Faculty Bibliography

Relying chiefly on the combination of costly, unsystematic, and unreliable FDA monitoring and state negligence actions, the current postapproval system for controlling medical device risks falls far short of assuring optimal levels of safety. The reform proposal we advance comprehensively addresses these law enforcement deficiencies. The contemplated changes are straightforward and simple to implement yet would substantially reduce cost while increasing the effectiveness of both FDA monitoring and civil liability deterrence. Monitoring would be improved by requiring first-party insurers to investigate and report to the FDA the potential existence of a causal connection between the personal injury for which they are funding treatment and the patient’s (insured’s) use of or exposure to a medical device. The FDA would be authorized to enlist DOJ Civil Division enforcement of a federal cause-based strict liability action against the medical device manufacturer. The manufacturer would bear liability in full, with no reduction for risk contributions from the injured patient or other parties and would pay damages in total to the US Government. We explain the regulatory advantages of this new regulatory rule of cause-based strict liability relative to conventional rules of negligence and strict liability.

On November 3, 2020, voters in the state of Alabama approved the opaquely named “Authorize Legislature to Recompile the State Constitution Measure.” As described by the state’s Fair Ballot Commission, the ballot measure would permit the Alabama legislature to “(1) remove racist language” and “(2) remove language that is repeated or no longer applies,” among other things. The racist language in question? In one portion, the constitution still prescribed that “separate schools shall be provided for white and colored children.” Another section, though technically repealed by another amendment in 2000, remained in place memorializing that the “legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.” Though both these provisions were deemed unenforceable under the federal Constitution following blockbuster Supreme Court decisions, the provisions remained on the books. And even in 2020, the measure to eliminate this language passed only by a margin of 67% to 33%. Proposals to remove the language had twice failed since the year 2000—although the vocal opponents of those proposals objected allegedly not to preserve the language itself, but rather on the grounds that revising the language would have various unintended consequences for taxation or school funding. Alabama’s language may have lasted longest, but many other state constitutions contained similar provisions well into recent history. Today’s state constitutions remain full of sections that can be characterized as “zombie provisions”—clearly or arguably unenforceable clauses and amendments that stick with us, toward sometimes unclear effect and with potentially harmful consequences. The “zombie” phenomenon is becoming more well known in an adjacent context, although zombie-ism appears with (perhaps alarming) frequency in different strands of legal scholarship. Pertinent for our purposes, both judges and scholars have used the term “zombie laws” or “zombie statutes” to describe legislation rendered unenforceable by a constitutional decision or other laws, but that nevertheless “remain[s] on the books.” Even more recently, several scholars have identified judicial opinions as another area pervaded by the undead. Despite widespread rejection of disturbing precedents on topics ranging from slavery to women’s rights, these “artifacts from morally unrecognizable eras” persist and resurface in modern case law, raising questions about whether they should ever have precedential value, the harms continued invocation of these decisions may perpetuate, and how and whether courts should repudiate them. This Essay canvasses the zombie phenomenon in modern state constitutions. Although there are strong parallels to zombie legislation, state constitutions deserve their own treatment. To be sure, in many cases, subject matter addressed in one state’s code can be found in a different state’s constitution, like the multitude of amendments in Alabama’s constitution governing the playing of bingo games in various counties. And like statutes, direct democratic participation shapes the content of many state constitutional provisions. But as sources of law, state constitutions exist somewhere on a spectrum, with statutes at one pole and the federal Constitution on the other. As constitutions, these state documents are meant to apply for long durations and are subject to particular amendment procedures, making them more resistant to change than the average statute (though certainly not as fixed as the federal Constitution). These similarities and differences merit separate discussion of the zombie provisions of state constitutions and what, if anything, should be done about them. This Essay proceeds in three parts. First, it uses the state constitutions to examine the ambiguities in what counts as a “zombie,” identifying both core and more peripheral cases, as well as some constitutional provisions that do not quite qualify as zombies but nonetheless seem potentially worrisome. Next, it considers the harms that zombie provisions may cause, exploring these harms alongside those identified in related contexts ranging from covenants running with land to unenforceable or unenforced statutes. The final Part considers in detail both the arguments for and against removal and the different methods by which zombie provisions might be rejected or removed. Since 2020, there have been several efforts in individual states to remove currently unenforceable state constitutional provisions. This Essay is thus a timely exploration of what makes these provisions problematic as well as some of the nuanced and difficult questions involved in any decision to neutralize them.

