Todd D. Rakoff

Byrne Professor of Administrative Law

Griswold 411

617-495-4634

Assistant: Maureen Worth / 617-496-2430

Biography

Todd Rakoff graduated from Harvard Law School in 1975, and joined the faculty in 1979 after clerking for Hon. Henry Friendly and practicing with Foley, Hoag and Eliot in Boston. He teaches contracts and administrative law, has been Dean of the J.D. Program, and is presently the Byrne Professor of Administrative Law. Since the mid-1980s he has been one of the editors of Gellhorn and Byse’s Administrative Law, a leading book in the field.

Professor Rakoff has been actively involved in many of HLS’s educational experiments and reforms of the last quarter century, including the experimental integrated curriculum of the 1980s and the move to smaller first year sections in the late 1990s. In the last several years, he and Professor Joseph Singer have created and led the School’s Problem Solving Workshop, an experiential course that is now a required part of the first year curriculum. He has also organized programs for teachers around the country, through the Association of American Law Schools, and internationally, through the parallel international association.

Areas of Interest

David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265 (2013).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Separation of Powers
Type: Article
Abstract
Congressional delegation of broad lawmaking power to administrative agencies has defined the modern regulatory state. But a new form of this foundational practice is being implemented with increasing frequency: the delegation to agencies of the power to waive requirements that Congress itself has passed. It appears, among other places, as a central feature of two signature statutes of the last decade, the No Child Left Behind Act and the Patient Protection and Affordable Care Act. We call this delegation of the power to unmake major statutory provisions “big waiver.” This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime—even one it knows may be waived—big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies’ subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.
Peter L. Strauss, Todd D. Rakoff, Cynthia R. Farina & Gillian E. Metzger, Gellhorn and Byse's Administrative Law: Cases and Comments (Found. Press 11th ed. 2011).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Book
Abstract
The 11th edition of this comprehensive casebook continues the tradition of offering instructors a rich theoretical, historical and political context for the cases. At the same time, recognizing changing pedagogical demand, the book offers a leaner presentation of many topics and more cues for helping students navigate the book.
Todd D. Rakoff, A Time For Every Purpose: Law and the Balance of Life (Harvard Univ. Press 2002).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Administrative Law & Agencies
Type: Book
Abstract
More and more, however, society, and especially the workplace, have come to see time simply as a quantity whose value must be maximized. As lawmakers struggle to deal with accelerating market demands, the average citizen's ability to organize his or her time to accommodate all of life's activities is diminishing. Meanwhile, it is increasingly hard to differentiate weekdays from weekends, and ordinary days from holiday. The law of time, Rakoff argues, may need refashioning to meet modern circumstances, but we continue to need a stable legal structure of time if we are to attain the ancient goal of a balanced life: " A Time for Every Purpose.
Todd D. Rakoff, The Five Justices of Contract Law, 2016 Wis. L. Rev. 733 (2016).
Categories:
Banking & Finance
Sub-Categories:
Contracts
Type: Article
Abstract
