Jul 10, 2013 Stewart SterkTrusts & Estates
Intestate succession law has traditionally been directed toward accomplishing two objectives: effectuating the likely intent of intestate decedents and minimizing administrative costs. Within the so-called “traditional” family, those objectives are rarely at odds. As a result, intestate succession law has traditionally been relatively simple: the decedent’s property is distributed to the decedent’s spouse and issue, and the only areas of controversy surround how much the spouse should take, and whether distribution to issue should be per stirpes, per capita, or by the UPC’s more refined “by representation” scheme.
In her recent article, however, Professor Susan Gary identifies the growing complexity in intestate succession law. That complexity is a response to increasing recognition that intestate succession statutes designed for the traditional family often frustrate the intent of decedents whose family is not traditional. To deal with non-traditional families, Professor Gary notes that a number of states have attempted to bring domestic partners, children born through assisted reproduction, stepchildren, and even informally adopted children within the intestate succession scheme, and cites a variety of scholarship supporting this expansion. Similarly, she identifies statutory provisions designed to disinherit intestate heirs when it would appear that the decedent would not want those heirs to take; in addition to slayer statutes, she discusses cases of child or spousal abandonment, and cases of elder abuse. These refinements of more traditional intestate succession statutes presumably increase the number of cases in which intestate succession doctrines effectuate the intent of intestate decedents, but, as Professor Gary observes, they are not perfect; they do not anticipate all of the circumstances in which a decedent might want to vary the most common patterns of distribution. Continue reading "Rules or Standards For Intestate Succession?"
Jul 9, 2013 Daniel ShaviroTax Law
It’s always nice when you can combine outside reading for fun with something that is educational and at least indirectly professionally relevant. Benn Steil’s economic and diplomatic history of the 1944 Bretton Woods conference, which established the post-World War II global framework for currency relationships and international trade (while also creating the International Monetary Fund and the World Bank) filled this niche for me during a quiet weekend. While the subject is not literally or directly related to taxation, it touches so closely on finance, macroeconomic policy, and international trade as to occupy a common universe with overlapping concerns.
The book tells a lively story, in which U.S. Treasury economist Harry Dexter White – an ardent economic nationalist yet also a Soviet mole – thoroughly squelched the great English economist John Maynard Keynes (the U.K.’s chief negotiator) in establishing the postwar regime for trade, currency, and capital flows. With the U.S. economically dominant and the U.K. reduced to begging for loans, Keynes would have had no chance even had he been better at converting his analytical and epigrammatic skills into diplomatic ones. Continue reading "Trade, Currency, and International Cooperation"
Jul 8, 2013 Andrew BoonLegal Profession
In the 1970s and 80s, a significant debate emerged around the role played by lawyers. Based on the American Bar Association model code, associated documents and case-law, several moral philosophers, and a few lawyers, characterised legal representation as comprising two overarching principles. The principle of neutrality, they said, demanded that lawyers represent clients or causes they may disagree with morally. The principle of partisanship demanded that they fulfil their client’s wishes to the limits of the law. Provided they fulfil these tasks faithfully, they were morally absolved on the grounds that the role they perform is itself good. This constituted a third principle: non-accountability.
Numerous critics of this ‘standard conception’ of the lawyer’s role found it morally indefensible. Despite some spirited justifications and more nuanced rejoinders, the balance of debate moved on to the consequences of such a conclusion and the steps that should follow. At one end of the spectrum lay measures such as encouraging lawyers to select clients on moral grounds. The middle ground was occupied by proposals that lawyers have discretion to ignore ethical norms producing immoral outcomes. More radical solutions involved abandoning the adversarial system or the de-professionalization of lawyers. Wendel is one of many scholars who, often in book form, have recently revisited the issue of the standard conception of the lawyer’s role. Continue reading "Re-Conceiving The Lawyer’s Role And The Foundations of Legal Professional Ethics"
Jul 5, 2013 Kunal ParkerLegal History
Samera Esmeir’s ambitious book, Juridical Humanity: A Colonial History, explores the legal transformation of British-ruled Egypt between the 1880s and the 1930s. With news from Egypt the subject of daily headlines, the book is timely and important. However, it is Esmeir’s innovative treatment of her subject that truly makes this book deserving of the widest readership. In contradistinction to a powerful tradition of writing about colonialism, Esmeir sees in the legal colonization of Egypt not the occlusion of Egyptians’ intrinsic humanity, but instead the instantiation of “humanity” as the object of colonial law’s solicitude. This is the “juridical humanity” of the book’s title.
