May 23, 2023 Victoria J. HanemanTrusts & Estates
Kate Falconer,
Trusts over Cremated Ashes, 15
Journal of Equity 283 (2021), availible at
SSRN (December 1, 2021).
The “law of the dead” or the law of human remains is regarded as an emerging field of study that considers rights to physical possession of the deceased and control over their disposition. In the United States, it is an idiosyncratic area of the law that dresses the concept of remembering in positive legal protections. In memory of the living, we afford a now-empty vessel with quasi-property status to protect against disrespect or defilement. The law of the dead in the United States has developed in an inconsistent and formalistic way, arguably with the funeral industry having an oversized role in the process of rulemaking. In guiding the law of the dead toward more cohesive and forward-thinking rules, it is important to consider the way in which other countries address disputes involving human remains. Trusts Over Cremated Ashes, by Kate Falconer, published in 2021 in the Journal of Equity, considers the use of “cremated ashes trusts” by the Australian courts.
Cremation is a popular method of disposition in Australia, accounting for an estimated 65% of deaths. Comparatively, the U.S. cremation rate was 57.5% in 2021. Roughly 20% to 40% of cremated remains (“cremains”) are interred in a cemetery (either stored in a columbarium or buried) and the remainder are either maintained somewhere other than a cemetery, dispersed, or repurposed. It is not uncommon for disputes to arise over who is entitled to possess and manage the cremains, and the law is not necessarily efficient or consistent in dictating a result. Contemporary U.S. law consists of a patchwork of state statutes that overlay the common law nullius in bonus (“no property in a dead body”) rule, which provides no legal right for a decedent to dictate a preferred method of final disposition. Although some states would like to grant the decedent this right, current statutes frequently lack enforcement mechanisms. Continue reading "Constructive Trusts and Cremated Remains"
May 22, 2023 Anita BernsteinTorts
Leslie Y. Garfield Tenzer and I have crossed paths only once, in an encounter that I found memorable. The venue was a 2014 symposium called Social Media and Social Justice. As one might expect at a law school event with social justice in its title, denunciation and concern abounded. The gloomy context caused a remark by Professor Tenzer to stand out: “I love social media!” When the time came to publish my presentation, I felt moved to quote this splash of good cheer.
Nine years later, Tenzer’s love of this environment seems alive, though with a plangent note running through her insightful Social Media and the Common Law (“Social Media”). Tenzer says she “finds fault with the judiciary’s failure” to impose accountability on the sector (P. 229) and worries about “the prevalence of unaddressed and unpunished social media harms” (id.) that include defamation, invasion of privacy, harassment, emotional distress (which can be severe enough to precipitate suicide, see P. 242) and the cluster of consequences that result from what now gets called cyberbullying. But Social Media seeks to mend rather than end what it observes. Its case for more tort liability is intended to make providers and communications healthier, not just more accountable for the injuries they inflict. Continue reading "The Common Law Inside Social Media"
May 19, 2023 Woodrow HartzogTechnology Law
Ryan Calo,
The Scale and the Reactor (2022), available at
SSRN.
The field of law and technology has come a long way since we last heard the unmistakable squeal of a modem connecting to cyberspace. Most of us that remember that sound now probably have more grey hair than we used to. We’ve covered a lot of ground since “Lex Informatica” and “Code is Law,” so you’d think our field would have a deeply sophisticated method for understanding the relationship between law, society, and technology, right?
Professor Ryan Calo thinks the field can do better. In this concise and accessible unpublished article that is part of a new book project, Calo highlights how Science and Technology Studies, or STS, has been overlooked and could contribute to the field of law and technology. To Calo, law and tech took decades to wind up where STS would have started. It’s not that law and tech is redundant of STS, rather, the problem is that “law and technology has been sounding similar notes to STS for years without listening to its music.” As a result, our field “does not benefit from the wisdom of scholars who have covered roughly the same ground.” Calo looks to showcase critical STS ideas and debates “for the unfamiliar law and technology reader,” so that we no longer have an excuse to claim ignorance of the field. He accomplishes this in spades with a clear and deeply informed article that is a must read for anyone writing in the field of law and technology. Continue reading "What STS Can (and Can’t) Do for Law and Technology"
May 18, 2023 Kim BrooksTax Law
The hard work that went into authoring The Administrative Foundations of the Chinese Fiscal State is palpable from the first page. Cui seeks to achieve two aims: (1) to tease out aspects of Chinese taxation of general interest to policy makers and social scientists in other countries (P. 3) and (2) to offer a new framework for understanding the policies and politics of taxation in China (P. 4). Both aims are accomplished handily.
