Yearly Archives: 2014
Aug 8, 2014 Phyllis C. TaiteTrusts & Estates
Robert H. Sitkoff,
Trusts and Estates: Implementing Freedom of Disposition, 58
St. Louis U.L.J. 643 (forthcoming, 2014), available at
SSRN.
Professor Robert Sitkoff’s article, Trusts and Estates: Implementing Freedom of Disposition, provides practical information and addresses major themes for professors teaching trusts and estates including intestacy, wills, trusts and planning for incapacity. It is a wonderful primer for professors and students new to the area of estates and trusts. For the more seasoned professors, Professor Sitkoff provides policy questions that will certainly provide an opportunity for healthy debates amongst the students. There are only a handful of articles that explicitly address trusts and estates pedagogy; this article does not simply summarize the curriculum, but rather it encourages law faculty to think in a big picture way about the overarching issues. As such, it is an important contribution to the scholarly literature.
Professor Sitkoff suggests that the subject be viewed through the lens of “freedom of disposition,” in contrast to the more traditional approach that usually proceeds according to methods of succession (probate succession by will and intestacy, and non-probate succession by inter vivos trust, pay-on-death contract, and other such will substitutes). While recognizing there are limitations on the freedom of disposition, he convincingly argues that law and policy start with this premise and that our analysis of them should also start that way. The priority, in a property transfer transaction, is placed on the intent of the transferor over the putative rights of the recipient of the property, whether the property passes via intestacy, will, trust, or nonprobate transfer. Continue reading "Teaching Trusts and Estates"
Aug 6, 2014 Ellen BublickTorts
Who cares about tort defenses, or as Australian turned Englishman James Goudkamp spells it, “defences”? The decline in the potency of tort defenses over the last century, their only occasional use in actual litigation, their atrophy in contrast to the robust elements of negligence law, their lack of specificity to tort, their definition as second-tier questions, and their frequent specification by statute rather than common law—all have resulted in a fairly undersized group of interested scholars, according to Goudkamp. But for those of us who, nevertheless, maintain an interest in the topic, Goudkamp’s book is a must read.
At the start, after considering rival definitions, Goudkamp defines a tort defense as a device which “relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present.” Then, through a vivid series of case examples, Goudkamp differentiates defenses from denials of an element of plaintiff’s prima facie case. Once separated, Goudkamp divides defenses into two mutually-exclusive sets: justification defenses and public policy defenses. In the first group “the defendant acted reasonably in committing a wrong.” Included within this group are defenses such as self-defense, consent, and public necessity. In the second, the defendant “makes no claim whatsoever about the justifiability of his acts,” but should not face liability anyhow. To this category, Goudkamp assigns defenses such as absolute privilege, various immunities and limitation bars. In addition to this dual taxonomy, Goudkamp ultimately argues for a third category which he terms “denials of responsibility,” and distinguishes them from excuses, for infancy and insanity. Continue reading "In Defense"
Aug 5, 2014 The EditorsCriminal Law
Continue reading "Dan Markel"Aug 5, 2014 Theodore P. SetoTax Law
Susannah Camic Tahk,
Public Choice Theory & Earmarked Taxes,
N.Y.U. Tax L. Rev. (forthcoming, 2015), available at
SSRN.
In 1980, James Q. Wilson, in The Politics of Regulation, predicted that laws with diffuse costs and concentrated benefits would be relatively easy to enact, but that laws with concentrated costs and diffuse benefits would be relatively hard to enact and, once enacted, hard to maintain. This hypothesis, one of the pillars of public choice theory, has long been asserted without empirical verification. Indeed, in 1994, Donald Green and Ian Shapiro, in Pathologies of Rational Choice Theory, challenged the willingness of theorists to accept such unverified predictions as true: “The discrepancy between the faith that practitioners place in rational choice theory [of which public choice theory is a branch] and its failure to deliver empirically warrants closer inspection of rational choice theorizing as a scientific enterprise.” In Public Choice Theory & Earmarked Taxes, Susannah Camic Tahk provides the first rigorous empirical support for Wilson’s hypothesis.