This landmark publication—the first of its kind in 30 years—enables advocates to successfully represent veterans who unjustly received less-than-honorable or other stigmatizing discharges. Written by attorneys from the Legal Services Center of Harvard Law School’s Veterans Legal Clinic and Connecticut Veterans Legal Center, this book helps bring honor and life-altering benefits to veterans.

The institutional dialogue among the Committee on the Rights of Persons with Disabilities and other human rights tribunals has led to greater protection of rights. But not all courts and treaty bodies have accepted the Committee’s absolutist position on legal capacity. The chapter illustrates the multiple human rights-based approaches to capacity and decision-making, and describes how the Committee’s absolutism endangers many of the people living with moderate or severe dementia whom it supposedly benefits.

A reckoning for single-family zoning is underway. From Minnesota to California, cities and states are looking for ways to compel the densification of neighborhoods long devoted to large lots and detached homes. The bitter debates occasioned by these efforts expose a common source of homeowner opposition: worries about multifamily housing and, specifically, the apartment building. In that regard, little about land use law seems to have changed. The apartment was cited as an evil in the case that upheld zoning as a legitimate use of the state’s regulatory power nearly a century ago. Beginning the story there, however, misses an important chapter. For decades prior, judges routinely declined to consider apartments undesirable neighboring uses that existing owners could prevent through private law. The legal history of the apartment demonstrates the important interplay between private forms of land use law — nuisance and deed restrictions or covenants — and the ways that these private land use controls influence the evolution of public regulation. This Article uses a forgotten period in urban development to illustrate the critical interactions among forms of private and public law in identifying the proper subjects of land use control. In the early nineteenth century, a tool blending contract and tort proliferated: the nuisance covenant, a promise transmitted through deeds not to engage in specific noxious uses — an expanding list ranging from slaughterhouses to circuses to tenements — or any use deemed noxious in the future. This innovation offered benefits over covenant and nuisance law independently, as drafters were able to tailor the definition of nuisance while preserving flexibility to prevent unanticipated activities. And yet, the arrival of the apartment exposed the strong pull of traditional nuisance law: judges were hesitant to interpret restrictions to ban this new form of housing associated with the middle and upper classes. Lawyers and developers worked to identify apartments as problematic through newly drafted covenants and the concept of near-nuisance, paralleling arguments that would reemerge decades later as the proponents of zoning contended that it was within the state’s police power to limit apartment construction. Nuisance and covenant law influenced how judges and other parties came to see uses as harmful and anticipated debates about the appropriate scope of regulation. This dialogue between private and public law is echoing in the twenty-first century, and private law continues to form an important, lurking limitation on land use reform.

The Supreme Court's June 2020 opinion in Department of Homeland Security v. Thuraissigiam unjustifiably reopens settled questions about the Habeas Corpus Suspension Clause of the U.S. Constitution, and endangers everyone -- U.S. citizens and noncitizens alike.

In ♦51 Imperfect Solutions♦, Judge Jeffrey Sutton depicts some of the virtues and flaws of our dual system of American constitutionalism across four chapters illustrating different models of interaction among the state and federal constitutions and their interpreters. In this symposium contribution, I submit a fifth chapter about property law that varies in some important respects from Judge Sutton’s chapters involving education rights, the Fourth Amendment’s exclusionary rule, forced sterilization, and the First Amendment. Several of Judge Sutton’s chapters are told through parallel federal and state stories. Borrowing this approach, this contribution tells a federal story—from an odd period during the nineteenth century when the federal courts routinely expounded and disseminated state takings law—and a state story—from a fifty-year period in the twentieth century when the states were left to decide whether to follow the federal courts in recognizing regulatory takings but without a specific test to follow. Across these stories, takings law has often been marked by uniformity, rather than state-level variation and innovation—uniformity driven, in part, by the force of other states’ rules. This domino effect is the consequence of both specific features of takings doctrine and organic borrowing. In closing, I offer some tentative thoughts on why property and takings law have tended to yield homogeneity and eliminate ingenuity in this way, even in the absence of definitive federal pronouncements about some of the thorniest puzzles within takings doctrine.

