Faculty Bibliography

Harvard Law School is the oldest and, arguably, the most influential law school in the nation. U.S. presidents, Supreme Court justices, and foreign heads of state, along with senators, congressional representatives, social critics, civil rights activists, university presidents, state and federal judges, military generals, novelists, spies, Olympians, film and TV producers, CEOs, and one First Lady have graduated from the school since its founding in 1817. During its first century, Harvard Law School pioneered revolutionary educational ideas, including professional legal education within a university, Socratic questioning and case analysis, and the admission and training of students based on academic merit. But the school struggled to navigate its way through the many political, social, economic, and legal crises of the century, and it earned both scars and plaudits as a result. On the Battlefield of Merit offers a candid, critical, definitive account of a unique legal institution during its first century of influence. Daniel R. Coquillette and Bruce A. Kimball examine the school’s ties with institutional slavery, its buffeting between Federalists and Republicans, its deep involvement in the Civil War, its reluctance to admit minorities and women, its anti-Catholicism, and its financial missteps at the turn of the twentieth century. On the Battlefield of Merit brings the story of Harvard Law School up to 1909―a time when hard-earned accomplishment led to self-satisfaction and vulnerabilities that would ultimately challenge its position as the leading law school in the nation. A second volume will continue this history through the twentieth century.

BACKGROUND: Since its establishment in 1948, the state of Israel has been deeply committed to reintegrating veterans with disabilities into mainstream society. Prominently, the Israeli Ministry of Defence's rehabilitation division provides veterans with disabilities with a wide array of benefits and services aimed at restoring their physical and psychosocial functioning, especially in the workplace. The focus on employment is motivated by a prevailing assumption among professionals that successful adjustment to disability is contingent on an individual's ability to reacquire normative occupational function. To date, however, this widely accepted wisdom has not been empirically scrutinized. OBJECTIVE: To empirically explore whether employment status is associated to psychological, social, and behavioural adjustment attributes. METHODS: One hundred and one employed veterans were compared to 111 non-employed veterans in respect to their self-reported levels of hope, acceptance of disability, social networks size and social participation patterns. RESULTS: Employed veterans reported significantly higher levels psychological adjustment as manifested in elevated hope and acceptance of disability and lighter social network than their non-employed counterparts. However no differences were found between employed and non-employed veterans with respect to their social participation patterns. CONCLUSIONS: The value of these findings, as well as wider implications for rehabilitation professionals and policy makers, is discussed.

BACKGROUND: Barriers to employment in the civilian labor force are increasingly difficult problems for returning veterans with disabilities. Reduced self-perception of disability status because of predominant military norms can be particularly harmful to reintegration efforts. OBJECTIVE: We analyze rates of self-identified and externally determined disability status among U.S. veterans. Evidence of a lower self-report rate would confirm the hypothesis that armed forces culture might hold back truly deserving veterans from seeking the benefits owed, including specialized employment training programs. METHODS: We use data from the Current Population Survey Veterans Supplement over the sample period 1995—2010 on disability status and associated demographic characteristics to present descriptive measures and limited statistical inference. RESULTS: Over the entire sample period, federal agencies considered 29% of the survey respondents to have a service-connected disability versus a 9% self-identification rate. The rate of more severe service-connected disabilities has risen steadily, while less drastic disability rates have fallen. Non-white respondents and those with lower education levels were less likely to self-identify. CONCLUSIONS: Large disparities in internal and external disability status identification raise questions about targeting soldiers re-entering the labor force. Employment policy should focus on overcoming negative cultural stereotypes and encouraging self-identification.

This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection. The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons with disabilities, this violates the requirement of equality expressed in general international human rights law that recently was explicitly extended to cover disability. The Article also pushes the discussion forward by delving into the controversial and unsettling notion of proxy voting, suggested by philosopher Martha Nussbaum. Although a small number of individuals cannot currently be accommodated in the electoral process, this does not justify their disenfranchisement. Nor does it warrant a more intrusive measure, such as voting by proxy. In no circumstance should their situation justify singling out voting-incapable persons from other individuals or categorizing them differently before the law. Although the focus is often seen through a European lens, the questions raised are pertinent for the exercise of human rights by persons with disabilities around the globe.

Inheritance is a significant means of transferring wealth from one generation to the next, and therefore increasingly attracts attention from researchers and policy-makers working on intergenerational and multidimensional poverty. However, until now disabled persons have been overlooked in these discussions. This oversight is particularly unfortunate because, as a group, the estimated one billion people with disabilities (some 15% of the world’s population) are among the poorest and most marginalized of the global population. Over the past decade, a small but growing literature has examined the recursive connections between poverty and disability throughout the developing world. In this paper, we argue that disabled individuals are routinely denied inheritance rights in many low-income and middle-income countries, and that this is a significant and largely unrecognized contributor to their indigence. The denial of inheritance is both a social justice issue and a practice that can no longer be overlooked if disabled persons are to be brought into the development mainstream.

