Harvard Law Research Articles

Are Noncompetes Holding Down Wages?

This brief, written for the Unrigging the Labor Market convening on June 13, 2018 at Harvard Law School, summarizes the empirical research on the relationship between covenants not to compete, their enforceability, and wages.

Role of Intellectual Institutions Guiding Citizens on Ideas As Fit for Purpose

Humanity manages all situations based on the ideas it chooses to apply. The quality of management of any situation depending on the quality of the ideas applied, described as ideas fit for purpose of living. It follows that ideas selected offer ‘best’ results, with ‘best’ being defined by moral, ethical and social justice considerations. All major factors influencing humanity today are created by humanity. Psychology, society, our structuring of our physical environment all determined by our choice of ideas we apply. The ideas we apply defined as the design specification for the situation. All design specifications are ideas of choice applied to manage the situation to which they apply. It follows that mental health, mental illness, education, intelligence, talent development, organization design and operation, social justice, distributive fairness, poverty, inequality, culture, race, law and legal structure, etc., are managed according to the design specifications we apply. Reason defined as the process for selection of the ‘best’ ideas, those most fit for purpose of living. Situations are complex and necessarily involve complex ideas. It is appropriate to hold identified social institutions with the requisite intellectual skills to account for advising and guiding citizens on ideas to apply to any complex situation. This paper argues that modern intellectual (academic) institutions are best suited to the role of providing advice on ideas best fit for purpose of living. To be accepted as a designated ‘advisory intellectual institution’ the institution must accept the duty of care to citizens called the strategic humanist purpose when warranting ideas as fit for purpose of living. Further, that the duty of care is legally enforceable, just as is quality of any product offered by any commercial organization. The duty of care is vested in the institution, not in individual academics who have full freedom of speech. The institution (via the President or Vice Chancellor) authorizes the presentation of an individual academic if and only if the institution warrants to the citizens it serves, that the ideas are the ‘best’ ideas fully fit for purpose of living. In the absence of institutional support, the individual academic may offer what they please within law but may not associate the institution with said offering. It is proposed that the legality of the duty of care be tested by a “trial” conducted by two teams from within Harvard Law, before three Judges, who will decide on the case: Harvard University as an institution had an intrinsic duty of care to American citizens in allowing adoption of Freudian psychology and with the failure of Freudian psychology Harvard failed in that duty of care.

J.H.C. Morris, the proper law doctrine and the law of obligations: A critical appraisal

Courts in the common law world, more particularly in England and the United States, had recourse to the jurisdiction selection rule with respect to the law of obligations, in law of contracts and law of torts, till the first half of the twentieth century. Needless to say, they were under the influence of A.V. Dicey and J.H. Beale who advocated the jurisdiction selection rule. According to them the law to govern a foreign contract is the law of the country where it is to be performed. Similarly, the law to govern a foreign tort is the law of the country where the tort was committed. Professor Morris’ paper titled “The Proper Law of a Tort,” advocated the proper law doctrine in respect of the Law of Obligations. The proper law doctrine is the outcome of the combined effect of the “rule selection” rule of Professor Cavers of the Harvard Law School, and the issue-based approach of Professor Walter Wheeler Cook. Recourse to the proper law doctrine of Morris will in the case of a foreign contract produce, in his own words, “a commercially convenient and sound” result, and in the case of foreign tort a “socially convenient and sound” result.

Walker v City of Birmingham Revisited

Previous articleNext article No AccessWalker v City of Birmingham RevisitedRandall KennedyRandall Kennedy Search for more articles by this author Randall Kennedy is the Michael R. Klein Professor of Law, Harvard Law School.PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20172017 Article DOIhttps://doi.org/10.1086/697526 Views: 156Total views on this site © 2018 by The University of Chicago. All rights reserved.PDF download Crossref reports no articles citing this article.

