Two Harvard Law School professors have been appointed to faculty chair positions: Jody Freeman LL.M. ’91 S.J.D. ’95 is the Archibald Cox Professor of Law, and Henry Smith is the Fessenden Professor of Law. Freeman and Smith took their new chairs on July 1.
Jody Freeman returned to the Harvard Law School faculty in March after serving in the White House as Counselor for Energy and Climate Change. In that role, she contributed to a variety of policy initiatives on energy and climate issues, including renewable energy, energy efficiency, greenhouse gas regulation, and the pursuit of comprehensive energy and climate legislation that would put a market-based cap on carbon emissions. She played a lead role in the negotiation of the historic national auto agreement, which set the first ever greenhouse gas standards for cars and trucks. A pivotal scholar of administrative and environmental law, Freeman resumed her role as director of the Law School’s Environmental Law Program, which she founded in 2006, and she launched one of the nation’s top environmental law and policy clinics, the Emmett Environmental Law Policy Clinic, directed by clinical professor Wendy Jacobs, ’81.
Dean Martha Minow commented, “We are thrilled to be able to welcome Jody Freeman back from her public service in Washington. How fitting that she now holds the chair that honors Archie Cox, the great exemplar of public service, independence, and integrity in the tradition of service of the public.”
The Archibald Cox Professorship was created in 2008, with funding from the contributions of Robert K. Weary ’48, given to HLS in the 1990s. The chair is named for former Solicitor General and Watergate Special Prosecutor Archibald Cox ’37. Cox, who was dismissed from his post for pursuing the secret White House tapes created during the administration of President Richard M. Nixon. An expert in administrative law, constitutional law, and labor law, Cox participated in key cases before the United States Supreme Court dealing with reapportionment, desegregation, voting rights, publicly financed elections, and affirmative action.
Jody Freeman’s major works in administrative law include: “The Private Role in Public Governance,” 75 NYU L. Rev. 543 (2000), for which she received the annual scholarship award from the American Bar Association’s Section on Administrative Law and Regulatory Practice for the single best article in the nation on administrative law; “Extending Public Law Norms Through Privatization,”116 Harv. L. Rev. 1285 (2003); “The Contracting State,” 28 FLA. St. U. L. Rev. 155 (2001); and “Collaborative Governance in the Administrative State,” 45 UCLA L. Rev. 1 (1997). Her environmental law scholarship includes: “Timing and Form of Federal Regulation: The Case of Climate Change,” 155 U. Penn. L. Rev. 1499 (2007); and “Modular Environmental Regulation,” 54 Duke L. Rev. 795 (2005).
Freeman is the co-author of a leading casebook in environmental law (with Daniel Farber and Ann Carlson) and has produced two other significant books: “Moving to Markets in Environmental Regulation: Lessons after Twenty Years of Experience” (Oxford University Press 2006, edited with Charles Kolstad) and “Government by Contract: Outsourcing and American Democracy” (Harvard University Press, 2009, edited with Harvard Law School Dean Martha Minow). In 2006, Freeman authored an amicus brief on behalf of former Secretary of State Madeleine Albright, in MA v. EPA, the global warming case decided by the Supreme Court in 2007. Her analysis of the implications of the case, “Massachusetts v. EPA: From Politics to Expertise” (with HLS Professor Adrian Vermeule), appears in the 2007 Supreme Court Review.
An expert in property, intellectual property, natural resources, and taxation, Henry E. Smith joined the HLS faculty in 2009. His inventive and wide ranging scholarship includes: “Community and Custom in Property,” 10 Theoretical Inquiries in Law 5 (2009); “Intellectual Property as Property: Delineating Entitlements in Information,” 116 Yale Law Journal 1742 (2007); “The Language of Property: Form, Context, and Audience,” 55 Stanford Law Review 1105 (2003); and “Exclusion versus Governance: Two Strategies for Delineating Property Rights,” 31 Journal of Legal Studies S453 (2002).
Smith is the co-author with Thomas W. Merrill of “Property: Principles and Policies,” a casebook on property law and co-author with F. Scott Kieff, Pauline Newman, and Herbert F. Schwartz of “Principles of Patent Law: Cases and Materials” (Foundation Press 4th ed. 2008). His forthcoming works include “Institutions and Indirectness in Intellectual Property,” University of Pennsylvania Law Review, and “Mind the Gap: The Indirect Relation between Ends and Means in American Property Law,” Cornell Law Review. He serves on the board of advisors for the Journal of Law, Economics, and Policy and leads a new initiative in private law theory at Harvard Law School.
Dean Martha Minow noted, “I am so delighted to be able to recognize Henry Smith’s remarkable intellectual depth and breadth as we award him one of our oldest and most distinguished chairs.”
Upon his death in 1931, Franklin G. Fessenden LL.B. ’1872 left one third of his residual estate to Harvard, stipulating that the money, “be invested and held by them until with the accumulations of income therefrom…shall in their opinion be sufficient for the establishment and maintenance of a full professorship…This I do in grateful recognition of what that Law School has done for me.” The Fessenden Professorship was created in 1941. A lawyer in Fitchburg, Mass., Fessenden was appointed to the Superior Court of Massachusetts in 1891, a post he held until his retirement from the court in 1922.
Before coming to HLS, Smith held a joint appointment as the Fred A. Johnston Professor of Property and Environmental Law and as professor of cognitive science at Yale Law School. Smith earned his J.D. from Yale Law School in 1996, winning the Benjamin Scharps Prize for best third-year paper. After law school, he clerked for the Honorable Ralph K. Winter, United States Court of Appeals for the Second Circuit.
In addition to his legal scholarship, he also holds a Ph.D. in linguistics from Stanford University. Prior to attending law school, he taught linguistics at the University of Chicago and at Indiana University in Bloomington. Smith holds an A.B. from Harvard University.