Faculty Bibliography
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An ideal accompaniment to any civil procedure casebook, including the authors’ own Civil Procedure: Doctrine, Practice, and Context, Fifth Edition, the 2016-2017 statutory supplement presents the current Federal Rules of Civil Procedure (FRCP). Useful cross-references to Advisory Committee Notes, Restatement sections, and Transnational Rules have been integrated into the FRCP to help students explore the larger context of each Rule. Complete features include: The current Federal Rules of Civil Procedure and proposed amendments; The U.S. Constitution and U.S. Code provisions current through May 1, 2016; Excerpts from the Restatement (Second) of Judgments; Excerpts from the American Law Institute/UNIDROIT Rules of Transnational Civil Procedure; and Examples of state long-arm and venue statutes.
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Are Americans making under $50,000 a year compelled to navigate the legal system on their own, or do they simply give up because they cannot afford lawyers? We know anecdotally that Americans of median or lower income generally do without legal representation or resort to a sector of the legal profession that - because of the sheer volume of claims, inadequate training, and other causes - provides deficient representation and advice. This book poses the question: can we - at the current level of resources, both public and private - better address the legal needs of all Americans? Leading judges, researchers, and activists discuss the role of technology, pro bono services, bar association resources, affordable solo and small firm fees, public service internships, and law student and nonlawyer representation.
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From the 5th Koningsberger Lecture series, Utrecht University (2014): I will explore several ways people can be upstanders; reasons why people are not upstanders; and potential collective efforts that could make it easier or more likely that people become upstanders. I begin though with a story of stories — five stories actually — to make upstanding vivid, to honor courageous individuals and identify challenges for the rest of us, and to raise a question: does honoring upstanders and telling their stories increase the chances that others will follow in their paths, or suggest that only exceptional individuals with unusual qualities are upstanders? What would it take for the rest of us to stand up?
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Supreme Court justices have long relied on law clerks to help process the work of the Court. Yet few outside the Court are privy to the behind-the-scenes bonds that form between justices and their clerks. In Of Courtiers and Kings, Todd C. Peppers and Clare Cushman offer an intimate new look at the personal and professional relationships of law clerks with their justices. Going beyond the book’s widely acclaimed predecessor, I n Chambers, the vignettes collected here range from reflections on how serving as clerks at the Supreme Court impacted the careers of such justices as Stephen Breyer, Elena Kagan, William Rehnquist, John G. Roberts Jr., and John Paul Stevens to personal recollections written by parents and children who have both served as Supreme Court clerks. While individual essays often focus on a single justice and his or her corps of clerks—including how that justice selected and utilized the clerks—taken as a whole the volume provides a macro-level view of the evolution of the role of the Supreme Court law clerk. Drawing on a rich repository of such anecdotes, insights, and experience, the volume relates in a clear and accessible style how the clerking function has changed over time and what it is like for law clerks to be witnesses to history. Offering a rare glimpse into a normally unseen world, Of Courtiers and Kings reveals the Court’s increasing reliance on law clerks and raises important questions about the selection, utilization, and influence of law clerks.
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Should law encourage people to forgive one another—and should law be used to forgive people for wrongdoing? Or is it a mistake to promote greater connections between law, with its need for predictability, and forgiveness, with its dependence on emotions and moral judgments? Before exploring these questions, I will discuss what I mean by forgiveness in Part I. Then, in Part II, I will turn to the possible roles law can play in relation to forgiveness in the contexts of criminal law—international and domestic—and debt, both of sovereign nations and consumers. When I first turned to some of these issues, South Africa’s Truth and Reconciliation Commission (TRC) was just getting started. In the twenty years since, and in no small measure because of the TRC effort, forgiveness has attracted global attention and debate in law, psychology, and politics well beyond its traditional home in religious and philosophical discussions. So I will also consider in Part II what we have learned from the TRC about the promises and limitations of joining forgiveness and law—both for law and for forgiveness. In Part III, I will raise some questions about the inquiry myself. Finally, in Part IV, I will provide closing thoughts and suggestions for incorporating forgiveness into existing domestic and international legal frameworks. Finding room for forgiveness through law or alongside law can draw upon a non-depletable resource, thereby enhancing human relationships without forgoing the accountability so important to social order.
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Martha Minow, Welcome to America: Get Used to Disagreements!, in Washington's Rebuke to Bigotry: Reflections on Our First President's Famous 1790 Letter to the Hebrew Congregation In Newport, Rhode Island (Facing History and Ourselves, Dan Eshet & Michael Feldberg eds., 2015).