De Harvard a Stanford. sobre la historia de la educación jurídica en los Estados Unidos

En la tradición inglesa, la educación jurídica estaba a cargo de la profesión. Esta manera de educar a los abogados no se adaptó bien a la estructura social de los territorios de la América del Norte que formaron luego los Estados Unidos. Desde final del siglo XVIII se introdujo la educación jurídica en las universidades o en escuelas profesionales. El estilo de educación jurídica de los Estados Unidos que conocemos hoy fue creado por Harvard a partir de 1870. Stanford comenzó ofreciendo educación jurídica desde finales del siglo XIX, y se ha transformado en una escuela especialmente reconocida hoy por la innovación y la excelencia. El artículo ofrece una historia corta de la educación jurídica centrada en la contribución de esas dos grandes escuelas.

Connecting the Dots: The Nexus Between Leadership and Negotiation

Negotiation JournalVolume 34, Issue 2 p. 207-213 Review Essay Connecting the Dots: The Nexus Between Leadership and Negotiation Joshua N. Weiss, Joshua N. Weiss Joshua N. Weiss: is senior fellow at the Harvard Negotiation Project and co-founder of the Global Negotiation Initiative at the Program on Negotiation at Harvard Law School. He is also the founder and director of the Master of Science in Leadership and Negotiation program at Bay Path University in Longmeadow, Massachusetts. His e-mail address is joweiss@law.harvard.edu.Search for more papers by this author Joshua N. Weiss, Joshua N. Weiss Joshua N. Weiss: is senior fellow at the Harvard Negotiation Project and co-founder of the Global Negotiation Initiative at the Program on Negotiation at Harvard Law School. He is also the founder and director of the Master of Science in Leadership and Negotiation program at Bay Path University in Longmeadow, Massachusetts. His e-mail address is joweiss@law.harvard.edu.Search for more papers by this author First published: 13 April 2018 https://doi.org/10.1111/nejo.12224 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume34, Issue2April 2018Pages 207-213 RelatedInformation

Trump’s administrators on the move

Mike Pompeo is President Donald J. Trump’s nominee to become secretary of state after Trump abruptly fired Rex Tillerson on March 13. Currently director of the Central Intelligence Agency, Pompeo, formerly a member of the U.S. House of Representatives, previously led the oil-field equipment company Sentry International and founded Thayer Aerospace. Pompeo is skeptical of climate change and would head the State Department as it represents the U.S. at international climate talks later this year. He has a B.S. in mechanical engineering from the U.S. Military Academy and a J.D. from Harvard Law School. Lisa Porter is Trump’s nominee to be deputy undersecretary for research and engineering at the Department of Defense. Porter is executive vice president of In-Q-Tel, the CIA’s venture fund, and director of In-Q-Tel Labs. She has a B.S. in nuclear engineering from MIT and a Ph.D. in applied physics from Stanford University. Peter C. Wright is

TWAIL – “Third World Approaches to International Law” and human rights: some considerations

TWAIL is both a political and intellectual movement and, therefore, has multiple perspectives. While the first academic conference of TWAIL was held at Harvard Law School in March 1997, Third World perspectives of international law are part of a long tradition of critical internationalism. In this essay we will try to explain the meaning of the movement according to its most important scholars, and the TWAIL concern to the human rights discourse. It can be said that according TWAIL the historical model of human rights cannot respond to the needs of the Third World except if there is a radical rethinking and restructuring of the international order, abandoning the efforts to universalize an essentially European corpus of human rights.

The Uneasy Case of a Psychographic Letter: Applying the Logocratic Method to the Brazilian System of Evidence

This paper offers a reading of the Brazilian case Public Prosecutor v. Iara Marques Barcelos under the Logocratic Method. This systematic epistemology-based method was developed by the Harvard Law School Professor Scott Brewer. It guides an analyst to assess the strengths and weaknesses of any type of argument, by helping to determine what degree of warrant the premises of an argument provide for its conclusion. This enterprise involves two main purposes. First, it aims to verify whether Brewer’s method actually may be applicable to the Brazilian legal system and, if the answer is positive, the accommodations it will require. Second, it aims to introduce a work of jurisprudence of logical form in the Brazilian legal scholarship and to draw attention of scholars and professionals about its importance. South American legal theorists have largely prioritized analytical and methodological jurisprudence under the influence of H. L. A. Hart and Ronald Dworkin, and have disregarded the role that tools of logical form play in improving the accuracy of the construction and the evaluation of interpretive and evidentiary arguments.KEYWORDS: logocratic method, jurisprudence of logical form.

