Monthly Archives: February 2020

Deconstructing Foundational Principles of Trusts and Estates Law

Naomi R. Cahn, Dismantling the Trusts and Estates Canon, 2019 Wis. L. Rev. 165 (2019).

All areas of the law have certain foundational principles or beliefs that are widely shared. These underlying assumptions often go unchallenged. In the trusts and estates field, these principles include: (1) giving a certain amount of ongoing control to the transferor, or in the case of a decedent, to the “dead hand,” (2) respect for formality, (3) the importance of the traditional, legally-recognized family, and (4) the “wealth” narrative that focuses on the transmission of conventional forms of wealth.

In her thought-provoking article, Professor Naomi Cahn challenges these underlying principles. She, correctly, I believe, identifies the wealth narrative as the “strand…that structures the rest of the field.” For example, she notes that dead-hand control is only important when a decedent dies with wealth to be transferred, and she analyzes how wealth helps transfer privilege and maintain the status quo. Professor Cahn also looks at who has wealth and recognizes that the sociodemographic diversity of who has wealth impacts this area of law. She seeks to get her readers to challenge the foundational principles of the field by considering new perspectives from race, gender, class, and sexual orientation. Continue reading "Deconstructing Foundational Principles of Trusts and Estates Law"

The Cute Contracts Conundrum

David Hoffman, Relational Contracts of Adhesion, 85 Univ. of Chicago L. Rev, 1395 (2018).

When considering online contracts, three assumptions often come to mind. First, terms of service and other online agreements are purposefully written to be impossible to read. Second, lawyers at large law firms create these long documents by copying them verbatim from one client to another with minimal tweaking. But third, none of this really matters, as no one reads these contracts anyway.

David Hoffman’s recent paper Relational Contracts of Adhesion closely examines each of these assumptions. In doing so, Professor Hoffman provides at least two major contributions to the growing literature and research on online standard form contracts. First, he proves that these common assumptions are, in some cases, wrong. Second, he explains why these surprising outcomes are unfolding. Continue reading "The Cute Contracts Conundrum"

The High Cost of Exclusionary Zoning

Robert C Ellickson, Zoning and the Cost of Housing: Evidence from Silicon Valley, Greater New Haven, and Greater Austin, available at SSRN.

An article about the cost of housing may seem a surprising choice as one of the year’s best environmental law articles. But there are good reasons for it: Housing costs in major coastal metro areas in the United States are soaring. Strong evidence suggests that the stringent of land-use regulations is a major contributor to those price increases Some commentators also consider state-level environmental review laws, such as the California Environmental Quality Act, among those stringent land-use regulations – thus implicating environmental law as a cause of the housing crisis. At the same time, transportation is one of the primary contributors to greenhouse gas emissions in the United States, and is the largest single sector now in California. Addressing emissions from transportation requires a reduction in vehicle miles travelled by Americans, which in turn requires densification of the built landscape to facilitate walking, biking and public transit use. But densification may be difficult or impossible in the face of soaring metro housing costs and stringent land-use regulations that obstruct redevelopment.

Ellickson’s piece provides a timely contribution to both of these debates, because it provides something that has been sorely lacking in the debates over how land-use law shapes housing policy and the built form: Data on how the land-use regulatory system actually operates in practice. Up to now, most of the literature (whether economic, planning, or law) that has tackled how land-use regulation operates on the ground has been either speculative, or it has relied on surveys of developers and planners. This is in part because the local nature of land-use regulation in the United States, combined with its sometimes extreme complexity in local jurisdictions, makes data collection expensive and difficult. Surveys attempt to elide this issue by asking for perceptions or knowledge of land-use regulation by actors (planners and developers) who should know much about the topic, but they may not always accurately reflect the realities of land-use regulation on the ground. But if we want to solve the problems of housing cost and greenhouse gas emissions from transportation, we need to have good data on the true nature of land-use regulation is in the United States. Continue reading "The High Cost of Exclusionary Zoning"

It’s “Executive Power,” Not “Executivish Power”

  • Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019), available at MLaw Repository;
  • Julian Davis Mortenson, The Executive Power Clause, 167 U. Pa. L. Rev. (forthcoming), available at  SSRN.

Maybe you have been wondering, for one reason or another, just what the “executive power” entails. If so, you are in luck, for Professor Julian Davis Mortenson has an answer for you in two magisterial, deeply researched articles that also happen to be compelling reads: Article II Vests Executive Power, Not the Royal Prerogative, and its sequel, The Executive Power Clause. It turns out that “The executive power meant the power to execute. Period.” (Executive Power, P. 5.)