Preemptive rights are thought to protect minority shareholders from cheap-stock tunneling by a controlling shareholder. We show that preemptive rights, while making cheap-stock tunneling more difficult, cannot prevent it when asymmetric information about the value of the offered shares makes it impossible for the minority to know whether these shares are cheap or overpriced. Our analysis can help explain why sophisticated investors in unlisted firms and regulators of listed firms do not rely entirely on preemptive rights to address cheap-stock tunneling, supplementing them with other restrictions on equity issues.

The four chapters in this part, each in its own way, raise and begin to propose answers to the enormously challenging question of society’s responsibilities toward persons with disabilities when it comes to the provision of healthcare. Although all four are one in recognizing and documenting the all too abundant and profound ways in which persons with disabilities are disadvantaged (many of which are not obvious to persons whose lives are not touched by disability), they differ markedly in their proposals to rectify these problems.

Transparency is a concept that is becoming increasingly lauded as a solution to a host of problems in the American health care system. Transparency initiatives show great promise, including empowering patients and other stakeholders to make more efficient decisions, improve resource allocation, and better regulate the health care industry. Nevertheless, transparency is not a cure-all for the problems facing the modern health care system. The authors of this volume present a nuanced view of transparency, exploring ways in which transparency has succeeded and ways in which transparency initiatives have room for improvement. Working at the intersection of law, medicine, ethics, and business, the book goes beyond the buzzwords to the heart of transparency's transformative potential, while interrogating its obstacles and downsides. It should be read by anyone looking for a better understanding of transparency in the health care context.

Is the world facing a serious threat to the protection of constitutional democracy? There is a genuine debate about the meaning of the various political events that have, for many scholars and observers, generated a feeling of deep foreboding about our collective futures all over the world. Do these events represent simply the normal ebb and flow of political possibilities, or do they instead portend a more permanent move away from constitutional democracy that had been thought triumphant after the demise of the Soviet Union in 1989? Constitutional Democracy in Crisis? addresses these questions head-on: Are the forces weakening constitutional democracy around the world general or nation-specific? Why have some major democracies seemingly not experienced these problems? How can we as scholars and citizens think clearly about the ideas of "constitutional crisis" or "constitutional degeneration"? What are the impacts of forces such as globalization, immigration, income inequality, populism, nationalism, religious sectarianism? Bringing together leading scholars to engage critically with the crises facing constitutional democracies in the 21st century, these essays diagnose the causes of the present afflictions in regimes, regions, and across the globe, believing at this stage that diagnosis is of central importance - as Abraham Lincoln said in his "House Divided" speech, "If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it."

A Report of the Syrian Refugee Resettlement Project, An Initiative of the Harvard Immigration and Refugee Clinical Program. At a time when the U.S. refugee admissions program is under serious threat and the world’s displaced population is at its highest, this Report sets forth extensive recommendations regarding the United States’ role in protecting vulnerable refugees and compliance with its commitments under domestic and international law that together safeguard people fleeing persecution and fearing return to torture. The Report also identifies key national security reasons for supporting and enhancing the refugee program in keeping with U.S. foreign policy priorities. Additionally, the Report provides an in-depth discussion of the robust, multistep security-assessment mechanisms already in place for screening refugees; offers viable policy solutions to improve the integration of resettled refugees through enhanced collaboration among government agencies, private resettlement agencies, and sponsors involved in domestic resettlement; and demonstrates the positive economic impact of refugee resettlement in the United States. Drawing on the perspectives of longtime domestic refugee resettlement experts, the Report also provides fresh insights into how public private partnerships function in refugee resettlement and the ways in which they can be strengthened.

"With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds"-- Provided by publisher.

