Aug 2, 2024 Allison Anna TaitTrusts & Estates
Climate change and environmental justice are topics that thread through and are pushing the boundaries of legal inquiry in multiple doctrinal areas. From reproductive justice to corporate investing, environmental concerns have emerged as both salient and pressing. One subject area still awaiting robust exploration of the relationship between environmental concerns and legal rules is inheritance law. This lack of energetic conversation about the environment and estate planning might be, on the one hand, surprising. Estate planning is all about the future and provisioning future generations. On the other hand, it is perhaps not a complete surprise since estate planning tends to focus on the preservation of private family wealth rather than the creation of extended public benefit.
Given the need for increased scholarly attention to this area, it is encouraging to see two short pieces about environmental justice and estate planning in the Fall 2023 volume of the ACTEC Law Journal dedicated to a critical analysis of inequality in the field. The first of the two articles is Trace Brooks’ article, Incorporating Social Justice and Environmental Sustainability into Estate Planning Through Conservation Easements. In the article, Brooks explores “the intersection of estate planning, private land conservation, social justice, and environmental sustainability,” and discusses ways in which conservation easements have been used both to entrench and erode inequality. Conservation easements, in which a landowner donates an easement to a conservation organization (think a land trust or even the government) in exchange for a tax deduction, have historically been a tool for wealth preservation and obtaining tax advantages. So, while these kinds of easements provide environmental benefit by restricting development and preserving the land, they have also comprised a mechanism for consolidating and increasing family wealth, particularly for white families and communities, and particularly for those who can afford homes and land in desirable geographies. The existence and effects of this trend in high-wealth locales have been compellingly documented and explored by sociologists like Justin Farrell in Billionaire Wilderness and Lisa Sun-Hee Park and David Pellow in The Slums of Aspen. Continue reading "The Wealth Planning Climate"
Aug 2, 2024 Victoria J. HanemanTrusts & Estates
A billionaire invests in human cryopreservation so that his head may be preserved in hopes of his entire person being revived later. His head, and his favorite dog, will be preserved at minus 320 degrees Fahrenheit in a cylindrical tank filled with liquid nitrogen in the hopes that the advanced medical technology of the future will allow for their reanimation. And no, the technology does not currently exist to reanimate a cryogenically preserved human or dog, but cryogenics companies are optimistic that it will be possible in the future.
As part of his revival plan, the billionaire consults with an estate planning attorney. He would like a perpetual trust to be established in the state of South Dakota, so that he and his dog need not be poor in the future. The perpetual trust can shelter a large chunk of money (often transfer tax-free) for centuries, in relative secrecy. Because of the climate crisis, our unfrozen billionaire may awaken to find himself in a world without Greenland or Antarctica. Important megacities will be gone, including New York City, London, Shanghai, Mumbai, and Bangkok, and so he needs to buy a new house. Or two.
Planning for immortality in a bleak apocalyptic future has become big business for an unknown number of billionaires who also appreciate the importance of maintaining status as a “have” (instead of a “have not”). This billionaire hypothetical (which may not actually be hypothetical—I will leave it to you to figure out) raises a myriad of rarely discussed ethical issues for both estate planners and legislators. Estate Planning Ethics for the Apocalypse, by Carla Spivack, published in 2023 in the ACTEC Journal, seeks to open this important conversation. Continue reading "Climate Conscious Advocacy and Perpetual Burdens"
Aug 1, 2024 Christopher J. RobinetteTorts
In discussing tort theory, Professor Gregory Keating sometimes refers to a “third way.” By this, I take him to mean an approach to tort theory different than, and drawing from, the two major ways of explaining and/or justifying tort law. For decades, those dominant approaches were law and economics efficiency and corrective justice, though I suspect civil recourse theory has now supplanted corrective justice as the primary “rights-based” theory.
Keating’s own version of a third way emerges in the course of reading his excellent book, which builds on his previous scholarship. While engaging with law and economics (hereafter “L&E”) and corrective justice (hereafter “CJ”)/civil recourse (hereafter “CR”) scholars, Keating constructs a theory of tort law that draws from both sources. Keating is not, however, Solomonic in the sense that he is simply splitting the baby. He embraces a deontological perspective that he believes is inherent in tort law. In sum, “[t]ort is about what we owe to each other in the way of coercively enforceable obligations not to impair or interfere with each other’s urgent interests as we go about our lives in civil society.” (P. 6.) Continue reading "Professor Keating’s Third Way"
Jul 31, 2024 James GrimmelmannTechnology Law
Sarah B. Lawsky’s Coding the Code: Catala and Computationally Accessible Tax Law offers an exceptionally thoughtful perspective on the automation of legal rules. It provides not just a nuanced analysis of the consequences of translating legal doctrines into computer programs (something many other scholars have done), but also a tutorial in how to do so effectively, with fidelity to the internal structure of law and humility about what computers do and don’t do well.