Clerking for “God’s Grandfather”: Chauncey Belknap’s Year with Justice Oliver Wendell Holmes, Jr

Clerking for “God’s Grandfather”: Chauncey Belknap’s Year with Justice Oliver Wendell Holmes, Jr TODD C. PEPPERS IRA BRAD MATETSKY ELIZABETH R. WILLIAMS JESSICA WINN Introduction In the last twenty years, historians have discovered the Supreme Court law clerk. Although the first clerks were hired by the Justices in the 1880s, for much of their existence the clerks toiled in relative anonym­ ity. Law clerks emerged from the shadows, however, when Court scholars began to appreciate the value of studying them, not only because clerks were eye-witnesses to the internal workings of the Supreme Court, but also because the clerks had substantive job duties and arguably wielded influence over the decision-making process. Most of what we know about law clerks comes from the clerks themselves, usually in the form oflaw review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their ex­ periences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contra­ distinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer a real-time, unfiltered peek at the personalities who populated the bench and the issues with which the Court was grap­ pling. Just such a snapshot in time is provided by the diary of Chauncey Belknap, a remarkable Harvard Law School graduate who clerked for Justice Holmes during October Term 1915. Through Belknap’s near-daily records of his clerkship, as well as his encounters with the glittering social set of pre-war Washington, we are permitted a 258 JOURNAL OF SUPREME COURT HISTORY singular and fascinating glimpse into the colorful experience of working for one of the Court’s most famous jurists. A copy of the diary was obtained from Belknap’s long-time law firm, Patterson, Belknap, Webb & Tyler. While portions of the diary have appeared in other books and articles, the diary has neverbeen reproduced in its entirety.1 This is due, in part, to the fact that the diary is written in a combination ofcursive that varies in its readability and Pitman shorthand. Over a two-year period, two of the co-authors (Williams and Winn) carefully transcribed the diary. Once the transcription was complete, a Pitman shorthand expert was retained to translate the shorthand into English. Finally, all four authors had to agree upon words that were challenging to discern because of Belknap’s handwriting. If agree­ ment could not be reached, then the word was listed as “unintelligible” in the final text. As they transcribed the text, Williams and Winn researched and annotated Belknap’s references to people, places, and events. The text was subsequently edited to make format­ ting and style more consistent. For purposes of publication, an abridged version ofthe diary is presented here. The selected entries and portions of entries reflect the tone of the diary as a whole and highlight the significant events and conversations Belknap recorded. Brief identifications of persons mentioned and explanations of unfamiliar terms, as well as citations, are provided in the endnotes. Before one turns to the diary, some background on its author is necessary. Belknap was bom on January 26, 1891, in Roselle Park, New Jersey, to Chauncey and Emma McClave Belknap. The early years of his life were filled with hardship and loss. His father was a sales executive with the Thomson Houston Electric Company. When Belknap was two years old, his father died of yellow fever during a business trip to South America. Belknap’s mother died two years later of appendicitis. Thus, Belknap was effectively orphaned by the age of four. Relatives raised Belknap and his young sister, Fredericka.2 The young children went to live on the Upper West Side of Manhattan with maternal aunt Mary McClave, who was a school teacher. Living quarters were tight, and Belknap slept on the living-room couch. Many weekends were spent farther down­ town with his paternal aunts, Cornelia and Elizabeth Belknap, or with his uncle, Fred­ erick H...