The Nineteenth Edition is an updated version of this classic casebook, adding new materials on the Supreme Court’s most recent decisions on federal power, free speech, equal protection and religious freedom to its existing comprehensive coverage of separation of powers, federalism, civil rights and civil liberties. This casebook provides a unique combination of clearly structured and lawyerly coverage of the cases with rich historical, theoretical, and philosophical materials that illuminate the development of our constitutional law. In the 19th edition, you will find the latest decisions on gay marriage, street signs and confederate flags, campaign contribution limits, congressional power over voting rights, and religious exemptions from health care mandates, among many others. The note materials and questions in the casebook make it easy to structure classes and promote lively discussion. And comparative examples from the constitutional law of other nations are provided throughout.

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.

This essay discusses the development of a Legislation and Regulation course (or Leg-Reg) as part of a 1L curriculum reform that the Harvard Law School faculty unanimously adopted in 2006. The reform was adopted following three years of work by a Committee on Educational Innovations appointed by then-Dean Elena Kagan and chaired by future Dean Martha Minow. The Leg-Reg piece of the new curriculum aims to broaden the 1L program's perspective from the essential, but by today's standards incomplete, focus on private law topics and common law reasoning that had dominated the 1L curriculum since 1873. Leg-Reg instead focuses on statutes and the regulations that implement them. The course emphasizes not only the interpretation of those materials, but also the lawmaking process, institutional context, and political dynamics that shape the production and interpretation of statutes and regulations. This essay discusses several aspects of the Harvard experience with Legislation and Regulation. First, because reforming the 1L curriculum is such a daunting process, the paper provides a brief account of the extensive curricular reform process that successfully produced this and two other new 1L courses. Second, the essay discusses the course's strategy for fitting novel and somewhat different techniques, materials, and concepts into a 1L course. In particular, it will discuss the fact that, while the Leg-Reg incorporates many topics and methods that are touched on only tangentially, if at all, in other 1L courses (such as textual exegesis, legislative procedure, and public choice theory), it does so primarily by asking students (a) to learn and assess concrete, real-world legal decisions and then (b) to build out, through note material, to the broader concepts implicated by the cases. In addition, the version of the Leg-Reg course developed at Harvard is consciously transsubstantive, rather than focused on a particular policy area. Third, this essay elaborates on this pedagogical approach by giving some detail about the way Leg-Reg presents certain key cases on statutory interpretation. Fourth, the essay examines the administrative law (“Reg”) component of the course. In particular, the essay explains how starting with statutory interpretation addresses the often-voiced concern that administrative law is simply too complicated for 1Ls. This part of the essay also discusses the impact of 1L Leg-Reg course on enrollments in Administrative Law and related public law offerings.

"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.

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.

The goal of this brief note is to clarify the role of deferral in income taxation by introducing a distinction between pure deferral and counterparty deferral. Pure deferral (such as a current deduction for a capital expenditure) is equivalent to an interest-free loan from the government and, under certain assumptions, to a tax exemption for investment income. Counterparty deferral (such as qualified or nonqualified deferred compensation) shifts taxation of investment income to another party or account, so the advantage depends on the counterparty’s tax rate. Failure to understand these relationships can lead to erroneous conclusions. For example, it is sometimes said that capital gain property will suffer a tax disadvantage if placed in a qualified retirement account because the gain will be subject to full ordinary rates on withdrawal. Similarly, deferral of the employer’s deduction is often said to offset the benefit of deferring an employee’s inclusion of nonqualified deferred compensation. The note demonstrates that both of these statements are erroneous under standard assumptions.

This briefing highlights the importance of a child-centered approach in children’s asylum cases by focusing on Mejilla-Romero v. Holder, a recent First Circuit Court of Appeals case presented by the Harvard Immigration and Refugee Clinic at Greater Boston Legal Services.

Legal scholars, economists, and other social scientists interested in property will find this Handbook an often-referenced addition to their libraries.

