Faculty Bibliography

The question of why people follow the law has long been a subject of scholarly consideration. Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.

Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.

This volume provides detailed information on inequality between the sexes, an expert grasp of the legal and conceptual tools of sex equality in its manifold dimensions, and visions of future possibilities.

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.

This article examines the extent to which all 193 UN member states guarantee the rights of persons with disabilities in their national constitutions based on fundamental human rights outlined in the Convention on the Rights of Persons with Disabilities. As of May 2014, constitutions most commonly explicitly guarantee rights to persons with disabilities in education (28%), health (26%), and overall equity (24%). Fewer constitutions specifically guarantee the right to work or non-discrimination at work (18%), political rights (21-22%), or civil rights (9%) to persons with disabilities. Additionally, many constitutions permit denials of the right to liberty (19%) and political rights (22%-31%) for persons with mental health conditions. Although constitutional guarantees of rights for persons with disabilities are present in only a minority of constitutions, we find a significant increase in the inclusion of relevant provisions in constitutions adopted more recently, particularly those adopted in 2010 or later, across all regions.

The question of why people follow the law has long been a subject of scholarly consideration. Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.

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.

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.

Credit scores have become a near-universal financial passport for Americans to meet common personal needs including employment, loans, insurance, and home and car purchases or leases. At the same time, Elizabeth Warren and others have documented the horrific economic, emotional, and health consequences of low creditworthiness for score-bearers and their families. Individuals with psychosocial disabilities (previously called mental disabilities or mental illnesses) can make disastrously poor financial decisions during the active phases of their conditions; during inactive phases they are as capable as others of making sound or poor financial decisions. Yet, in computing credit scores and selling credit reports, national and transnational credit-reporting agencies (like Equifax) do not account for the implications of psychosocial disability. Worse, evidence shows that businesses rely on these reports to predatorily target borrowers with psychosocial disabilities — and especially those who are also women and racial minorities — in deciding terms of lending, employment, and housing. In theory but not in practice, the Americans with Disabilities Act and the Fair Housing Act each prohibit discriminatory financial decisions arising from disability status, while also requiring reasonable accommodations to equalize opportunities for disabled persons. The United Nations Convention on the Rights of Persons with Disabilities (which the United States has signed) further mandates enabling the financial decision making of these individuals, but does not provide guidance on achieving this obligation. Further, despite the crucial and direct implications this situation also raises for vast numbers of Americans without psychosocial disabilities who likewise make poor credit decisions, it has not undergone legal analysis. We engage this significant gap by suggesting schemes drawn from historical and comparative contexts that could enable the creditworthiness of persons with psychosocial disabilities, and then critiquing the costs and benefits of each. In doing so, we proffer the first analysis of this issue in the legal literature and seek to stimulate future dialogue among academics and policymakers. The Article concludes with thoughts on the implications of its analyses for the broader issue of credit scoring.

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.

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.

Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominentjurists disparaged testimony for commonly relating anecdotal experience rother than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.

Joseph Fishkin’s new book, Bottlenecks, reinvigorates the concept of equal opportunity by simultaneously engaging with its complications and attempting to simplify its ambitions. Fishkin describes bottlenecks as narrow spaces in the opportunity structure through which people must pass if they hope to reach a range of opportunities on the other side. A significant component of the American opportunity structure that Bottlenecks leaves largely unexplored, however, relates to people with disabilities. This Review applies Fishkin’s theory to explore how disability law creates and perpetuates bottlenecks that keep people with disabilities from achieving a greater degree of human flourishing. In particular, disability policy’s opportunity structure features a conceptual disability–employability divide that ultimately prevents people with disabilities from reaching a wider array of opportunities. Fishkin’s book, in concert with this Review, introduces new and inventive ways of reimagining and implementing structural solutions to these bottlenecks.

This Article argues that the paradigmatic right of people with disabilities “to live in the world” naturally encompasses the right “to live in the Internet.” It further argues that the Internet is rightly understood as a place of public accommodation under antidiscrimination law. Because public accommodations are indispensable to integration, civil rights advocates have long argued that marginalized groups must have equal access to the physical institutions that enable one to learn, socialize, transact business, find jobs, and attend school. The Web now provides all of these opportunities and more, but people with disabilities are unable to traverse vast stretches of its interface. This virtual embargo is indefensible, especially when one recalls that the entire Web was constructed over the last twenty-five years and is further constructed every day. Exclusion from the Internet will cast an even wider shadow as an aging U.S. population with visual, hearing, motor, and cognitive impairments increasingly faces barriers to access. Unless immediate attention is given, the virtual exclusion of people with disabilities — and others, such as elders and non-native English speakers — will quickly overshadow the ADA’s previous achievements in the physical sphere. Accordingly, this Article develops the claim that the Internet is a place of public accommodation, which must be integrated, by showing that the same concerns that motivated access for African Americans under the Civil Rights Act of 1964 now compel Web accessibility for people with disabilities under the Americans with Disabilities Act. The issue is, however, even more pressing because the Internet is broad enough to encompass all of the traditional categories of public accommodations — as well as social arenas like education and work. In this way, access to the Internet provides an unprecedented opportunity to overcome attitudinal barriers, because almost all people now interact frequently through the Web. Moreover, because disabilities are not apparent online, the Internet facilitates the social engagement of people who might not otherwise interact. Finally, Internet accessibility provokes reconsideration of the constitutional rights of individuals with disabilities. Integrating the Internet will advance — instead of infringe upon — their rights to democratic self-governance, personal autonomy, and self-expression.

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 Opinion Note highlights the international humanitarian law (IHL) provisions mandating dissemination of the Geneva Conventions and the Additional Protocols to the civilian population. In referencing three dilemmas concerning contemporary challenges to international law in armed conflict and how each of those dilemmas may result in a “breaking point” or a “turning point”, the author argues that it is vitally important not only for armed forces but also for the general public to learn – and actively engage with – IHL both during war and in (relative) peacetime.

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.

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.

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.