The pursuit of justice is a large part of the law of contracts, but in recent years most of the discussion about contract law has emphasized other values, such as freedom or economic efficiency. "Justice"-as used, for example, in the Restatement (Second) of Contracts-has become a flabby word denoting unexamined intuitions or random contingencies. This article tries to restore justice to its proper place in contract law by providing an analytic framework for discussing its role. It sets out five principles of justice embedded in contract law: (1) Justice as the equal exchange; (2) Justice as the honest wager; (3) Justice as the term that fits; (4) Justice as the deserved return; and (5) Justice as the advantage not to be taken. Each of these "Justices" responds to a distinct social sense of justice, and each helps explain a considerable swath of the actual law of contracts. But they are not always mutually consistent, so together they define a realm of debate rather than of demonstrable outcomes. The concluding section of the article looks at the mechanisms by which that debate works to produce results, and how it fits together with other forces also shaping the law.
Todd D. Rakoff, Peter L. Strauss: An Introduction, 115 Colum. L. Rev. 1679 (2015).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Todd D. Rakoff, Shaw’s Supermarkets, Inc. v. National Labor Relations Board – A First Circuit Opinion, 128 Harv. L. Rev. 477 (2014).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Biography & Tribute
Type: Article
Todd D. Rakoff, Essay, Statutory Interpretation as a Multifarious Enterprise, 104 Nw. Univ. L. Rev. 1559 (2010).
Categories:
Government & Politics
Sub-Categories:
Statutory Interpretation
Type: Article
Todd D. Rakoff, In Memoriam: Clark Byse, 121 Harv. L. Rev. 460 (2007).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Todd D. Rakoff, Good Faith in Contract Performance: Market Street Associates Ltd. Partnership v. Frey, 120 Harv. L. Rev. 1187 (2007).
Categories:
Banking & Finance
,
Legal Profession
Sub-Categories:
Contracts
,
Legal Education
Type: Article
Todd D. Rakoff, Commentary, The Law and Sociology of Boilerplate, 104 Mich. L. Rev. 1235 (2006).
Categories:
Banking & Finance
,
Consumer Finance
Sub-Categories:
Contracts
,
Consumer Contracts
Type: Article
Todd D. Rakoff, Is "Freedom From Contract" Necessarily a Libertarian Freedom?, 2004 Wis. Law Rev. 477 (2004).
Categories:
Banking & Finance
,
Consumer Finance
,
Legal Profession
Sub-Categories:
Contracts
,
Consumer Contracts
,
Legal & Political Theory
Type: Article
Todd D. Rakoff, Symposium: Law, Knowledge, and the Academy - Introduction, 115 Harv. L. Rev. 1278 (2002).
Categories:
Legal Profession
Sub-Categories:
Legal Research & Writing
,
Legal & Political Theory
,
Legal Scholarship
Type: Article
Todd D. Rakoff, Enforcement of Employment Contracts and the Anti-Slavery Norm, in Human Rights in Private Law 283 (Daniel Friedmann & Daphne Barak-Erez eds., Hart Pub. 2001).
Categories:
Labor & Employment
,
Banking & Finance
,
Civil Practice & Procedure
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Contracts
,
Private Law
,
Civil Rights
,
Human Rights Law
,
Employment Practice
Type: Book
Abstract
In this book the expansion of human right legislation in national and international law is examined from theoretical and comparative perspectives.
Todd D. Rakoff, The Choice Between Formal and Informal Modes of Administrative Regulation, 52 Admin. L. Rev. 159 (2000).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Todd D. Rakoff, Judicial Review and Administrative Action, in Common Law, Common Values, Common Rights: Essays on Our Common Heritage by Distinguished British and American Authors (Am. Bar Ass'n ed., 2000).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Judges & Jurisprudence
Type: Book
Peter L. Strauss, Todd D. Rakoff & Cynthia R. Farina, 1999 Supplement to Gellhorn and Byse's Administrative Law: Cases and Comments (Found. Press 9th ed. 1999).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Legal Education
Type: Book
Todd D. Rakoff, Contemporary Challenges Facing the First Amendment's Religion Clauses, Introduction, 43 N.Y.L. Sch. L. Rev. 101 (1999).
Categories:
Legal Profession
,
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Religion
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Todd D. Rakoff, The Tasks of Legal Education, Law Times of Korea, May 18, 1998.
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: News
Abram Chayes & Todd D. Rakoff, The Legal Process School: Introduction, The Bridge (1998).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Legal & Political Theory
Type: Other
Abstract