Naming “humanity” as its teleology, Esmeir argues, colonial law sought to reconfigure Egyptian society according to “humanity”’s logic. The pre-colonial legal tradition, one with which the overwhelming majority of Egyptians identified, came to be roundly dismissed as inhuman, barbaric, and violent. With the goal of “humanizing” Egyptian society, colonial law reconfigured Egyptian social relations in a range of contexts: labor, gender, incarceration, the treatment of animals, and so on. European and Egyptian legal elites participated enthusiastically in this “humanizing” project. As Esmeir skillfully shows, however, the effect was not to rid Egyptian society of violence, but rather to produce a different relationship to violence: one that carefully measured, calibrated, and fitted violence to the imperatives of “humanity.” It is hard not to recognize in Esmeir’s account the pre-history of the human rights-led imperialism of our own day, with its lurid depictions of various social oppressions in the non-Western world that legitimize Western military intervention. Esmeir clearly has this in mind. Continue reading "Colonizing Humanity"
Jul 3, 2013 Jason SchultzIntellectual Property Law
Kate Darling, What Drives IP without IP? A Study of the Online Adult Entertainment Industry, (February 1, 2013), available at SSRN.
Throughout media history, purveyors of illicit content have always had to think on their feet when faced with economic or legal dilemmas. Never the darling of regulators, law enforcement, or public representatives, adult entertainment companies have pretty much been left to their own devices for dealing with new challenges. It comes as no surprise, then, that in a post-Napster era of expansive networks, easy copying, and free content, porn producers must rethink how they approach their products and profitability.
In her excellent article, What Drives IP without IP? A Study of the Online Adult Entertainment Industry, MIT Research Specialist Kate Darling investigates the current state of the American sexual expression industry to sort out the various perspectives and approaches its players are taking to the shifting ground they currently tread. What she finds is both an affirmation of numerous common sense intuitions (e.g., that porn producers rely less on copyright enforcement and more on lower costs, higher video quality, content curation, and targeted marketing to maintain market share), as well as some surprising discoveries (e.g., that “experience goods” such as live interaction, gaming, and 3D are becoming a staple for building solid online brands). Continue reading "Knowing a New Business Model When You See It: Adult Entertainment Innovations And Adaptations in a Post-Napster Era"
Jul 1, 2013 Elizabeth Weeks LeonardHealth Law
Jessica L. Roberts’s recently published article, “Healthism”: A Critique of the Antidiscrimination Approach to Health Insurance and Health-Care Reform, offers a provocative, thoughtful rebuttal to the antidiscrimination rhetoric surrounding the Patient Protection and Affordable Care Act (“ACA”). Some of the ACA’s most popular reforms, namely, the ban on preexisting condition exclusions, guaranteed issue and renewal, and community rating were touted as eliminating insidious health insurance industry practices that—in then-candidate Obama’s words—“discriminat[e] against those who are sick and need care the most.” Roberts cites another commentator who characterized the ACA as a “civil bill of rights for the sick.” But, as Roberts aptly notes, the practice of “discriminating” against the insured on the basis of health conditions and expected risk is endemic to commercial health insurance underwriting.
For her titular concept, Roberts refashions the term “healthism,” defining it “as discrimination on the basis of health status.” She argues that despite the political rhetoric surrounding federal health reform and ACA provisions intended to eliminate “healthism,” other provisions of the law in fact operate as proxies for health status discrimination. She notes that previous federal statutes intended to eradicate healthism similarly fell short of this goal. The ACA, on its face, surely does eliminate discrimination, first, by requiring “guaranteed issue” and, second, by requiring “community rating.” Guaranteed issue means that health insurers must sell a policy to any individual, regardless of preexisting conditions, and community rating means that the insurer cannot discriminate in the price of the policy based on preexisting conditions or other health status indicators. Continue reading "Healthism, Health Care Rights, and the Affordable Care Act"
Jun 28, 2013 Howard M. WassermanCourts Law
President Obama was widely criticized when he stated that he viewed a “quality of empathy, of understanding and identifying with people’s hopes and struggles” as an essential attribute in a judge, one that he would look for in choosing Supreme Court justices and other federal judges. Conservative commentators attacked this as endorsing naked judicial activism, a call for more liberal judges running amok and deciding cases to suit their political preferences in favor of the “little guy” rather than based on “law.” Neither of the President’s Supreme Court nominees would openly endorse the empathy standard in their confirmation hearings, although Justice Kagan subtly defended the underlying idea, if not the terminology, at her confirmation hearing. And Republican members of Congress used the President’s words (or at least their (mis)interpretations of those words) to oppose his Supreme Court nominees.
With In Defense of Judicial Empathy, Thomas Colby undertakes the first comprehensive scholarly treatment and defense of the President’s arguments and of empathy as an essential and unavoidable component of good judicial decisionmaking. And he ties the centrality of empathy to broader debates over the judicial role. Continue reading "The Truth About Empathy"
Jun 26, 2013 Melissa MurrayFamily Law
Luke A. Boso, Urban Bias, Rural Sexual Minorities, and the Courts, 60 UCLA L. Rev. 562 (2013), available at SSRN.