Should we empower the Supreme Court to (re)structure our basic institutions?

Excitement mounts as the global health and international development communities anticipate a polio-free world. Despite substantial political and logistical hurdles, only 223 cases of wild poliovirus in three countries were reported in 2012. Down 99% from the estimated 350,000 annual cases in 125 countries in 1988—this decline signals the imminent global eradication of polio. However, elimination of new polio cases should not also signal an end to worldwide engagement with polio. As many as 20 million continue to live with the disabling consequences of the disease. In developed countries where polio immunization became universal after dissemination of the polio vaccine in the 1950s, almost all individuals who have had polio are now above age 50. But in many developing countries where polio vaccination campaigns reached large segments of the population only after 1988, millions disabled by polio are still children or young adults. Demographically, this group is also different. After three decades of immunization efforts, those children unvaccinated in the late 1980s were more likely to be from poorer rural and slum communities and to be girls—groups not only harder to reach than more affluent members of the population but also individuals who, if they contract polio, are less likely to have access to medical and rehabilitation programs or education, job training, employment and social support services. The commitment to eradicate polio should not be considered complete while those living with the disabling sequelae of polio continue to live in poor health, poverty and social isolation. This paper reviews what is currently known about disabled survivors of polio and highlights areas of need in public health research, policy and programming. Based on a literature review, discussion and field observations, we identify continuing challenges posed by polio and argue that the attention, funding and commitment now being directed towards eradication be shifted to provide for the rehabilitative, medical, educational and social needs of those for whom the disabling sequelae of polio will remain a daily challenge for decades to come.

This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group identity status. It proposes that, in principle, “accommodating every body” be achieved by extending Americans with Disabilities Act type reasonable accommodation to all work-capable members of the general population for whom accommodation is necessary to enable their ability to work. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity — people whose functional capacity does not comply with prevailing workforce design and organizational presumptions — and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because it is in everyone’s interest to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.

"Despite international and national guarantees of equal rights, there remains a great deal to be done to achieve global employment equality for individuals with disabilities. In OECD countries, the employment rate of persons with disabilities was just over 40%, compared to 75% for persons without a disability; in many low- and middle-income countries, the employment rates are even lower."

BACKGROUND: Employment, social capital, and community participation have emerged in recent years as significant concepts for realizing the human rights of individuals with disabilities. Yet the theoretical interrelationship of these concepts remains largely overlooked, as does the empirical basis for understanding the underlying connections. OBJECTIVES: This study explores the relationship between employment status, social capital, community participation, and well-being among Israelis with disabilities. It also explores the unique contribution of social capital to the well-being and integration of individuals with disabilities. METHOD: 274 participants with self-reported disabilities completed a questionnaire containing measures of individual social capital, community participation, well-being, and background data. Correlation and Univariate analysis were used to compare scores between employed (n=131) and non-employed (n=143) participants, and logistic regression analysis was conducted to test the unique contribution of employment to social inclusion and well-being. RESULTS: Employed participants reported significantly higher levels of social capital and were more integrated in leisure and civic activities than their non-employed counterparts. Moreover, employment status was found to have a significant contribution to the variance in the subjective well-being of participants. CONCLUSIONS: By more fully understanding the importance of social capital for community inclusion, practitioners can better address the importance of network-building during the rehabilitation process as a means of promoting social and vocational integration.

This article argues that negotiators' experiences of internal conflict over their identity and role -- what we term "the negotiation within" -- has a significant impact on across-the-table negotiations in the legal profession and in business. This impact has been mostly overlooked by the literature on negotiation, which focuses on strategic, structural, and psychological barriers to negotiated agreements that are divorced from the real, internal experiences of most negotiators. The article analyzes the impact and suggests a typology for naming and understanding internal conflict. It concludes with a three-stage prescription on how to manage such conflicts described as "mirror work," "chair work," and "table work."

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.

