Monthly Archives: January 2022

Most People, Most of the Time

Mary Louise Fellows & E. Gary Spitko, How Should Non-Probate Transfers Matter in Intestacy?, 53 U.C. Davis L. Rev. 2207 (2020).

Each moment of every day, many people are living without a formal estate plan and dying without a valid will. Reasons include ignorance, inertia, and choice. Some might not know that they have the ability to transfer property at death; others don’t want to think about the matter or do not care. A slight few might consciously figure that solving who gets what is best left to survivors to sort out, thereby externalizing the effects of their indecision. And there always remains the unlikely possibility that a person will both know, and consciously select, the succession outcomes that intestacy would force. In the latter two instances, those who “choose not to decide [] still have made a choice.” Nevertheless, as Professors Mary Louise Fellows and E. Gary Spitko intimate in How Should Non-Probate Transfers Matter in Intestacy?, individuals who intentionally die without an estate plan are probably rare.

Dying without an enforceable estate plan poses problems because clarity of ownership – knowing who owns what and precisely when – matters. Such deaths are neither new nor novel, with intestacy rules offering a solution. The property will pass to the decedent’s heirs, i.e. those whom state statutes identify as takers in default of a will. Otherwise stated: the property will pass to whomever some set of long-ago legislators (picture that demographic) determined as the most likely (or, as shaded by inherent biases, “appropriate”?) candidates for the decedent’s largesse. While intestacy may provide an efficient solution for distributing the property of decedents who died without manifesting a preference, Professors Fellows and Spitko note the inadequacy of that solution and posit a more intent-effectuating response. Continue reading "Most People, Most of the Time"

Debunking the Myth that Police Body Cams are Civil Rights Tool

Body-worn cameras are proliferating with astounding speed in police departments throughout the country. Depending on the conditions under which cameras are used, the spread of this technology has been defended by certain civil liberties organizations as a means of holding police accountable for excessive force used disproportionately against Black, Brown, and queer people. In his new book, Police Visibility, Professor Bryce Clayton Newell musters empirical fieldwork on police deployment of body cameras to slow the rush to implement this potentially pernicious law enforcement surveillance tool.

This book is a careful and in-depth study by a leading scholar of police technology. Specifically, Newell questions whether the prescription (police cameras) will meaningfully treat the illness (structural racism and police violence). As he puts it, “[i]n the absence of broader police reforms, the cameras may offer a Band-Aid … but they do not promise a cure.” (P. 40.) As Newell notes, body-worn cameras “serve the coercive aims of the state” and increase police power because the cameras are evidentiary tools controlled by the police that can be used to surveil and incarcerate more people. Continue reading "Debunking the Myth that Police Body Cams are Civil Rights Tool"

“Day-in-Court Theater” in Eviction Court

Lauren Sudeall & Daniel Pasciuti, Praxis and Paradox: Inside the Black Box of Eviction Court, 74 Vand. L. Rev. 1365 (2021).

Proceduralists debate what procedures a system of civil justice ought to have and what rules and doctrines best actualize these procedures. We do not, however, pause enough to ask, “in the real world of courts and dispute resolution, do these rules and procedures do what we think they are doing?” Lauren Sudeall and Daniel Pasciuti contribute to the growing literature of quantitative and qualitative empirical studies of what happens inside American courtrooms by observing and analyzing the inner workings of dispossessory (eviction) courts in Georgia.

Sudeall and Pasciuti provide a detailed account of dispossessory courts in three counties – a large suburban county, a large rural county, and a small rural county. They shed needed light into the proverbial “black box.” I guess many legal academics have scant knowledge of the workaday life of state courts, and fewer still of specialized and small claims courts. For those who have spent time in these arenas, Praxis and Paradox demonstrates the wide variance between courts within the same state with a nominally uniform set of substantive and procedural laws. To know one housing court is not to know them all. Continue reading "“Day-in-Court Theater” in Eviction Court"

Law Over Improvision: A Call to Reform the Culture of Partnership Tax

Andrea Monroe, Making Tax Law Work: Improvisation and Forgotten Taxpayers in Partnership Tax, 55 U. Mich. J. L. Reform (forthcoming), available on SSRN.

Andrea Monroe’s article, Making Tax Law Work: Improvisation and Forgotten Taxpayers in Partnership Tax, boldly calls on partnership tax experts to understand their role in normalizing dysfunction within partnership tax law and to support reform that is mindful of all partnerships.