Particularly fun for those of us who like tax administration, Cui claims that ground-level tax administration is essential to understanding the Chinese tax system. Focusing on tax administration, tax collection and revenue mobilization, allows Cui to show us something new about our own tax systems. He offers us the opportunity to see more clearly our own paradigmatic orientation: one that centres the importance of rule of law. Continue reading "Where tax law cannot be found, you will find a robustly-tasked tax administrator"
May 17, 2023 Gregory M. SteinProperty
Professor Gerald Korngold has written a useful, thorough, and persuasive argument for the expanded use of land value capture, or LVC. His report is published by the Lincoln Institute of Land Policy, an organization that has long supported the economic work of Henry George.
George argued that real estate investors should profit from the fruits of their own labors but not those of the community. This means that these investors may benefit from the increased value of their improvements and additions to the land but not from land appreciation brought about by external factors. Increases in land value caused by the community should be recaptured by the community. Continue reading "Land Value Capture in the Modern Context"
May 16, 2023 Caprice RobertsLexRemedies
Katherine Mims Crocker,
Constitutional Rights, Remedies & Transsubstantivity, 110
Va. L. Rev. __(forthcoming 2024), available at
SSRN.
Faith in judicial decision-making is waning to say the least. Intense skepticism and criticism reign the day. Charges of unbridled power grabs abound, whether one decries the erosion of stare decisis or applauds perceived course corrections in constitutional law and remedies. All recognize victories may be fleeting as we increasingly unmoor from judicial norms and doctrines of restraint. Perceptions of more overt partisanship and consequential decision-making do not uplift the role of Article III judges or align with judicial independence. Is all hope lost? If one wishes to understand and improve the judiciary, Professor Katherine Mims Crocker’s article, Constitutional Rights, Remedies & Transsubstantivity, is for you.
Professor Crocker argues that federal courts should provide comparable options for securing remedies for discrete constitutional wrongs. The promotion of generality and neutrality to foster consistent application across distinct substantive areas is part of the transsubstantivity paradigm. The article’s focus is constitutional remedies—specifically, doctrines for preventing or punishing encroachments of constitutional rights or, when proper, remedies effectuating constitutional rights. And this moment in history poses an ideal opportunity to recenter on the transsubstantivity paradigm given its apolitical nature. Continue reading "Towards an Improved Judiciary—Decisionmaking Consistency on Constitutional Remedies"
May 15, 2023 Allan ErbsenCourts Law
Diego A. Zambrano,
The Unwritten Norms of Civil Procedure, 118
Nw. U. L. Rev. __ (forthcoming 2023), available at
SSRN (Feb. 20, 2023).
Civil procedure professors frequently experience the following classroom scenario. The professor asks a bright and well-prepared student to explain how lawyers and judges should react to a given set of facts. The student has parsed the relevant rules and analyzed opinions that interpret the rules. Drawing on this knowledge, the student articulates factors that will guide discretion. But the professor interjects that some of the student’s plausible assumptions are inconsistent with the reality of civil litigation. For example, lawyers often are reluctant to file certain kinds of motions that seem sensible, and judges often are reluctant to grant certain kinds of motions that seem compelling. Similarly, lawyers might pursue successful strategies that rules seem to foreclose, and judges might innovate in ways that rules do not contemplate. The student then asks how lawyers are supposed to know when to take rules and doctrines at face value, and when to surmise that atextual norms will supersede. Answering that query about the relationship between procedural law and procedural norms requires wading into murky waters.
Diego Zambrano navigates the murky intersection between law and norms in his forthcoming article, The Unwritten Norms of Civil Procedure. He contends that civil procedure scholars have not embraced a central insight of the law and society literature as systematically as scholars in other fields. That literature has repeatedly demonstrated that atextual norms can cause law in action to diverge from law on the books. Although civil procedure scholars have developed this insight in many specific contexts, they have not created what Zambrano calls a “trans-procedural” account of norms that aggregates lessons from distinct contexts. Zambrano’s article explains why a trans-procedural account would help scholars describe civil procedure more accurately and reform it more effectively. Continue reading "Normalizing Procedural Norms"
May 12, 2023 W. Bradley WendelLegal Profession
Andrew Perlman has made legal technology one of the themes of his successful deanship at Suffolk University Law School. He has also taken national leadership roles on law and technology issues, as the chief reporter of the ABA’s Commission on Ethics 20/20, with the charge of modernizing the Model Rules in light of globalization and digital technology, and as vice chair of the ABA Commission on the Future of Legal Services. He was selected as the inaugural chair of the governing council of the ABA’s Center for Innovation. Dean Perlman is therefore ideally positioned . . . to be replaced by a robot.