When the person-in-the-street thinks of "The Law," she (or he) tends to think of a body of standards of conduct - rules or authoritative precedents - that prohibit this and permit that. When a lawyer thinks of "The Law," however, she (or he) thinks not only of a body of standards of conduct but also of a collection of processes through which those standards are created and applied. These processes are defined in the same way as the rules governing conduct: by legislation, by rule makers acting under delegated authority, by court decisions, and sometimes by constitutions. Some of these stipulated processes consist of details - which court, among all those that have jurisdiction, is the one with proper venue for this particular case? - and some of them embrace very large issues - do the courts as a whole have power over this particular subject, or is it a matter that belongs instead to the legislature?
Todd D. Rakoff, The Process of Characterization, The Bridge (1997).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
Abstract
What do lawyers do? In terms of process, they negotiate, litigate, advise clients, and so forth. In terms of product, they draft contracts, write briefs, compose letters, and so on. But behind both process and product, what lawyers most fundamentally do, is think.
Todd D. Rakoff, Too Many Theories, 94 Mich. L. Rev. 1799 (1996) (reviewing Michael J. Trebilcock, The Limits of Freedom of Contract (1993)).
Categories:
Banking & Finance
,
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Contracts
,
Law & Economics
,
Legal & Political Theory
Type: Article
Todd D. Rakoff, Implied Terms: Of 'Default Rules' and 'Situation-Sense', in Good Faith and Fault in Contract Law 191 (Jack Beatson & Daniel Friedmann eds., Oxford Univ. Press 1995).
Categories:
Banking & Finance
,
Consumer Finance
,
Government & Politics
Sub-Categories:
Contracts
,
Consumer Contracts
,
Judges & Jurisprudence
Type: Book
Abstract
This collection of essays brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. The work discusses the requirement of good faith and its role in the formation of contracts, contractual obligations, and Breach of Contract and Remedial Issues.
Todd D. Rakoff, Curricular Entrepreneurs and the Teaching Program, Harv. L. Bull., Summer 1994, at 3.
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
Todd D. Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 Harv. C.R.-C.L. L. Rev. 63 (1994).
Categories:
Banking & Finance
,
Consumer Finance
,
Labor & Employment
,
Constitutional Law
Sub-Categories:
Contracts
,
Consumer Contracts
,
Fourteenth Amendment
,
Employment Practice
Type: Article
Todd D. Rakoff, Social Structure, Legal Structure, and Default Rules: A Comment, 3 S. Cal. Interdisc. L.J. 19 (1993).
Categories:
Banking & Finance
,
Consumer Finance
Sub-Categories:
Contracts
,
Consumer Contracts
Type: Article
Todd D. Rakoff, The Shape of the Law in the American Administrative State, 11 Tel-Aviv U. Stud. L. 9 (1992).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
Type: Article
Todd D. Rakoff, Fuller and Perdue's The Reliance Interest As a Work of Legal Scholarship, 1991 Wis. L. Rev. 203 (1991).
Categories:
Banking & Finance
,
Legal Profession
Sub-Categories:
Contracts
,
Legal & Political Theory
,
Legal Education
,
Legal Scholarship
Type: Article
Todd D. Rakoff, Book Review, 76 Va. L. Rev. 1287 (1990) (reviewing Donald Black, Sociological Justice (1989)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Article
Todd D. Rakoff, The Harvard First-Year Experiment 39 J. Legal Educ. 491 (1989).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Todd D. Rakoff, Brock v. Roadway Express, Inc., and the New Law of Regulatory Due Process, 1987 Sup. Ct. Rev. 157 (1988).
Categories:
Government & Politics
,
Labor & Employment
,
Constitutional Law
Sub-Categories:
Fifth Amendment
,
Administrative Law & Agencies
,
Employment Practice
Type: Article
Todd D. Rakoff, In Memoriam, Henry J. Friendly, 99 Harv. L. Rev. 1725 (1986).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Todd D. Rakoff, A Great Experiment, 36 Harv. L. Bull. 22 (1985).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv. L. Rev. 1173 (1983).
Categories:
Banking & Finance
,
Consumer Finance
Sub-Categories:
Contracts
,
Consumer Contracts
Type: Article

Current Courses

Course Catalog View

Griswold 411

617-495-4634

Assistant: Maureen Worth / 617-496-2430