Once More, with Feeling: The 'Tax Cuts and Jobs' Act and the Original Intent of Subpart F

For the first time since 1913, Congress is considering abandoning the principle that US residents should be subject to tax on all income “from whatever source derived.” Specifically, the House proposed tax reform legislation, the so-called “Tax Cuts and Jobs Act”, would completely exempt from US taxation dividends from “Controlled Foreign Corporations”. This is therefore a good occasion for considering the reasons we tax such dividends in the first place. In the course of investigating the Stanley Surrey papers at the Harvard Law School Library, we discovered a remarkable report that support the view that the main impetus behind Subpart F was to protect the U.S. corporate tax base. The report explains some of the problems encountered by the IRS in the international arena, and goes on to recommend limits on deferral. By doing so, it sheds some light on the “original intent” of Subpart F and its relation to territoriality. Finally, the paper explains why the Tax Cuts and Jobs Act international provisions would do little to prevent the kind of profit shifting that Subpart F was enacted to prevent and recommends to return to the original intent of Subpart F and subject foreign income to the same rate as domestic income.

Liberalism and the End of International Law?

As globalisation and Pax Americana replaced the cold war as a framework for thinking about things international, explicitly liberal ideas of international relations developed and gained momentum. Liberalism puts great emphasis on law, and it is therefore no coincidence that there has also emerged a liberal theory of international law (LiTIL). Liberal ideas can be traced to many writers of international law, but the articulated liberal theory of international law is associated with Anne-Marie Slaughter, professor of international, foreign and comparative law at Harvard Law School. Besides her law degree, Slaughter has a PhD in IR, and she started publishing at the time of the break-up of the Soviet empire, which does not seem coincidental. Slaughter’s writing builds on a few distinct ideas: International law should be based on developments in IR, i.e., on liberal IR, where the individual is the fundamental actor. There is a liberal zone of peace and law and a non-liberal zone of (potential) wars and politics, and legal relations in the liberal zone are different from relations with or within the non-liberal zone; In the liberal zone, international relations have changed fundamentally from the old Westphalian paradigm, to relations on three levels: the transnational level between individuals, the transgovernmental between governmental institutions – what she calls disaggregation of sovereignty - and the traditional inter-state level. This theory has been critiqued from several points of view: Andreas Behnke will deal with the IR underpinnings of her theory and their political implications, Outi Korhonen has analysed the epistomological theory implicit in liberal international law, Martti Koskenniemi has written about the relation between law and politics in liberal international law, the political theory implicit in liberal international law has been questioned by Susan Marks and the political implications of her legal theory will be covered in Linda Bishai’s presentation. My intention with this paper is to deal with the liberal theory of international law as a legal theory. That is, I want to see what it has to say about the foundation of law, the nature of law, and how we can determine what is valid law, all of which are questions which legal theories usually aim to answer. I will first present Slaughter’s theory, and then deal with the different implications of that theory from the perspective of whether it produces sound international legal theory.

Asking the Right Questions

Negotiation JournalVolume 33, Issue 4 p. 375-378 Original Article Asking the Right Questions Susan G. Hackley, Susan G. Hackley Susan G. Hackley: is the managing director of the Program on Negotiation at Harvard Law School in Cambridge, Massachusetts. Her e-mail address is shackley@law.harvard.edu.Search for more papers by this author Susan G. Hackley, Susan G. Hackley Susan G. Hackley: is the managing director of the Program on Negotiation at Harvard Law School in Cambridge, Massachusetts. Her e-mail address is shackley@law.harvard.edu.Search for more papers by this author First published: 18 October 2017 https://doi.org/10.1111/nejo.12204 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume33, Issue4October 2017Pages 375-378 RelatedInformation

Book Review: Keith B. Kerr, B. Garrick Harden, and Marcus Aldredge (ed.), David Riesman’s Unpublished Writings and Continuing Legacy