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“There is a war against religion!” “Exemptions on religious groups undermine civil rights!” “Pluralism and tolerance are in jeopardy!” “Freedom for some ends up trumping freedom and equality for others!” Whether any of these individual statements is true, the rising claims of catastrophe by opposing groups across the United States prompted an intense and engaging conference, “Religious Accommodation in the Age of Civil Rights,” held at Harvard Law School on April 3–5, 2014, sponsored by Harvard Law School, the Williams Institute at the University of California in Los Angeles, the American Civil Liberties Union, and the University of Southern California Center for Law, History and Culture. Engaging and intense discussions among forty panelists and over 120 participants generated the articles presented in this issue as well as others filling special issues of two other journals. The focus on accommodations for religion reflects both increasing challenges to traditional denials of rights and protections for lesbian, gay, bisexual, and transgender individuals and religious objections to contraception and abortion. Clashes increase with political and legal advances in legal treatment of marriage equality for same-sex couples and expanding recognition of legal claims of businesses for freedom of speech and religion. Ongoing disagreements over the scope of existing and potential federal, state, and local anti-discrimination laws, health insurance requirements, and other general rules trigger political and social debates but also produce legal questions requiring answers.
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"Over a century has passed since the United States Supreme Court decided a series of cases, known as the “Insular Cases,” that limited the applicability of constitutional rights in Puerto Rico and other overseas territories and allowed the United States to hold them indefinitely as subordinated possessions without the promise of representation or statehood. Essays in this volume, which originated in a Harvard Law School conference, reconsider the Insular Cases. Leading legal authorities examine the history and legacy of the cases, which are tinged with outdated notions of race and empire, and explore possible solutions for the dilemmas they created. Reconsidering the Insular Cases is particularly timely in light of the latest referendum in Puerto Rico expressing widespread dissatisfaction with its current form of governance, and litigation by American Samoans challenging their unequal citizenship status. This book gives voice to a neglected aspect of U.S. history and constitutional law and provides a rich context for rethinking notions of sovereignty, citizenship, race, and place, as well as the roles of law and politics in shaping them." -- Back cover.
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Written by practising judges and lawyers as well as leading academics, this book serves as a central reference point concerning the role of comparative law before the courts. A copy of Dean Minow's chapter also appears in Vol. 52 of the Harvard International Law Journal Online (August 27, 2010). http://www.harvardilj.org/wp-content/uploads/2010/09/HILJ-Online_52_Minow1.pdf
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The establishment of the International Criminal Court (ICC) gave rise to the first permanent Office of the Prosecutor (OTP), with independent powers of investigation and prosecution. Elected in 2003 for a nine-year term as the ICC’s first Prosecutor, Luis Moreno Ocampo established policies and practices for when and how to investigate, when to pursue prosecution, and how to obtain the cooperation of sovereign nations. He laid a foundation for the OTP’s involvement with the United Nations Security Council, state parties, nongovernmental organizations, victims, the accused, witnesses, and the media. This volume of essays presents the first sustained examination of this unique office and offers a rare look into international justice. The contributors, ranging from legal scholars to practitioners of international law, explore the spectrum of options available to the OTP, the particular choices Moreno Ocampo made, and issues ripe for consideration as his successor, Fatou B. Bensouda, assumes her duties. The beginning of Bensouda’s term thus offers the perfect opportunity to examine the first Prosecutor’s singular efforts to strengthen international justice, in all its facets.
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Martha Minow, Upstanders, Whistle-blowers, and Rescuers, 2014 Koningsberger Lecture, Faculty of Law, Utrecht Univ. (Dec. 15, 2014).
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Koningsberger Lecture, Faculty of Law, Utrecht University, Netherlands
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Righting Educational Wrongs brings together the work of scholars from the fields of disability studies in education and law to examine contemporary struggles around inclusion and access to education.
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It has been my pleasure to be a sounding board and advisor to many people who consider becoming law professors and yet it has not always been easy to introduce people considering their own research projects to reflect on how their ideas connect with the varieties of legal scholarship. One day I decided to write up a “field guide,” meant to be rather like the guides to birds that offer pictures and descriptions to assist the casual or serious birdwatcher. After sharing it and revising it, I have learned that this “guide” now travels underground and electronically, so I thought it time to give it an official publication, and the Journal’s editors kindly agreed. The explosion of interdisciplinary research in law contributes to the variety of legal scholarship. So does the contrast between “inside” and “outside” thinking in law schools where we try both to equip people for practice and effectiveness within existing institutions and for roles as critics, institutional reformers, and scholars who may explain and analyze in terms quite different from those in the minds of actors operating within existing legal systems. So here with an invitation for supplements, critiques, and revisions is my Archetypal Legal Scholarship: A Field Guide.