Places of transformation and constant activity, cities have always loomed large in the cultural imagination. Clark Kent left the cornfields of Smallville for Metropolis, and in the process, discovered his true identity as Superman. Carrie Bradshaw fled to New York City, where she discovered Manolo Blahniks and (after some false starts) true love. The tale of escape from rural life to urban opportunity is not merely one that plays out in fantasies. Instead, such migration accounts for large-scale demographic shifts in American society. In the first half of the twentieth century, African Americans fled the racism and parochialism of small Southern towns for the (relative) freedom and opportunity of Northern and Western cities.
More recently, cities have figured prominently as sites of LGBT identification and acceptance. Consider the popular “It Gets Better” campaign, which aims to combat the feelings of isolation and despair that LGBT youth often face. Premised on the idea that coming out and assimilating into a welcoming LGBT community are integral for a happy adulthood, It Gets Better often assumes that LGBT persons seeking a “life worth living” will do so in the cosmopolitan confines of an urban metropolis. Indeed, in one ad, Michael Bloomberg, the mayor of New York City, rolls out the welcome mat for LGBT youth. “New York,” he advises, “has always been the place where anyone can go and be who they are supposed to be, regardless of ethnicity, religion, gender, or sexual identity.” Continue reading "(Same) Sex and the City"
Jun 24, 2013 Sonia LawrenceEquality
After reading Presumed Incompetent: The Intersections of Race and Class for Women in Academia and attending the Symposium organized around the book by the Berkeley Journal of Gender, Law and Justice, I came home to find Sara Ahmed’s On Being Included: Racism and Diversity in Institutional Life waiting in my mailbox (this Jot is about On Being Included, although I’m quite prepared to say that I like Presumed Incompetent (lots) as well). The combination of these two books, both filled with personal stories and institutional insight, cracked my vision of my own place in the legal academy, and the “practice” of diversity, wide open. I read this work as a person who shares a (not surprising, really) number of experiences-as-academic with Ahmed. I read it just after reading the often deeply personal essays in Presumed Incompetent. I also read it as a person who has worked to avoid being noticed as “the problem” while trying to maintain a commitment to anti-racist work. These days, that means deep concern that my own strategies and efforts are nothing more than thinly veneered cooptation. All of these things, I think, amplified the impact of the book on me. But I still do not hesitate to recommend it to you, Jotwell reader.
On Being Included is a different kind of offering from a well-known Black British feminist, Professor in Race and Cultural Studies at Goldsmiths (University of London), whose work draws on feminist theory, queer theory, critical race theory and post colonialism. She writes, “It develops my earlier arguments about ‘stranger making’ by thinking more concretely about institutional spaces…” (P. 3.) The book is a study of “diversity” as work inside institutions of higher education. Unlike most of her other work, this one developed out of an empirical study she undertook with a team (read the Introduction for the description of how this happened). Ahmed’s interviews, her personal connection to the subject matter (her presence is part of how her institution does diversity (P. 153), and she has done ‘diversity work” there as well), and her linking of empirical and theoretical insights make this a deeply engaging read. Continue reading "Law As Unfinished Social Action"
Jun 21, 2013 Erin MurphyCriminal Law
On February 15 of this year, the Department of Justice and the National Institute of Standards and Technology in the Department of Commerce announced their partnership in forming a National Commission on Forensic Science (the Commission). The aim of the Commission is to develop “a framework for coordination across forensic disciplines under federal leadership” and to establish national standards for forensic scientists. Both critics and defenders of forensic science in the criminal justice system largely applauded the announcement. Jennifer Laurin, however, probably let out a sigh.
That’s because Laurin’s important new article, Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight, challenges the assumption that fixing the nation’s crime laboratory problem will in turn solve its integrity-of-forensic-evidence problems. Instead, Laurin identifies the analysis of crime scene evidence as but one small part of a greater chain of events that starts when forensic evidence comes into existence and ends with its appearance at trial in a criminal case. Before evidence ever gets seen in a lab, in other words, it must first be collected, preserved, and submitted. And, after submission, evidence may only be as useful as prosecutors allow it to be, for instance via explicit requests for testing, receptiveness to the results that are generated, or timely disclosure and access during discovery prior to trial. Yet, she laments, these critical moments have evaded significant scrutiny even though upstream users of forensic science—police and prosecutors—“… select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases” (p. 1055). Continue reading "Physician Heal Thyself: Whither the Police and Prosecutor in the Tale of Forensic Science Gone Wrong?"
