tests the core theoretical positions in the law and economics of discrimination literature, which in turn promises to advance understanding of both the causes of and remedies for employment discrimination.
Jacob Gersen, Legislative Rules Revisited, 74 U. Chi. L. Rev. 1705 (2007).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
The distinction between legislative rules and nonlegislative rules is one of the most confusing in administrative law. Yet, it also critical for understanding not just when agencies must use procedural formality to issue policy judgments, but also the subsequent treatment of those judgments by courts. This Essay explores the legislative rule conundrum through the lens of Judge Richard A. Posner's opinion in Hoctor v United States Department of Agriculture. To describe the legislative rule debate is to conjure doctrinal phantoms, circular analytics, and fundamental disagreement even about correct vocabulary. Hoctor illustrates many of the fault lines in existing doctrine and suggests a novel if ultimately unsatisfying approach to legislative rules doctrine that turns on characterizing the form, content, and relationship between the new rule and existing law. This Essay suggests instead that much of the legislative rule doctrine might well be jettisoned, avoiding confusion and uncertainty about when agencies must use formal procedures to issue policy.
Jacob E. Gersen & Adrian Vermeule, Improving Deference: Chevron as a Voting Rule, 116 Yale L.J. F. 34 (2007).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Jacob E. Gersen, Substitution Strategies, 121 Harv. L. Rev. F. 21 (2007).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Responding to Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 Harv. L. Rev. 528 (2006).
Jacob E. Gersen, Temporary Legislation, 74 U. Chi. L. Rev. 247 (2007).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Congress & Legislation
Type: Article
Abstract
This paper provides a descriptive, positive, and normative analysis of temporary legislation, statutes containing a clause terminating legal authority on a specified future date. Notwithstanding the fact that a significant portion of the legislative docket consists of statutes that terminate automatically absent affirmative Congressional reauthorization in the future, the political dynamics of such statutes remain significantly under-theorized. Yet, temporary statutes have a long and storied pedigree both in the United States and elsewhere. After a historical overview, the paper outlines the major conceptual features of temporary statutes and demonstrates the implications for allocations of power and responsibility within and among the three branches of government, with a particular emphasis on the political economy of temporary legislation. Lastly, using a mixture of theoretical analysis and a case study, the paper argues for greater reliance on temporary statutes as a mechanism for responding to newly recognized risks.
Eric A. Posner & Jacob E. Gersen, Timing Rules and Legal Institutions, 121 Harv. L. Rev. 543 (2007).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Congress & Legislation
,
Administrative Law & Agencies
Type: Article
Abstract
Constitutional and legislative restrictions on the timing of legislation and regulation are ubiquitous, but these “timing rules” have received little attention in the legal literature. Yet the timing of a law can be just as important as its content. The timing of a law determines whether its benefits are created sooner or later. This determines how the costs and benefits are spread across time, and hence how they are distributed to the advantage or disadvantage of different private groups, citizens, and governmental officials. We argue that timing rules are, and should be, used to reduce agency problems within the legislature and between the legislature and the public, and to mitigate deliberative pathologies.
Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201.
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Ross E. Cheit & Jacob Gersen, When Businesses Sue Each Other: An empirical study of state court litigation, 25 Law & Soc. Inquiry 789 (2000).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Litigation & Settlement
,
Empirical Legal Studies
,
State & Local Government
,
Courts
Type: Article
Jacob Gersen, Markets and Corporate Conflict: A substitution-cost approach to business litigation, 24 Law & Soc. Inquiry 589 (1999).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Business Organizations
,
Litigation & Settlement
,
Law & Economics
Type: Article
Abstract
This paper examines the phenomenon of conflict escalaton in business relations. A theory of when conflict between firms will proceed from informal relationship-preserving norms to more formal and destructive end games involving litigation is developed and tested. The central theoretical claim is that substitution costs serve as an impediment against the escalation of conflict. Data on market concentration and dollar flows between aggregate markets in the economy are used to develop measures of substitution costs. Measures of substitution costs and trade figures are also used to describe power advantages in markets. The theory is tested through a series of regression models. The main findings are that (1) when substitution costs are high, parties are less likely to escalate conflict and (2) asymmetric market relations result in less conflict escalation than symmetric ones. Empirical analysis indicates that substitution costs are related in predictable and meaningful ways to conflict escalation and business litigation.

Education History

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