Her study explores the histories of 1497 state-level earmarked taxes between 1997 and 2005. Earmarked taxes, in general, produce more concentrated benefits than taxes the proceeds of which flow into a state’s general fund. Thus, we would expect earmarked taxes to perform strongly as revenue generators. And, indeed, Tahk finds that the earmarked taxes in her sample raised 58.39% more revenue in 2005 than in 1997—a larger percentage increase than any major federal tax over the same period. Continue reading "An Empirical Test of Public Choice Theory"
Aug 4, 2014 Jan PaulssonLexInternational Arbitration
Although its publication may come a bit late for our summer reading, Professor Michael Reisman’s Herch Lauterpacht Memorial Lectures have finally (with the co-authorship of Christina Skinner) been released by CUP in the form of a long-awaited 222-page monograph, including a detailed and valuable index. Occasionally the passage of a decade (in this case somewhat more) between the spoken word and its reformulations in print leads to an attenuation of the bluntness of the message. Innocents whose sensibilities with respect to the realities of international adjudication may have been assaulted in the course of those three wintry evenings in Cambridge can now verify that the carryings-on reviewed by the authors are still captured with uncompromising directness, as the subtitle suggests. Given the essentially consensual nature of all international adjudication, this study should be given concerned attention in relation not only to permanent courts but also to arbitrators whose mandate is limited to a single case.
On one view, we really shouldn’t be the least shocked. After all, States repeatedly find it legitimate to put their own soldiers in harm’s way, and presumably think the slaughter of young people from neighboring countries is justified, in order to secure territorial ambitions or to maintain what they think of as their “credibility”. What then is a bit of forged evidence (or even a case entirely based on it) among urbane friends, when used for the same purpose but on the legal battlefield? Continue reading "Is There Any Disincentive to Deceiving an International Court or Tribunal?"
Aug 1, 2014 Carole SilverLegal Profession
Andrew M. Perlman,
A Behavioral Theory of Legal Ethics, 90
Ind. L.J. (forthcoming 2014), available at
SSRN.Andy Perlman’s timing couldn’t be better. His new article, A Behavioral Theory of Legal Ethics, comes out just as negative reports of lawyers’ conduct are front page news again, this time as part of the GM story. The company’s lawyers failed to save their business and engineering colleagues from disastrous decisions; in fact, their conduct may have hindered GM from addressing problems systemically. While corporation counsel generally are not the sole check on ethical and competent decision making by company insiders, they certainly are positioned structurally to a framework that is intended to lead to good decision making. But it is not just corporate lawyers who are an issue for ethical conduct, of course. Prosecutors’ failure to reveal exculpatory evidence is a continuing concern, tax lawyers’ gaming the tax shelter system is the topic of a new book by Mitt Regan and Tanina Rostain (Confidence Games), and there are many more examples.
What makes Perlman’s article so timely is not simply the focus on lawyers’ failed judgments but his connection of these to a fundamental problem with the theory underlying legal ethics. This connection provides a larger context for considering ethical failures, moving beyond the particular characteristics of an individual to a general framework that spans lawyers’ individual differences and practice settings. According to Perlman, the theoretical foundation of legal ethics assumes that lawyers “are simultaneously capable of partisanship on behalf of clients while remaining sufficiently objective to ensure that their own conduct is ethical.”(p.6) In fact, the Model Rules of Professional Conduct obligate both partisanship (“in the sense of being aligned with a particular side of a matter” (p.6)) (see, for example, Model Rules of Professional Conduct 1.2) and the ability to consider the consequences of being a partisan in the context of obligations owed to non-clients (see, for example, Model Rules of Professional Conduct, Preamble and Scope (“Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.“). Nevertheless, this tension has not been adequately explored, according to Perlman: “Rarely,” he writes, do legal ethicists “discuss[] … whether this assumption relies on an accurate model of human behavior.” (p.11) It is just such a disconnect that has been identified as underlying the failings of GM’s lawyers according to a New York Times report, which commented that “It is not clear whether any of G.M.’s lawyers even recognized there was an issue with how they were representing the company. Nor is it clear that they considered whether they needed to take action to protect it from greater harm.” Continue reading "Introducing a Dose of Reality: Broadening the Perspective of Legal Ethics to Include Social Science Research"
Jul 30, 2014 Elizabeth DaleLegal History
These days, I think a lot about police torture.