Although millions of business entities are taxed as partnerships, assets and income are concentrated in a small number of them. As Monroe notes, drawing on IRS data from 2018, “less than 1 percent of partnerships held greater than 76 percent of partnership assets, and approximately 73 percent of partnerships held roughly 1 percent of partnership assets.” This suggests great differences among tax partnerships, yet, as partnership income and deductions are taxed to the partners and not the partnership, all tax partnerships must allocate their income and deductions to their owners. Continue reading "Law Over Improvision: A Call to Reform the Culture of Partnership Tax"

Justice, Just Us, and Housing Policy: A Call for Correction

Rachel D. Godsil and Sarah E. Waldeck, Home Equity: Rethinking Race and Federal Housing Policy, 98 Denv. L. Rev. 523 (2021).

As a little girl growing up in a segregated Southern town in the 1960s, I did not understand the policies and practices that led to the creation of my neighborhood. Right after my birth, my parents purchased a very small single-family home in a newly built segregated subdivision, a subdivision created for just us, a subdivision that lacked many of the services and amenities typically available in white neighborhoods.

Reading the article Home Equity: Rethinking Race and Federal Housing Policy, written by Rachel Godsil and Sarah Waldeck, caused me to think about how federal housing policy could have led to the creation of that all-Black neighborhood that provided both a safe and an unsafe space in which to grow up.

In my childhood neighborhood, we played in the street as we had no parks and we walked to an elementary school that was built on the far side of a four-lane street and within close proximity to manufacturing facilities and railroad tracks. I do not recall sidewalks or streetlights or crosswalks, but I do recall drainage ditches and flooding and the day a schoolmate was killed by a car while she was trying to cross that four-lane street to get to school.

In their article, Godsil and Waldeck declare: “With few exceptions, the government at every level has empowered white people to create ‘white spaces’ and has both stigmatized and failed to invest in Black neighborhoods and communities.” The authors propose a rethinking of federal housing policy, arguing for a corrective policy that addresses the inequities of the past and that gives agency to those who have been denied decision-making power in their choices of where to live, a decision that has been historically racialized. Continue reading "Justice, Just Us, and Housing Policy: A Call for Correction"

Federal Indian Law is Racist

From land theft to child removal to cultural genocide, the horrors and harms of federal Indian law have been well-documented. In his recent article, Professor Crepelle acknowledges this history and literature and asks: “Is it ethical to cite cases that are factually wrong and racist?” (P. 533.) He concludes that federal Indian law practice is “incompatible with modern standards of legal ethics.” (P. 532.) I couldn’t agree more.

Professor Crepelle identifies cases that rely on racial slurs, inaccurate stereotypes, and white supremacist language to reach legal conclusions that undermine Tribal jurisdiction or Indigenous rights. These cases—the Marshall trilogy, US v. Rogers, Ex Parte Crow Dog, US v. Kagama, among others—are regularly relied upon in modern federal Indian law practice.

Professor Crepelle analyzes how the Model Rules of Professional Conduct (MRPC) could be applied to lawyers who cite racist federal Indian law cases or judges who rely on them. For example, the MRPC requires claims to be based in law and fact (r. 3.1); prohibits the use of false statements or inaccurate information (r. 3.3, r. 4.1, r. 8.4(c)); and bars conduct that discriminates based on race, sex, or national origin (r. 8.4(d)). Continue reading "Federal Indian Law is Racist"

Harvard’s Model of Legal Education

Bruce A. Kimball & Daniel R. Coquillette, The Intellectual Sword: Harvard Law School, The Second Century (2020).

This mammoth (858 page) book, The Intellectual Sword: Harvard Law School, The Second Century, is the sequel to the same authors’ On the Battlefield of Merit: Harvard Law School, The First Century. That volume broke the boundaries of conventional institutional histories, which are mostly coffee-table celebrations of successive deans and of the buildings erected during their tenure. The authors situated the Harvard Law School (HLS) in the middle of ferocious party-political struggles and the Civil War. They produced the most thorough and searching description and analysis of C.C. Langdell’s famous experimental reforms of the 1870s and 80s in legal education. And they advanced the argument—pursued at much greater length in their new book—that HLS set the template not just for legal, but for professional education generally in the 20th century.