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Launched in 1964, the Harvard Journal on Legislation built on an already vibrant student practice providing research and drafting to support state and federal legislative initiatives in the United States. Dean Erwin Griswold commended this work and supported the creation of the Journal to offer the work in a form more permanent than mimeographed copies and to create a forum offering resources to all concerned with legislative drafting and legislative thought in any area. In the intervening fifty years, the Harvard Journal on Legislation has ably achieved these goals and more. Adapted from the source document.
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Do the United States and France, both post-industrial democracies, differ in their views and laws concerning discrimination? Marie Mercat-Bruns, a Franco-American scholar, examines the differences in how the two countries approach discrimination. Bringing together prominent legal scholars--including Robert Post, Linda Krieger, Martha Minow, Reva Siegel, Susan Sturm, Richard Ford, and others--Mercat-Bruns demonstrates how the two nations have adopted divergent strategies. The United States continues, with mixed success at "colorblind" policies, to deal with issues of diversity in university enrollment, class action sex-discrimination lawsuits, and rampant police violence against African American men and women. In France, the country has banned the full-face veil while making efforts to present itself as a secular republic. Young men and women whose parents and grandparents came from sub-Sahara and North Africa are stuck coping with a society that fails to take into account the barriers to employment and education they face. Discrimination at Work provides an incisive comparative analysis of how the nature of discrimination in both countries has changed, now often hidden, or steeped in deep unconscious bias. While it is rare for employers in both countries to openly discriminate, deep systemic discrimination exists, rooted in structural and environmental causes and the ways each state has dealt with difference in general. Invigorating and incisive, the book examines hot-button issues of sexual harassment, gender discrimination, and equality for LGBT individuals, delivering comparisons meant to further social equality and fundamental human rights across borders
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Global perspectives can contribute to our understandings of any one nation’s laws and decisions. In this light, America’s educational landmark, Brown v. Board of Education, matters not just for the United States but around the world. Inside the United States, a cottage industry of academic scholars studies the influence of Brown where the decision’s impact reaches well beyond racial desegregation of schools. The litigation has by now a well-known and complicated relationship to actual racial integration within American schools, as the case perhaps exacerbated tensions and slowed otherwise gradual reform, and perhaps at the same time galvanized the social movement enabling major legislative and social change—producing notable change in the racial composition of schools by the 1970s, and yet further backlash and shifts returning schools to considerable racial separation by 2004.
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Groundbreaking theoretical and legal approaches to resolving conflicts between gender equality and cultural practices
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"The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution . . . ." — Joseph Story (1833). That the Court was sharply divided was not a surprise. The contrasting briefs — including a record 136 from amici — laid out the dispute. Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, and another would entirely uphold the same law; the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world. The unexpected further, controlling opinion authored by Chief Justice Roberts was historic not only in its bottom line (upholding most of the law but under the federal taxing power, after finding no power under the Commerce Clause), but also in its staking out a third position, outside the two warring camps. Leaving to others speculative debate about the motivations and intentions of Chief Justice Roberts, this Comment argues that this third opinion transcended the polarized political debates surrounding the legal challenge to President Barack Obama’s signature domestic policy initiative through analytical convergence, not political compromise. Although pundits called it a compromise, something else was at work. Here, Chief Justice Roberts followed Justice Joseph Story’s view of “reasonable interpretation.” Seeing the decision as one of law, not just of politics, demonstrates the power of arguments and explanations rather than sheer outcomes or advantage. The reasons and interpretations exchanged in this case — not just the votes and the result — amplify the Supreme Court as a symbol of the rule of law. And, because it was a legal ruling, there will be repercussions for legal doctrines and for the actual scope of governmental powers for years to come. Or so I will argue here.
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The editors of the Harvard Law Review respectfully dedicate the February 2012 issue to Professor Frank I. Michelman.
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This chapter focuses on the social shift of economic risk to individuals and the need to overcome the barriers—psychological, cognitive, analytic, and ideological—to understanding the risk allocation. It begins with a historical overview of risks to human health, welfare, and well-being before explaining why it is difficult to see risk and its shift from government and businesses to individuals and families. It then looks at policy proposals to address these shifts, from income support to consumer credit reforms. The chapter concludes by arguing that democratic action toward addressing social policy challenges posed by these shifts is not possible in the absence of a greater sense of shared risks and shared responsibility.