Coding the Code builds on Lawsky’s previous work on formal logic and its advantages for statutory interpretation. (Formal logic, sometimes called “symbolic” or “mathematical” logic, involves the precise and rigorous analysis of symbolic expressions representing arguments, such as “p & ¬q” to mean “p is true and q is not true”.) In her 2017 A Logic for Statutes, she observed that many statutory provisions have a characteristic structure: rules subject to exceptions. A typical rule says that WHEN certain conditions are satisfied, THEN certain consequences follow, UNLESS one of several exceptions applies. Exceptions have exceptions of their own: interest payments are deductible, unless they are personal, unless they are mortgage payments. Continue reading "When Law is Code"
Jul 30, 2024 Adam RosenzweigTax Law
Rebecca M. Kysar,
The Global Tax Deal and the New International Economic Governance, __
N.Y.U. Tax L. Rev. __ (forthcoming), available at
SSRN (May 16, 2024).
In 1944 forty-four nations signed an agreement in Bretton Woods, New Hampshire, which laid the foundation for what would become the modern international economic system. The so-called Bretton Woods system was built on the commitments to free and open trade, stable monetary exchange markets, and investments in global public goods. One of the motivating factors underlying the Bretton Woods agreement was to prevent the kind of trade protectionism, isolationism, and hyperinflation that had been seen as some of the geopolitical factors ultimately leading to World War II. While the Bretton Woods agreement itself only lasted until 1971, the commitment to liberalized trade, liquid currency markets, and investments in global public goods continued and came to be known collectively as the “Washington Consensus.”
In recent years, however, cracks have begun to emerge in the Washington Consensus under the stress of the Financial Crisis, the COVID pandemic, and increased protectionism and trade wars. At the same time, the Organization for Economic Cooperation and Development (OECD) began the single most significant overhaul of the global tax regime since its inception through its Base Erosion and Profit Shifting (BEPS) project. Over one hundred and forty countries eventually reached near universal agreement on fifteen separate Action Items fundamentally overhauling the international tax regime. This success stands in stark contrast to the otherwise perceived crumbling of the Washington Consensus. Was this merely another notable example of tax exceptionalism? Or could the success of BEPS serve as a model for revitalizing the Washington Consensus?
Professor Rebecca M. Kysar intervenes in this debate in her new article, The Global Tax Deal and the New International Economic Governance. The underlying premise of the article provides that the success of the BEPS negotiations proves the demise of the Washington Consensus, not its survival. Continue reading "Is There Finally a New World (Economic) Order?"
Jul 29, 2024 Barbara LevenbookJurisprudence
The title of this review should begin, “It should go without saying.” Unfortunately, given a spate of recent fashionable criticisms of retributivism—by Martha Nussbaum, Vincent Chiao, Erin Kelly, and others—the thesis defended in Dr. Leora Dahan Katz’s article needs saying and defending. That thesis is that there is no theoretical incompatibility between commitment to a retributive justification of punishment and promoting human welfare; and there is no evidence (at least, none provided by antiretributivists) of an empirical incompatibility in adopting a retributive rationale for punishment and yet trying to promote (albeit not to maximize) human welfare (e.g., by addressing human needs before criminal conduct occurs, educating about sexual assault, or, I would add, showing mercy or compassionate release under unusual circumstances). There is yet no reason proffered to think that the retributive theory of punishment needs replacing by a welfare-oriented one.
Dahan Katz carefully disentangles various arguments contrary to her thesis: causal, psychological, conceptual. She refutes, with particular precision and philosophical sophistication, an axiological argument to the effect that retributivism is committed to viewing human suffering as having intrinsic, not merely instrumental, value, and that this is incompatible with a welfare orientation. Her refutation involves what is, given the antiretributivist literature, a much-needed reminder about the precise contentions underlying various forms of retributivism. Continue reading "It Goes Without Saying in Justifying Criminal Punishment"
Jul 26, 2024 Scott CummingsLegal Profession
Ann Southworth is a pioneering scholar of the conservative legal movement. Her 2008 book, Lawyers of the Right: Professionalizing the Conservative Coalition, offered path-breaking insights into the evolution of the movement, charting its origins, features, and fractures. Her new book, Big Money Unleashed: The Campaign to Deregulate Election Spending, is a worthy—and timely—successor that explores one facet of what the movement has achieved. In it, Southworth examines the decades-long legal campaign to transform the First Amendment into a vehicle to enable unfettered corporate influence in politics. This campaign culminated in the 2010 Supreme Court case, Citizens United v. FEC, which gave corporations the right to spend unlimited amounts on candidates for political office, overruling precedent to strike down a critical provision of the Bipartisan Campaign Reform Act 2002 (BCRA), otherwise known as the McCain-Feingold law.
