Monthly Archives: February 2017

Apples and Oranges, Or Trusts and Wills.

Deborah Gordon, Forfeiting Trust, 57 William & Mary L. Rev. 455 (2015).

Wills and many trusts have the same fundamental purpose: to transfer property at death. This raises perennial questions about the extent to which the law should treat these estate planning vehicles as functionally equivalent. I liked Deborah Gordon’s Forfeiting Trust because it reminds readers that consequences flow from the simple but fundamental distinction between wills and trusts. Trusts have trustees, beneficiaries, and the accompanying rules of fiduciary duty. Wills do not. Therefore not all rules that work well for wills can be applied to trusts.

No contest clauses—also known as forfeiture clauses—are Gordon’s subject. In wills, testators have long used these clauses to deter litigation. The testator leaves property to individuals who may be inclined to challenge the will on the ground that it was executed without capacity or compliance with statutory requirements, or that it was the product of undue influence, or that it is otherwise invalid. Then the testator inserts a clause providing that anyone who challenges the will forfeits her bequest. A beneficiary can still challenge the will, but only at considerable risk. If the court enforces the will, it also enforces the no contest clause. Continue reading "Apples and Oranges, Or Trusts and Wills."

What Is It Like to Think Like a Pre-Modern?

Kenneth S. Abraham & G. Edward White, The Transformation of the Civil Trial and the Emergence of American Tort Law, Ariz. L. Rev. (forthcoming), available at SSRN.

There are a number of ways to tell the story of the change in American tort law that occurred in the nineteenth and twentieth centuries. Some, like John Witt, Lawrence Friedman, and Mort Horwitz, focus on changes in material conditions. Others, like Richard Posner, Charles Gregory, and Robert Rabin, focus on changes in intellectual or doctrinal beliefs about the nature of tort law, and the best mix of rules to achieve its ends.

In The Transformation of the Civil Trial and the Emergence of American Tort Law Kenneth Abraham and Ted White offer a fascinating and, I think, unique explanation for the rise of modern negligence law and the development of doctrines that allowed victims of accidents to collect for their personal injuries. Continue reading "What Is It Like to Think Like a Pre-Modern?"

Future Interests? Meet Chattels!

John Chipman Gray, Future Interests in Personal Property, 14 Harvard L. Rev. 397 (1901).

Future interests are at once docile creatures which accommodate all sorts of human and social objectives and beastly difficult abstractions which drive us to tears. Breaking property into smaller bits along temporal lines—such is the basic idea of present interests and future interests. Typically, we think of future interests (remainders, reversions, and the like) in the context of real property.

In 1901, John Chipman Gray (1839-1915) published a 23-page essay in the Harvard Law Review titled Future Interests in Personal Property. Its title was descriptive of its content. It considered the application of temporal divisions to chattels. In doing so, Gray’s article reviews an historical error connected with chattels real and chattels personal, observes the divergence of American law from English common law, and unearths a breakdown in doctrine where future interests are applied to consumable articles. His article remains lively and relevant today. Continue reading "Future Interests? Meet Chattels!"

How Pigouvian Taxes Work on Sellers, and Why We Should Care

Kyle Rozema, Supply Side Incidence of Consumption Taxes (Oct. 5, 2016), available at SSRN.

Empirical testing of the tax laws, and in particular testing the incidence of the tax laws, may sound boring. But virtually any modern public policy goal that could be implemented through tax policy ultimately turns precisely on this question. For example: Should the United States adopt a tax on sugary drinks? Is a high cigarette tax effective in preventing smoking deaths? Would a carbon tax help to reduce global warming? Ultimately, the answers to these questions turns on who, in fact, ends up bearing the burden of these taxes.