The structural argument. The central argument of the book is that financial structure determined the character and destiny not only of HLS and other American law schools, but to some extent of medical and business schools as well. HLS from the start was locked into a syndrome of dependence on tuition for revenue, which meant that it had to admit a large number of students. To service those students, it had to hire more faculty and acquire more building space, to pay for which it needed to continue to keep its enrollments high. At the same time, to maintain quality and plausibly certify its graduates as the cream of meritocratic competition, it had to flunk out many of the entering class and ruthlessly sort and rank those who remained. The results of high enrollments were very large faculty-student ratios and large classes, dependent on teacher interactions with the most aggressive and articulate students in them to keep Socratic dialogue going; a harsh boot-camp training method, leading to Darwinian competition; equation of “merit” (universal legal competence) with performance on first-year exams, and demoralization and alienation of the non-elite students. Continue reading "Harvard’s Model of Legal Education"

Family-Making in an Age of Scarcity

Sara Matthiesen’s Reproduction Reconceived offers a dark but crucial perspective on the idea of privacy at the heart of Roe, a liberty from government interference that the Supreme Court resolutely insisted did not carry any entitlement to support for family-making. Matthiesen reconceptualizes Roe’s central concept—a privacy right to make the decision to terminate a pregnancy—as a willingness to sign off on government neglect of those at the margins. Reproduction Reconceived offers a fascinating glimpse of the real-world costs of negative rights and explores how grassroots movements seeking support for families navigate a legal system that often rejects the idea of any entitlement to government support.

Matthiesen traces the obstacles facing lesbians and incarcerated people seeking parental rights, who confronted a combination of incomprehension and neglect. Reproduction Reconceived also documents the dangers of family-making for those to whom the state was indifferent, particularly pregnant people with AIDS or Black people confronting spiraling rates of infant mortality. The obstacles facing many of those making the choice to have a family, Matthiesen argues, helped propel one of the most successful initiatives of the antiabortion movement—the creation of crisis pregnancy centers (CPCs). Far from being unwitting dupes convinced that they were visiting abortion clinics, as some pro-choice leaders suggested, the people who turned to CPCs saw them as “the last line of defense against poverty, homelessness, and food insecurity.” (P. 21.) Continue reading "Family-Making in an Age of Scarcity"

The Democratic Disposition of Law

Seana Valentine Shiffrin, Democratic Law (2021).

In Democratic Law, Seana Valentine Shiffrin argues that law, in its full and proper form, is essentially democratic. Shiffrin analyzes the relationship between law and democracy in intimate detail, and explores implications of that relationship for some familiar doctrinal problems in the U.S. context. The book is based on Shiffrin’s Tanner Lectures, which she gave at Berkeley in 2017, and includes an introduction by the editor of the volume, Hannah Ginsborg—which provides a beautiful orientation to the book—as well as lively and incisive commentaries from Niko Kolodny, Richard R.W. Brooks, and Anna Stilz, and a vigorous reply to them from Shiffrin.

In the first of two Parts, Shiffrin argues that each of us has a duty to recognize one another’s equal moral status and to express this recognition to one another. Her argument here builds on Rawls’s account of our fundamental moral equality as persons. For Shiffrin, we are both entitled and obligated to communicate our recognition of one another’s equality—not only discursively (since, as Brooks elaborates in his commentary, talk is cheap) but also through our commitments and actions. Continue reading "The Democratic Disposition of Law"

Should (Some) Political Uses be Presumptively Fair?

Cathay Y. N. Smith, Political Fair Use, 62 Wm. & Mary L. Rev. 2003 (2021).

According to conventional wisdom, fair use factor two plays a minor role, if any, in copyright cases. But, as Cathay Smith shows in Political Fair Use, this factor plays a major role—and may even be dispositive—in cases involving “political uses” of copyright-protected works. Through a series of case studies, Smith “identifies a pattern in political fair use decisions: in disputes arising from the unauthorized political uses of copyrighted works, courts appear to implicitly modify their analyses and balancing of the fair use factors under section 107 of the Copyright Act.”

Fair use is a fact-intensive, case-by-case inquiry. The Copyright Act sets forth four factors that courts should weigh in determining whether a use of parts or all of another author’s work is fair: Continue reading "Should (Some) Political Uses be Presumptively Fair?"

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