Many law professors have been playing around with ChatGPT, a chatbot released in November 2022. The developer, Open AI, an artificial intelligence research company, describes the chatbot on its website: ”We’ve trained a model called ChatGPT which interacts in a conversational way. The dialogue format makes it possible for ChatGPT to answer follow-up questions, admit its mistakes, challenge incorrect premises, and reject inappropriate requests.” One tweet, reproduced in an article on the technology, showed the output in response to the prompt, “Write a biblical verse in the style of the King James Bible explaining how to remove a peanut butter sandwich from a VCR.” I doubt that most humans – even a pretty good humor writer – could have done better. Anyone who follows law professors on Twitter has seen academics having a field day inputting their law school exams into ChatGPT or asking hard questions about technical areas of law to try to stump the system. In most cases, the chatbot has performed astonishingly well, providing not only technically correct answers but also demonstrating facility with style and rhetoric. ore ominously, a technology company CEO and a legal scholar had ChatGPT take the multiple-choice portion of the bar exam, the MBE, using the study questions published by the National Conference of Bar Examiners. The chatbot was correct on 50.3% of the questions, as compared with an average of 68% for human test-takers, and would have earned passing scores on the Torts and Evidence portions of the exam. Continue reading "The ChatBots are Coming!"
May 11, 2023 Christopher W. SchmidtLegal History
While working my way through Brad Snyder’s terrific new book, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, I found myself spending inordinate amounts of time admiring his endnotes. There are a lot of them to admire (almost 200 pages worth); they are clear and precise, and they allow the reader to peek behind the curtain and appreciate the stunning amount of research that went into creating this biography.
Frankfurter left behind a massive paper trail. He was a prodigious writer of articles, books, memos, and letters. He was also a lifelong cultivator of relationships with the kinds of people who were themselves energetic writers. The book’s endnotes tell the story of the years Snyder spent reading Frankfurter’s published works, interviewing people who knew him, and scouring the voluminous collections of Frankfurter’s papers and scores of archives around the country. This book, the first comprehensive biography of one of the most important figures in twentieth-century American law, is a major achievement. Continue reading "Felix Frankfurter Reconsidered"
May 10, 2023 Andrew HalpinJurisprudence
In his contribution to an academic event described as “Serious Fun: A conference with & around Schlegel!” Charles Barzun manages to meet all three expectations. Entitled The Tale of Two Harts; A Schlegelian Dialectic, Barzun’s article in the 2021 Buffalo Law Review delivers a number of serious reflections, combines them with some appropriate hilarity, and turns to the event’s honorand as an authoritative guide.
The serious stuff encompasses a comparative study of the influences of the two Harts (Henry and Herbert), an inquiry into the impact of prevailing intellectual culture on scholarship and how it is received, and an appraisal of disciplines (legal and other). It extends to a radical suggestion for legal education, observations on the CLS movement and legal historians, and constructing an academic profile. The fun is two-edged. Ultimately an invitation to have fun in one’s academic inquiries, it turns at times to poking fun at those who take themselves too seriously in their scholarly endeavours. That can easily be turned back as an injunction not to take oneself too seriously. Here too the honorand is taken to provide helpful guidance on striking the right balance.
The appeal of this article lies in the stimulating variety of topics covered and the way in which it weaves them together. The central idea to which much of the discussion returns is the “Essential Dilemma”. Barzun explains this as the problem of reconciling our “subjective” common-sense view of the world with an “objective” scientific view (P. 21). He considers that both Harts grapple with this dilemma. On one level, Henry Hart in The Legal Process is found to be pushing the objective scientific side in regarding “law as a ‘prudential’ or ‘judgmatical’ science” (P. 26), while Herbert Hart in The Concept of Law appears to be favouring the subjective side in advancing the “internal point of view” of the law (Pp. 15-16, 25). Continue reading "Hart Surgery"