The parallels between Bacon's career and that of Edward H. Cooper are, of course, obvious. Bacon was one of the great legal minds of his day. Unlike the common-law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). Indeed, my thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading and is, in fact, the intellectual forbearer of the likes of Charles Clark, Benjamin Kaplan, and Edward Cooper. My intention is to establish this thesis by examining Bacon's Ordinances and his seminal A Proposition to His Majesty Touching the Compiling and Amendment of the Laws of England (1616). These show Bacon's great debt to Roman jurisprudence and Renaissance critical thinking but also show the unique contribution Bacon has made to modern progressive jurisprudence. This is particularly true as to the forming of law by prospective rules, rather than retroactive case law, and the testing and amendment of such rules in light of Bacon's revolutionary theories of inductive scientific reasoning and empirical observation. Bacon's innovations earned him contempt and ferocious critical opposition, both during his life and up to the present day. I will conclude by noting three particular sources of this opposition that remain relevant to scientific, progressive rulemaking. As Mark Twain was thought to have said, "History doesn't repeat itself, but it rhymes."

Considers the variety of egalitarian ideas and, the compatibility of equality with the recognition of forms of valuable accomplishment.

Discusses the variety of objections to inequality, relations between these objections, and the implications of this pluralist view of equality for the question of cosmopolitanism about justice.

The paper examines how the value of choice account is supposed to explain the significance of choice in the justification of moral principles and social institutions and policies, responding to some questions and objections raised by Serena Olsaretti.

Discusses Waheed Hussain’s conception of freedom and its relation to value pluralism.

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.

This article explores the relationship between the Americans with Disabilities Act (ADA) and the relative labor market outcomes for people with disabilities. Using individual‐level longitudinal data from 1981 to 1996 derived from the previously unexploited Panel Study of Income Dynamics (PSID), we examine the possible effect of the ADA on (1) annual weeks worked; (2) annual earnings; and (3) hourly wages for a sample of 7,120 unique male household heads between the ages of 21 and 65, as well as for a subset of 1,437 individuals appearing every year from 1981 to 1996. Our analysis of the larger sample suggests the ADA had a negative impact on the employment levels of disabled persons relative to nondisabled persons but no impact on relative earnings. However, our evaluation of the restricted sample raises questions about these findings. Using these data, we find little evidence of adverse effects on weeks worked but strong evidence of wage declines for the disabled, albeit declines beginning in 1986, well before the ADA's passage. These results therefore cast doubt on the adverse ADA‐related impacts found in previous studies, particularly Acemoglu and Angrist (2001). The conflicting narratives that emerge from our analysis shed new light on, but also counsel caution in reaching final conclusions about, the impact of the ADA on employment outcomes for people with disabilities.

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.

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.

In his 1994 seminal article on Federalizing Legal Ethics, Prof. Fred Zacharias examined the need for a national and uniform code of ethics for attorneys. Prof. Zacharias was correct that there has been increasing pressure to federalize legal ethics, but that process is occurring not through articulation of national norms but rather through decentralized contextualization of attorney conduct norms. Federal agencies that direct securities practice, immigration, tax, patent, labor and many other areas of federal practice are increasingly supplementing state regulations to specifically regulate the attorneys who appear before their agencies. Targeted substantive federal law and treaty obligations also increasingly apply to attorneys. The effect is to slowly move the center of gravity of attorney regulation toward a complex web of federal regulation in the many areas that involve federal interests. This process offers some important benefits of contextualization and carries some risk, including conflicts between federal and state norms. Our robust experience with federalism provides a mechanism to work through these tensions and differences.

As the first human rights treaty of the twenty-first century, the United Nations Convention on the Rights of Persons with Disabilities (CRPD, or Convention) has an opportunity to progressively reconfigure the structure and process of human rights oversight. The Convention was opened for signature on March 30, 2007, and entered into force on May 3, 2008. On November 3, 2008, a monitoring Committee on the Rights of Persons with Disabilities (Committee) was elected during the initial Conference of States Parties to protect the rights of the world’s largest minority, some 650 million persons with disabilities. The overall framework for monitoring and implementing the Convention resembles existing core human rights instruments, particularly the Enforced Disappearances treaty that was adopted eight days afterwards. At the same time, the Committee is endowed with several notable innovations of significant potential, especially in the breadth of reporting and investigative procedures, thereby offering prospects for other treaty bodies and the human rights system more generally. Accordingly, this Article examines the development of the CRPD Committee and assesses its potential for invigorating future United Nations monitoring reforms. Part I of the Article describes the Committee established by the United Nations to scrutinize the CRPD and highlights its advances over other human rights treaty bodies. Next, Part II looks at monitoring innovations that were suggested during the CRPD negotiations at a time when treaty body reform was a major subtext, but ultimately were not incorporated into the final instrument. In doing so, Part II considers how adoption of some of these oversight procedures could have affected broader human rights treaty reform efforts at the United Nations. Finally, Part III suggests creative avenues through which the Committee may yet progressively shape the direction of human rights treaty monitoring through innovative practices.