Book Review: Keith B. Kerr, B. Garrick Harden, and Marcus Aldredge (ed.), David Riesman's Writings and Continuing Legacy. Burlington, Vermont: Ashgate Publishing, 2015. ISBN: 978-1-472-42848-6 (Paperback). 293 Pages. $97.60.[Article copies available for a fee from The Transformative Studies Institute. E-mail address: journal@transformativestudies.org Website: http://www.transformativestudies.org ©2017 by The Transformative Studies Institute. All rights reserved.]With a little effort, one could imagine the Institute for Social Research at the Goethe University Frankfurt establishing a school in the US, at some point in the early 1950s, at which David would have played a significant role. This imaginary school, perhaps a sibling of The New School for Social Research, would include some teachers and researchers who were not as clearly connected to Hegelian and Marxist philosophy as those from the German school. During the intense decades of the Cold War, members like would tread gently around such controversies as the grand stand-off between socialism and capitalism, at least as much as they could, and would-perhaps for that reason-never be distinguished as one of the school's most serious theorists. Michael Maccoby was right to point out in the collection here under review that Riesman characteristically exchanged theory for thick description (186).Nonetheless, Riesman's work is a major contribution in the trajectories coming out of post-World War II critical theory, and his most famous and influential book, The Lonely Crowd (1950), should always accompany Theodor Adorno and Max Horkheimer's Dialectic of Enlightenment (1944) as the more US-centric social-psychological study of American society and culture. With the German critical theorists, shared a deep interdisciplinary interest in sociology, psychoanalysis, political-economy, and philosophy, although his research ultimately owes more to Freud and Fromm than to Hegel and Marx.David (1909 - 2002) was a sociologist, Harvard University professor, and influential writer. Before that, he attended Harvard Law School, and worked with the Harvard Law Review. After clerking for Supreme Court Justice Louis Brandeis, went on to work at universities in New York, Chicago, Connecticut, and Massachusetts. But what properly established as a major figure in American social science was the publication and reception of his single-most influential work, The Lonely Crowd. This book offered Riesman's study of the variations of pervasive conformity in people with inner-directed and other-directed personalities. But did much more than his most well-known research, and most of that vast research remains relatively obscure within the social sciences today. That is one of the key problems addressed by the recent publication of David Riesman's Writings and Continuing Legacy (2015), hereafter Unpublished Writings.It would be inaccurate to say that is only known for The Lonely Crowd. His commentary on changing American higher education, particularly his The Academic Revolution (1968), co-written with Christopher Jencks, was also widely read and reviewed. However, is lesser known for his political-economic essays, which could be found in the massive collection of essays, Abundance for What? (1964), and also for his sociability studies research, and his more sharply political and psychological interests in American society and US foreign policy. Writings, edited by Keith Kerr, B. Garrick Harden, and Marcus Aldredge corrects many of these latter problems of neglect. This is a valuable book for anyone already-interested and wellread in Riesman's work, as well as for anyone looking for an introduction to his life and research. Indeed, it is a peculiar and significant accomplishment of this volume that it would be just as gratifying for either audience, and I would recommend it to both. …

Board Declassification Activism: Why Run Away from the Evidence?

In a recently released paper, “Board Declassification Activism: The Financial Value of the Shareholder Rights Projects,” we investigated the effects on firm value of board declassifications promoted by the Shareholder Rights Project (SRP), a clinical program held at Harvard Law School for three academic years (2011-2014). Consistent with the results we obtained in our prior published work on staggered boards, we find a negative effect of SRP declassifications on firm value, both in absolute terms and relative to declassifications occurring at firms that were not targeted by the SRP over the same period. Economically, the negative effect of SRP declassifications corresponds to an average decline in financial value in the range of $0.96 - $1.6 billion per declassifying SRP target or, aggregated across the 93 SRP-declassifications included in our sample, an overall loss in the range of $90 - $149 billion. In a response note, Lucian Bebchuk and Alma Cohen “contest” our results, arguing that they do not provide a basis for opposing board declassification, when appropriately interpreted. This reply responds to the Bebchuk-Cohen critique. We show that not only their critique is unwarranted, but also fails to engage with our main finding that the plausibly exogenous shock caused by the SRP’s declassification activism was followed by substantial declines in firm value.