Southworth’s aim is not to explain or defend the doctrine resulting from this campaign, but rather to uncover the “process that generated” it. (P. 2.) She does so by analyzing “how lawyers and other key actors worked with the justices to create that law, borrowing a litigation strategy pioneered by the NAACP Legal Defense Fund to dismantle racial segregation and using it to advance a very different type of cause.” (P. 2.) Southworth mobilizes a trove of primary research, which includes data on the political alignments and financial supporters of organizations filing briefs in Roberts Court campaign finance cases (Citizens United (2010), Arizona Free Enterprise Club v. Bennett (2011), and McCutcheon v. FEC (2014)), language analysis of arguments in briefs filed in twelve Supreme Court cases since the 1970s, and interviews with fifty-two lawyers who participated on both sides of the campaign. It is a testament to Southworth’s careful scholarship and status as a scholar both sides respect that she was able to gain access to lawyers on this deeply polarizing political issue. Continue reading "How the Conservative Legal Movement Gave First Amendment Rights to Corporations—and Why It Matters Now"
Jul 25, 2024 Aliza BloomCriminal Law
Criminal law scholars have long been concerned with the system’s pervasive harms to race and class-subjugated communities, and more recently they observe the subordinating functions of criminal law and procedure. In their fascinating new study, G. Ben Cohen, Justin B. Levinson, and Koichi Hioki present data on the connection between race and group-imposed liability. Their paper critiquing the racially disparate application of felony murder and accomplice liability supplements this conversation with empirical findings that racial bias affects perceptions of who is acting alone versus in concert with others. I believe that these psychological findings are also relevant to discretionary policing. Just as implicit racial bias affects courts and juries’ application of felony murder and accomplice liability, it affects the assumption of group liability in police decisions to surveil, approach, interrogate and arrest young people associating in groups in public spaces.
Cohen, Levinson and Hioki address the operation of racial bias in homicide doctrine. First, they detail the pervasive critiques of felony murder and accomplice liability, which “sit at the fulcrum of the criminal legal system’s false promise of individualized moral culpability.” These doctrines eliminate a prosecutor’s need to prove either of the core elements of murder: that the individual committed the act (actus reus) or that they intended to do so (mens rea). Courts engage in a problematic inquiry where intent and action are inferred, providing fertile grounds for racial bias. The Court grappled with felony murder but ultimately found that even the death penalty does not violate the Eighth or Fourteenth Amendments where a person, without intent to kill, had a “major participation in the felony committed, combined with reckless indifference to human life.” And despite the fact that accomplice liability undermines fundamental notions of individualized guilt, it has become a powerful tool, especially for statutes defining offenses based on group affiliations including gang enforcement, and RICO charges. As the authors explain, prosecuting people for felony murder and accomplice liability addresses a problem that does not exist because accomplices are already punished for their actual crimes. Continue reading "Assuming Collective Criminality in Policing"
Jul 24, 2024 David FagundesIntellectual Property Law
Andres Sawicki,
The Law of Creativity?, __
Cornell L. Rev. __ (forthcoming 2025), available at
SSRN (Aug. 28, 2023).
If you jostle an IP scholar awake in the middle of the night and ask them, “What is the canonical justification for copyright and patent,” the first thing they’ll say is, “What the hell are you doing in my bedroom?” But the second thing they’ll say is, “Limited exclusive rights in works of authorship and inventions are necessary to preserve incentives to create them.” Or as Samuel Johnson more bluntly put it, “No man but a blockhead ever wrote, but for money.”
Everyone knows that this is the received wisdom. But strangely, at the same time, no one actually believes it. Intuitive counterexamples to Johnson’s “blockhead” comment are easy to conjure. Authors often produce content with zero expectation of remuneration simply because they have something to say and want to share it with others. Scientists engage in pure research because they want to contribute to how we understand the world (and also because they are paid a salary, by universities, or drug companies, etc.). Developers produce innovations not only to become the next Uber or Google but to improve others’ lives and for the love of making stuff. Continue reading "Samuel Johnson Was a Blockhead"
Jul 23, 2024 Jedidiah KronckeInternational & Comparative Law
J. Benton Heath,
Economic Sanctions as Legal Ordering, __
Mich. J. of Int’l. L. __ (forthcoming, 2024), available at
SSRN (Jan. 31, 2024).
The issue of economic sanctions has become a near routine aspect of the contemporary news cycle. While many such regimes are now decades old, the enactment and modification of sanctions has become the most pervasive form of coercion practiced among modern nation-states. In his article Economic Sanctions as Legal Ordering (hereinafter ESLO), J. Benton Heath confronts the contemporary normalization of sanctions with a decisively unsettling transnational intervention: the role of early 20th century Chinese consumer boycotts in stimulating many elements now taken for granted in modern sanction regimes. In recovering the force of this neglected precedent, Heath helps us better understand what is and isn’t new about the recent intensification of economic sanctions while also providing a powerful example of the increasingly undeniable necessity of transnationalizing how we understand the origins of contemporary international legal developments.
Heath’s central argument in ESLO is that the largely civil-society-led Chinese consumer boycotts that emerged at the beginning of the 20th century were what he calls an “insurgent legal ordering.” This insurgency was organized beyond the bounds of what the modern international legal order took to be its unit of analysis—the nation-state—and over four decades its accomplishments shaped how economic warfare came to be legally disciplined. The importance of this pre-World War II provocation joins an increasingly wide range of scholarship as to how Chinese actors and arenas were far more central to the development of the modern international legal order than has been historically recognized. Heath here combines a synthesis of existing works on Chinese boycotts with original archival research into how the force of these boycotts were interpreted by the dominant architects of the evolving early 20th-century international legal order. Continue reading "Taming Legal Insurgency: An Unruly Counter-History of Economic Sanctions"