Such proposals often represent forms of so-called Pigouvian taxes. Proponents of Pigouvian taxes support them by contending that they can be used to reduce inefficient behavior by forcing consumers to internalize the full costs of such activities. Opponents of Pigouvian taxes often point to the regressive effect of such taxes on consumers, because they increase the cost of goods by a fixed amount of taxes, which disproportionately harms those consumers least able to afford such taxes. A fair amount of literature has arisen to resolve this question, primarily focusing on the empirical question of whether increasing the price of certain goods through higher taxes in fact reduces the amount of consumption and who bears the costs of such taxes. Virtually none of the literature in this area asks a related, but equally important, question: how do Pigouvian taxes impact different types of sellers of such goods? Continue reading "How Pigouvian Taxes Work on Sellers, and Why We Should Care"

Property Governance Through Resistance: Subversive Property Explores Progressive Potential for Property Outsiders to Re-create Spaces of Belonging and Propriety

Research exploring the intersections of law, property, and society through jurisdictional and international lenses has flourished in the last decade in response to a pressing need for analytical insights into the property problems that dominate much of our current political discourse. Debates about access to places and spaces, linked to a concern around “who belongs” in our countries, in our communities, and in public spaces and private places, raise important questions about the role that property plays in enabling exclusion or inclusion, particularly for marginalised “outsiders.”

Against this backdrop, Sarah Keenan’s new book has come along at a crucial moment. It offers an insightful analysis into how property rules prevent marginalised or outsider groups from developing a sense of belonging in places that are dominated by, and governed through, an insider norm. Continue reading "Property Governance Through Resistance: Subversive Property Explores Progressive Potential for Property Outsiders to Re-create Spaces of Belonging and Propriety"

Toward a Universal Understanding of the Value of Legal Research Education

Learning the substantive law has always been the foundation of a legal education. As job prospects for attorneys tightened, a focus on practitioner skills began trending in legal education. There is an expectation that law schools will produce practice-ready attorneys. Despite this expectation, why are Johnny and Jane unable to research?

Professor Caroline L. Osborne’s research findings have confirmed what many legal educators surmise about the state of legal research education. Her findings demonstrate that legal research education is undervalued in law schools. “For those involved in legal education, the goal is to provide students with the tools they need to succeed . . . . ” (P. 407.) In a carpenter’s arena, the value of the hammer is universally understood. The value of legal research as an essential tool of the legal trade, on the other hand, is not well understood in legal education. This lack of understanding persists, despite the MacCrate report and its ilk, codified ethical obligations of attorneys, and promulgated research competency standards. With this in mind, Professor Osborne presents each contributing factor to the devaluation of legal research education so that the reader is equipped to ponder solutions. Continue reading "Toward a Universal Understanding of the Value of Legal Research Education"

Faustian Bargain? American State Formation and the Crisis of Legitimacy

As a field, legal history has long been centrally concerned with the patterns and trajectories of American political development and state formation. In his recent book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton University Press, 2015), Gary Gerstle offers a compact and highly readable synthesis of the long arc of the battles over the idea of a strong and central American state, from the constitutional founding through recent clashes between the Obama administration and the Tea Party. Gerstle and his work are of course well-known in the field. In this new book, he offers a cautionary narrative about this long process of state formation, and how it has set in place pathologies that fuel recurring crises of governance and legitimacy.

The central premise of the book is that there is a fundamental tension baked into the legal and constitutional structure of American government: the congenital unease with a powerful state on the one hand (“liberty”) and the starting premise of unchecked “police power” on the part of state governments (“coercion”) on the other. A powerful federal state was, in theory, at odds with both of these principles, endowed with specific enumerated powers in the Constitution rather than general police powers, and restrained by both constitutional and normative commitments to individual liberty. Law and the Supreme Court play a central role in Gerstle’s narrative, as the source of the original constraints on expansive federal power—and thus the key arena in which statebuilders had to innovate forms of modern, centralized governance that could navigate these tensions between liberty and coercion. In Gerstle’s account, the federal government gained its modern powers only in response to a trio of crises that prompted shifts in the basic structure of governance: the Great Depression, the “total war” mobilization of World War II, and the civil rights movement. As a result, the federal government suddenly found itself possessing a degree of fiscal and legal authority previously unknown in the early republic. Continue reading "Faustian Bargain? American State Formation and the Crisis of Legitimacy"

Eight Is Enough

In February 2016, shortly after the death of Justice Antonin Scalia, progressives, including progressive law professors, salivated at the prospects for the Supreme Court. President Barack Obama would fill a vacancy (the third of his presidency and the same number Reagan had appointed), shifting a 5-4 conservative Court to a 5-4 liberal Court. And with the expected election of Hillary Clinton to potentially replace three Justices who were 78-years-old or older, a 6-3 liberal Court—unseen since the 1962-68 heyday of the Warren Court—seemed possible. Visions of vigorous liberal constitutionalism, especially on “Culture War” issues, danced in the heads of constitutional scholars and advocates.