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Constitution Day Lecture: Four years ago, the United States Supreme Court, in a case called Parents Involved in Community Schools v. Seattle School District No. 1, rejected as unconstitutional two school district plans that used race in student assignments in pursuit of racially integrated public schools. Ever since, school districts and communities seeking to promote diversity within public schools have been treading treacherous water. The Court rejected two plans but did not clearly bar race-conscious means in all circumstances. Justice Anthony Kennedy wrote the controlling opinion, as he supplied the fifth vote crucial to striking down the plans in Seattle and Louisville, but he also joined the otherwise dissenting Justices in concluding that achieving the educational benefits of diversity remains a compelling interest that school districts may pursue. The Department of Justice is working hard on a guide to help school systems sort through the issue. I will use this subject matter to comment on how we arrived at this moment, to suggest steps addressing the issue going forward, and to reflect on the nature of our Constitution.
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Food, water, health, housing, and education are fundamental to human freedom and dignity, yet only recently have legal systems begun to secure these fundamental individual interests as rights. This book analyses the transformation of socio-economic rights into constitutional rights, and their impact on public law and constitutional theory.
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Martha Minow, Justice Engendered, in Procedural Justice (Larry May & Paul Morrow eds., 2012).
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Among the many wonders of Clare Dalton is her brilliant performance in a one-person dramatic show as Virginia Woolf. So it seems fitting to turn to Woolf in thinking about how to introduce this tribute volume marking the close of Dalton’s career as a legal academic and start of her new career. Woolf once wrote: “It is no use trying to sum people up.” It is no use, then, to try to capture Professor Dalton solely by way of listing her many accomplishments: her creation of the landmark and vital Domestic Violence Institute at Northeastern Law School; her incisive, elegant writing; her passionate teaching at several law schools; or the awards from Radcliffe, the Massachusetts Women’s Political Caucus, Massachusetts Women’s Bar Association, and recognition as Feminist of the Year by the Feminist Majority Foundation. As marvelous as all of these are, naming them does not evoke her vividness, grace, or sense of fun. Woolf, thank goodness, has some other insights of use.
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School choice policies, which allow parents to select among a range of options to satisfy compulsory schooling for their children, have arisen from five periods of political and legal struggle. This Feature considers the shape of school choice that emerged in the 1920s education fight over Americanization of immigrants; the freedom-of-choice plans used to avoid court-ordered school desegregation in the 1950s and 1960s; magnet schools used to promote school desegregation in the 1970s until they were halted by the Supreme Court; constitutional campaigns for vouchers to pay for religious schooling; and current experiments with charter schools and other alternatives, including special-identity schools. The idea of school choice appeals to individual freedom, market competition, religious freedom, multiculturalism, and ideological neutrality. School choice programs draw new talent into schooling and offer new avenues for social integration but only if that goal becomes an explicit public commitment, shaping available choices. Otherwise, school choice can enable new forms of social separation and obscure the absence of equal opportunities for all students.
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Not every illness has a biological remedy. Poverty, Health and Law presents health in the broader social context of people's lives, providing insights into the advancement of health through legal advocacy and interdisciplinary solutions to complex social problems. Focusing on basic legal rights and their relation to health--income and employment, housing, education, legal status, and personal safety--the authors provide information and insight into how the law may be used as a tool to improve health and how health care providers and lawyers can work together to invoke more effective and preventive remedies for patients and clients. As America prepares for major reform of its health care system, Poverty, Health and Law brings to the forefront the need to address the root causes of illness and poor health, particularly among vulnerable populations, by exploring remedies and innovations both within and outside of the health care system.
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Over the course of his career at Harvard, Morton Horwitz changed the questions legal historians ask. The Transformation of American Law, 1780–1860 (1977) disclosed the many ways that judge-made law favored commercial and property interests and remade law to promote economic growth. The Transformation of American Law, 1870–1960 (1992) continued that project, with a focus on ideas that reshaped law as we struggled for objective and neutral legal responses to our country’s crises. In more recent years he has written extensively on the legal realists and the Warren Court. Following an earlier festschrift volume by his former students, this volume includes essays by Horwitz’s colleagues at Harvard and those from across the academy, as well as his students. These essays assess specific themes in Horwitz’s work, from the antebellum era to the Warren Court, from jurisprudence to the influence of economics on judicial doctrine. The essays are, like Horwitz, provocative and original as they continue his transformation of American legal history.