EL MÉTODO DE LOS CASOS EN LA PEDAGOGÍA JURÍDICA DE LOS EEUU: UNA VALORACIÓN SUBJETIVA

Since its introduction at Harvard Law School in the late 19th century, the case method has been the dominant teaching technique associated with American legal education. This article analyzes and contextualizes this pedagogical institution to provide a critical and current account of the method. First, the article situates the case law method as an organic part of a legal system built on judicial review, stare decisis, and legal uncertainty. Second, the article provides a technical analysis of how the case law method is intended to give law students a structured framework for absorbing, interpreting, and creating legal doctrine. Finally, the article situates the case law method in the context of a crisis in the popular legitimacy of legal education that may impact the future of this distinctive form of legal pedagogy.

El método de los casos en la pedagogía jurídica de los EEUU: una valoración subjetiva

Since its introduction at Harvard Law School in the late 19th century, the case method has been the dominant teaching technique associated with American legal education. This article analyzes and contextualizes this pedagogical institution to provide a critical and current account of the method. First, the article situates the case law method as an organic part of a legal system built on judicial review, stare decisis, and legal uncertainty. Second, the article provides a technical analysis of how the case law method is intended to give law students a structured framework for absorbing, interpreting, and creating legal doctrine. Finally, the article situates the case law method in the context of a crisis in the popular legitimacy of legal education that may impact the future of this distinctive form of legal pedagogy.

Territoriality and the Original Intent of Subpart F

On April 26, 2017, President Trump issued a one-page tax reform outline that included “territoriality,” i.e., exempting from tax dividends from the non-Subpart F income of controlled foreign corporations. Territoriality is also included in the House GOP “Better Way” Blueprint and was supported by the Obama Administration and in bipartisan legislation introduced in 2016 by Senators Rob Portman (R-OH) and Chuck Schumer (D-NY). Thus, of all the current tax reform proposals, it may have the best chance of being enacted, especially given that it is linked with imposing some tax on the past offshore earnings of US multinationals. In the course of investigating the Stanley Surrey papers at the Harvard Law School Library, I discovered an interesting document that can shed some light on the “original intent” of Subpart F and its relation to territoriality. The document shows that in Surrey’s view, the purpose of Subpart F was primarily to prevent shifting of profits from the US to low-tax foreign jurisdictions such as Switzerland. This task is needed to achieve CEN, protect the gold reserves in Fort Knox, and prevent non-taxation of US source income. The emphasis throughout is on the low tax level in the foreign country, because in the absence of such a low tax level, deferral does not confer meaningful tax benefits, and does not violate CEN, create balance of payments problems, or induce base erosion and profit shifting out of the US. Territoriality would exacerbate the profit-shifting problem by lifting the only current constraint on it, which is the difficulty of repatriating the offshore income. Surrey would be appalled at the current ability of Apple, Amazon, Google, Facebook and Microsoft to do exactly what he opposed in 1961, namely “license United States created patents and know-how” from tax haven CFCs without triggering US tax. Ideally, we should go back to the drawing board and adopt Surrey’s original 1961 proposal to abolish deferral. But since that seems politically impossible (even though the president proposed it during his campaign), we should at least do what every other OECD country that has CFC rules has done- combine territoriality with a strong minimum tax provision, either explicitly or by listing certain countries as tax havens. That, and not the current territoriality proposals, would “level the playing field” between US and foreign multinationals.

Board Declassification Activism: The Financial Value of the Shareholder Rights Project

For three academic years (2011-2014), the Harvard Law School’s Shareholder Rights Project (SRP) operated a clinical program assisting institutional investors on board declassification proposals. This paper analyzes the SRP as a quasi-natural experiment to examine the value implications of classified boards. Consistent with the SRP causing exogenous declassifications, SRP targets that declassified their boards had greater ex-ante value and profitability than non-targeted companies declassifying in the same period. Declassifying SRP targets, and especially targets more engaged in research and innovation, declined in firm value after declassification, which wealth effect is directly attributable to declassification rather than other activism-related channels.

Revised 'Common Rule' Shapes Protections For Research Participants.

Investigators and institutions have begun to prepare for new federal protections of study participants set to take effect in 2018.