In this Article, we focus on an important problem with mass-accident cases, a problem highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to allocate liability among the business and governmental entities that contractually participated in the risky venture. Joint and several liability with provision for contribution, for example, enables plaintiffs asserting primary claims to recover all proven damages from a single “deep-pocket” defendant, regardless of that defendant’s own share of legal responsibility for the harm, and then authorizes the defendant to sue other joint venturers to recoup payments in excess of its proportionate share of liability. The key point for our purposes is that contribution claims are entirely creatures of the joint venturers’ own making. Through a contract that establishes the terms of their joint venture relationship (“predispute contract”), the parties can exercise complete control over whether to subject themselves to contribution claims, and, if so, whether to resolve the claims by publicly funded courts or by a privately funded alternative, such as arbitration. Because the parties prosecuting and defending against contribution claims can consume judicial resources largely free of charge, it is likely they will choose to litigate in court to a greater extent than is socially desirable. The specific, socially detrimental result of such distorted litigation incentives is delayed resolution of cases that merit greater priority in gaining access to public judicial resources. Generally, these are cases in which the claimants lacked predispute contractual means to control risk and provide for nonjudicial alternatives, and hence the principal social benefits of deterrence and compensation depend on court-enforced civil liability. We argue that courts can effectively correct the contracting parties’ incentives by charging them for the cost of using the judicial process. Requiring contracting parties to pay their way in court would free up judicial resources to increase the average level of benefits from adjudication. Such a user fee, as we show, can be extended to almost all commercial-contract cases.

The dramatic growth of government over the course of the twentieth century since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government’s costs, efficiency, and quality of service. These concerns, combined with rising confidence in private markets, motivate the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. “Government by contract” now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects. Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values? Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns.

"The Dramatic Growth of Government since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government's costs, efficiency, and quality of service. This concern, combined with rising confidence in private markets, motivates the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. "Government by contract" now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects." "Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values?" "Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns."--Jacket. An earlier version of the chapter appeared as an article in: 46 Boston College Law Review 989 (2005).

Kaufman and Wilkins mark the 20th anniversary of Problems in Professional Responsibility for a Changing Profession with a new 5th edition. Their new edition covers judicial, legislative, and executive developments in the traditional fields of conflicting interests and confidentiality, specialty fields of corporate and government representation as well as representation of those with impaired capacity. It also deals with the problems created by the increasing nationalization and internationalization of law practice, including the basic problem of trying to determine whose professional responsibility law governs the activity of lawyers when they engage in activity beyond their home jurisdictions. Various efforts to reform the profession here and abroad to meet the legal needs of clients and would-be clients are also presented. The authors have added substantial new material dealing with the demographics and institutions of law practice and their effect on professional identity.

An Interdisciplinary Approach to Budget Policy Elizabeth Garrett, Elizabeth A. Graddy, Howell E. Jackson. 6 Counting the Ways The Structure of Federal Spending Howell E. Jackson In the realm of budget policy, numbers are important. ... and suggestions from participants at the February 2006 Conference on Fiscal Challenges: An Interdisciplinary Approach to Budget Policy held at USC Law School and ...

By what criteria should public policy be evaluated? Fairness and justice? Or the welfare of individuals? Debate over this fundamental question has spanned the ages. Fairness versus Welfare poses a bold challenge to contemporary moral philosophy by showing that most moral principles conflict more sharply with welfare than is generally recognized. In particular, the authors demonstrate that all principles that are not based exclusively on welfare will sometimes favor policies under which literally everyone would be worse off. The book draws on the work of moral philosophers, economists, evolutionary and cognitive psychologists, and legal academics to scrutinize a number of particular subjects that have engaged legal scholars and moral philosophers. How can the deeply problematic nature of all nonwelfarist principles be reconciled with our moral instincts and intuitions that support them? The authors offer a fascinating explanation of the origins of our moral instincts and intuitions, developing ideas originally advanced by Hume and Sidgwick and more recently explored by psychologists and evolutionary theorists. Their analysis indicates that most moral principles that seem appealing, upon examination, have a functional explanation, one that does not justify their being accorded independent weight in the assessment of public policy. Fairness versus Welfare has profound implications for the theory and practice of policy analysis and has already generated considerable debate in academia.