It will come as no news to readers of this website that, about a quarter of a millennium ago, Article II of the Constitution vested the “executive power” of the United States in the president. And ever since that time, Americans have been arguing about just what this “executive power” entails. In truth, it seems this debate is likely to last as long as the Republic does—which suggests that the debate sometimes says as much about the debaters as their subject. Continue reading "It’s “Executive Power,” Not “Executivish Power”"

A Return to First Principles: Class Actions & Conservatism

Brian T. Fitzpatrick, The Conservative Case for Class Actions (2019). 

For decades, most opposition to class actions in the United States has come from the political right. Corporations on the receiving end of class action lawsuits have hired lobbyists and lawyers to restrict the availability of class actions, through legislation such as the Class Actions Fairness Act and by successfully arguing for narrow judicial interpretations of Federal Rule of Civil Procedure 23. If the pendulum has swung toward ‘killing’ the modern class action in the United States, it is conservatives who have pushed it.

For this reason, Brian Fitzpatrick’s The Conservative Case for Class Actions offers a unique contribution to political debates over class actions. A self-described card-carrying member of the Federalist Society and former clerk to Justice Antonin Scalia, Fitzpatrick argues that “class action lawsuits are not only the most effective way to hold corporations accountable; they are also the most conservative way to hold them accountable.” This contention rests on two basic premises: what is “good for conservative principles may be bad for big corporations” and “the private sector is better at doing most everything than the government is.” He persuasively supports the first premise as a matter of principle and history: Republicans acknowledge that some rules are necessary (like laws against fraud or anti-competitive behaviour), and conservative principles have not always aligned perfectly with the interests of big business. He defends the second premise by exploring the options for enforcement and empirically showing that the conservative preference for private enforcement is justified: the private sector is better than the government at detecting misconduct and enforcing the law. Continue reading "A Return to First Principles: Class Actions & Conservatism"

Whitewashing the Rural: How Cultural Views Influence Access to the Justice System for Communities of Color

When you picture the rural, what does it look like to you? Perhaps you think of cowboys and the Wild West or Midwestern farmers or coal miners in Appalachia. When you think of the characters that inhabit your mental image, aren’t they White? This is the widespread image that Maybell Romero challenges in her recent law review article, arguing that such a homogenously White perception of rural spaces has significant institutional impacts for people of color living in these areas. Romero uses her article to advocate for mandatory cultural competency trainings and data collection in rural prosecutorial offices. Proper collection and analysis of this data will help shed light on the extent of racial disparities in the rural criminal justice system. Romero also challenges us to view rural areas with more nuance; they are not the racially monolithic places that inhabit most Americans’ perceptions. Expanding our racial view of the rural will help us adopt a “thicker”1 definition of justice, one that truly serves all those living in rural communities.

Romero notes that in pop culture, rural America is often conceptualized in one of two dichotomous ways. The rural is either an Andy Griffith-esque heartland of traditional American values or it is a lawless wasteland characterized by drug-addiction and violence. The thing both of these conceptualizations share is that the inhabitants of both are exclusively White. The focus of Romero’s article is rural Maine, a place that many Americans would expect to be almost entirely homogenous. When considering challenges faced by rural Mainers, people of color are very often overlooked or forgotten completely. Continue reading "Whitewashing the Rural: How Cultural Views Influence Access to the Justice System for Communities of Color"

Legal Elites Serving the Poor (or Not?)

  • Atinuke Adediran, The Relational Costs of Free Legal Services, 55 Harv. C.R.-C.L. Rev. __ (forthcoming, 2020), available at SSRN.
  • Atinuke Adediran, Solving the Pro Bono Mismatch, __ U. Colo. L. Rev. __ (forthcoming, 2020), available at SSRN.

One of the things that struck me most early on in law school was the notion that some paths were considered more elite and desirable than others. I simply didn’t understand why my classmates were obsessed with particular opportunities. That was, until I attended a diversity reception at a large law firm during my first year, where someone mentioned the starting salary for lawyers (at the time $125,000). Suddenly, I understood why law students seemed so desperate to secure jobs at large law firms after graduation.

As it turns out, those running elite, large law firms understand that some law students experience a conflict when deciding on what path to take after graduation: pursue the money and perceived prestige associated with the work done by large law firms or fulfill a desire to help people without easy access to legal services. It is important, at least in part, for there to be strong pro bono initiatives at elite large law firms because they enable talented attorneys to pursue both goals in tandem. Atinuke Adediran’s recent work, however, challenges the efficacy of that narrative. Continue reading "Legal Elites Serving the Poor (or Not?)"

Creating Pro-Family Law and Politics

Stacie Taranto’s carefully researched, compelling study of antiabortion homemakers in New York captures the kind of populism, gender politics, and economic anxiety that continue to shape the contemporary movement to criminalize abortion. Focusing on activists who mounted a longshot, third-party campaign for the White House, Kitchen Table Politics provides a fascinating look into the changing GOP coalition. As important, the suburban homemakers that Taranto studies provide a powerful example of how certain populist, grassroots movements create change by at once relying on and denouncing the legal system.