To be more precise, these days I am wrestling with problems of how to “prove” police torture occurred. And that’s why I recently read Kim D. Chanbonpin’s article “Truth Stories: Credibility Determinations at the Illinois Torture Inquiry and Relief Commission.”
The question at the heart of the problem I am struggling with is straightforward enough: How can one evaluate a claim of police torture when the only source of the claim is the alleged victim and when the police and prosecutors categorically deny that anything occurred? Continue reading "Patterns and Practices"
Jul 29, 2014 Barbara LevenbookJurisprudence
This is a provocative and important essay that has implications Solum doesn’t spell out for some positions on meaning, communication, statutory interpretation, and the understanding—sometimes called the “construction”—of statutory texts. Solum is interested in communicative content, principally of directives. Most of his examples are of legal directives, or as he prefers to describe them, legal rules.
Solum begins with an important distinction between communicative content, the kind of meaning he is interested in discussing, and legal meaning, the legal contribution a text makes in its particular legal system. It is not uncommon for discussion of statutory interpretation to conflate the two or to focus entirely on the latter, but this is a mistake. In some legal systems, such as in the United States, the communicative content of a statute can cause it to fail to make any legal contribution (because, for example, the statute is unconstitutional). So getting clear on communicative content is a prolegomena to getting clear on much of statutory interpretation. Solum aims to make a significant contribution to this task by illuminating the lack of connection between communicative content, intention, and the mental states of individual legislators. Continue reading "Meaning, Intention, and Mental States"
Jul 28, 2014 Jason SchultzIntellectual Property Law
Empirical studies of creative communities continue to provide scholars and policymakers with useful evidence for assessing intellectual property regimes. In Seven Commandments, we find yet another excellent example of the type of evidence we need to know and, perhaps even more importantly, robust methods for gathering it.
The article reports on a study of Threadless, an online community that crowd-sources t-shirt designs. As with many such communities, it uses a combination of collaborative and competitive elements, allowing users to work together on certain projects while also competing with each other for approval, funding, and ultimately production and distribution of the designed apparel. The authors of the paper seek to study the IP norms of the Threadless community in order to understand what makes it succeed in terms of incentives to create. In particular, they note that because formal enforcement of copyright law is generally difficult if not impossible on such sites, normative systems are presumed to play the major role in protecting the investment of creators. Continue reading "From Crowd-Sourcing to Crowd-Enforcing: An Empirical analysis of Threadless’s Community IP Norms"
Jul 25, 2014 Carlos BallFamily Law
Relationship recognition has been at the center of reform efforts in family law for the last two decades. Scholars and advocates alike have focused intently on the need to provide recognition and support for a variety of relationships that the law has traditionally ignored. These include the relationships of not only same-sex couples, but also of cohabiting couples, nonmonogamous groupings, and friends. The reform proposals have assumed that legal recognition brings with it economic benefits.
In a fascinating new article, Erez Aloni questions this assumption by highlighting the interplay between two considerations: first, it is sometimes the case that nonrecognition of relationships can have financial benefits for their members; second, the state sometimes recognizes relationships in the absence of a request by either party—what Aloni labels “purely ascriptive recognition”—for the limited purpose of determining eligibility for particular benefits. In most cases of purely ascriptive recognition, if the combined income exceeds a certain amount, then the individuals become ineligible for the benefit in question. When the two considerations are brought together, we are left with forms of legal recognition that cause financial harm. Continue reading "Recognition Without Consent"