It was not to be, of course. Those dreams died in stages, with first the success of Senate Republicans’ 300-day inaction on President Obama’s nomination of Merrick Garland, then Donald Trump’s unexpected election in November 2016, then his January 2017 nomination of Tenth Circuit Judge Neil Gorsuch to fill the vacancy.

Although a self-described progressive, Eric Segall spent this interregnum attempting to steer the conversation and the political process in a different direction. In Eight Justices Are Enough (a paper I read and commented on in draft), the culmination of a series of op-eds, blog posts, and talks, Segall argues that Congress should permanently establish the status quo since Scalia’s death that may continue for the duration of the current Term: An eight-Justice Court, evenly divided between Democratic and Republican appointees. Each seat would be designated (or at least understood) as “belonging” to that party and to be filled by a nominee of that same party, regardless of the appointing President. In essence, Segall argues, the Supreme Court should be staffed the same way as the Federal Election Commission or the Court of Appeals for the Armed Forces (a non-Article III court). Continue reading "Eight Is Enough"

A Revival of Historic Jurisprudence?

  • Dan Priel, Holmes’s ‘Path of the Law’ as Non-Analytic Jurisprudence, 35 Univ. Queensland L.J. 57 (2016), available at SSRN.
  • Markus D. Dubber, New Historical Jurisprudence: Legal History as Critical Analysis of Law, 2 Critical Analysis of Law 1 (2015), available at SSRN.

Of late there has been a notable burst of attention to the interaction between history and legal theory generally, and historical jurisprudence specifically. This includes a symposium in the Virginia Law Review last year on Jurisprudence and (Its) History, and a forthcoming book, Law in Theory and Jurisprudence, both with contributions from prominent scholars. What makes this noteworthy is that decades ago historical jurisprudence itself was consigned to the dustbins of history. As Brian Bix declares in his leading Jurisprudence text, “historical jurisprudence has largely disappeared.”

Historical jurisprudence emerged in the nineteenth century in the influential writings of Friedrich von Savigny and Henry Maine. It revolved around the insight that law evolves over time in connection with surrounding social, cultural, economic, political, and technological influences. Law at any moment in any place is the cumulative product of the history of its society (including interaction with external influences).1 At the turn of the twentieth century, historical jurisprudence and legal positivism were the two main rival branches of jurisprudence, with natural law theory a distant third. Writing in 1906, prominent American jurist Melville Bigelow observed, “Two distinct schools have in succession held the field, more or less, of legal education in English and American law, the analytical of Bentham and Austin and the historical school.” Soon after Bigelow uttered these words, however, historical jurisprudence seemingly expired, not to be heard from again—until now. Dan Priel’s Holmes’s ‘Path of the Law’ as Non-Analytic Jurisprudence and Markus Dubber’s New Historical Jurisprudence: Legal History as Critical Analysis of Law explicitly advocate a revival of historical jurisprudence. Continue reading "A Revival of Historic Jurisprudence?"

Justice Breyer’s Radically Pragmatic approach to Transnational Law

Justice Stephen Breyer, The Court and the World (2016).

Justice Stephen Breyer’s The Court and the World (also the basis of his Jorde lecture) [hereinafter TCW] is an important book. Every legal scholar should read it, because it makes the case, clearly and compellingly, that international, comparative and transnational law are increasingly central to the fabric of American legal practice.

At the heart of TCW are two central concepts: “foreign” and “interdependence.” The basic argument of the book, illustrated through many examples, is the claim that the “foreign” is of increasing relevance to the Supreme Court because of the increasing “interdependence” of the United States to other jurisdictions. I want to suggest that TCW sets out two different accounts of what foreign and interdependence are, and hence, two distinct senses of how they are interrelated. Continue reading "Justice Breyer’s Radically Pragmatic approach to Transnational Law"