Kitchen Table Politics begins before the vital campaigns that would transform the law of abortion and sex equality. Taranto takes the time to understand the personal experiences and socioeconomic forces that encouraged Catholic homemakers to become active. As Taranto shows, for many homemakers, antiabortion activism had both religious and economic roots. Kitchen Table Politics explores the upward mobility cherished by Catholic homemakers born during the Depression, many of whom had only recently settled into a comfortable life in the suburbs. These activists, Taranto shows, felt that the legal reforms proposed by feminists would destroy the lives that they had only just managed to build. And Vatican II, an ecumenical council that laid the groundwork for modern Catholicism, created organizations that homemakers would use to launch state and national legal campaigns. Vatican II consolidated the power of bishops, priests, and other male leaders of the Church. At the same time, as Taranto shows, Vatican II gave rise to parish-level organizations that would serve as the launching point of campaigns to maintain criminal laws on abortion and to defeat an Equal Rights Amendment (ERA) to the Constitution. Continue reading "Creating Pro-Family Law and Politics"

A New Conservative Theory of Constitutional Change

Graham Gee & Gregoire Webber, A Conservative Disposition and Constitutional Change, 39 Oxford J. Legal Studies 526 (2019).

In this very interesting article, the authors apply some insights from the philosopher Michael Oakeshott to certain issues of constitutional law, with specific reference to Oakeshott’s version of conservatism. Specifically, Oakeshott believed that a conservative disposition is necessary in the face of two related problems: (1) the conservative wishes to protect not the past but the present, for present practices, with  all their imperfections, contain important principles and achievements of justice which should not be lightly exchanged for future uncertainties; and (2) appetites for change can be dangerous, for the change that one intends to bring about is always less than the total change one ends up making—change is unpredictable and very often throws up new problems, or permutations of old ones. Conservatives are not resistant to all change, or even to change in principle, but they mistrust change and are cautious about tampering with existing practices. Defined this way, a conservative disposition is not to be identified (certainly not in an unqualified way) with either the outlook of the British Conservative Party, or various political parties or movements around the world that are described as ‘conservative’. Conservatism is not essentially right-wing, and shares few characteristics with so-called neo-con groups, and few political movements if any properly understand the conservative disposition and its underlying concerns.

The authors of the present article echo these points, which they develop within the specific context of UK Constitutional Law. “Conservatism—and especially a conservative disposition—is poorly understood within constitutional thought.” (P. 527.) The initial part of the article thus spells out the various characteristics of a conservative disposition, observing that it encompasses “ideas about human nature, society, politics, law and government.” (P. 530.) The starting point for conservatism’s protection of existing arrangements (including, centrally, political arrangements) is that our present practices, however accidentally they may have come about, are founded upon human reason; upon efforts that are essentially collaborative and thus promoting of at least a basic level of peace, and embody stability over time, considered as a human good in its own right. The authors identify three components of a conservative disposition: traditionalism (which corresponds roughly to one above); skepticism (which roughly corresponds to two); and a third component, ‘organicism’, the view that “society [is] an organic whole that develops within the context of inherited institutions.” (P. 532.) ‘Organicism’ can be described (though the authors do not formulate it in these terms) as a concern for the protection of civil society considered as an ongoing, culturally rich form of human ordering, to some extent autonomous with respect to changing governmental regimes, that is a vital source of human flourishing. If people did not spontaneously act (or forbear to act) out of civility, society would be an impoverished and dangerous place. Continue reading "A New Conservative Theory of Constitutional Change"

Intellectual Property Rights: A Destroyer as Well as a Creator of Jobs?

Camilla Hrdy, Intellectual Property and the End of Work, 71 Fla. L. Rev. 303 (2019).

Do intellectual property (IP) rights create or destroy jobs (or both)? Industry associations and governmental agencies, such as the Patent & Trademark Office (PTO), frequently tout IP as a major force in creating (good) jobs as well as significantly contributing to economic growth. In 2016, the PTO, for instance, claimed that IP-intensive industries were directly or indirectly responsible for 45.5 million jobs, said to represent 30 percent of all jobs in the US. Without questioning this statistic, Professor Hrdy’s article explains that this is at best only one side of the story.

The main insight of the article is this: “Intellectual property may be partly responsible for job creation for people who work within IP-intensive industries . . . But a significant subset of innovations protected by IP, from self-service kiosks to self-driving cars, are labor-saving, and in many cases also labor-displacing” (emphasis in the original). The development and deployment of automated systems for performing a wide variety of tasks in a wide array of industries is “drastically reduc[ing] the amount of paid human labor required to complete a task.” Job losses resulting from technological change give rise to what economists call “technological unemployment.” Continue reading "Intellectual Property Rights: A Destroyer as Well as a Creator of Jobs?"

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