Feb 9, 2023 Michael YuTrusts & Estates
In the field of inheritance law, will execution and revocation formalities loom large because, traditionally, courts have demanded strict compliance with statutory procedures for creating and revoking a testamentary instrument. As to the law of revoking wills in their entirety, Professor David Horton, in Revoking Wills, argues that the high formalism of will revocation doctrine is problematic and should be loosened by: (1) courts increasing their nascent use of the constructive trust in certain failed will revocations, (2) extending the harmless error rule into will revocation law, and (3) as “a novel path forward: importing the will revocation formalities from trust law.” (P. 563.)
To help frame his critique of will revocation law, Professor Horton first summarizes will execution law, which “has long been synonymous with ‘harsh and relentless formalism.’” (P. 573, quoting Professor John Langbein.) The oft-cited benefits of will execution formalities include: (1) the “evidentiary” function of ensuring that the decedent’s wishes are in a “reliable and permanent form”, (2) the “ritual” or “cautionary” function that protects against “inconsiderate action”, (3) the “protective” function of “shielding testators from fraud and undue influence”, and (4) the “channeling function” of “standardizing the appearance of testamentary instruments”. (Pp. 575-76, citations omitted.) Professor Horton argues, however, that the formalities in will execution law are becoming more flexible, as seen in the rise of the harmless error rule and statutes governing electronic wills. (Pp. 579-80.) Continue reading "It’s Time to Talk about Will Revocation Rules"
Feb 8, 2023 Anthony SebokTorts
Edward Cheng, Ehud Guttel & Yuval Procaccia,
Unenforceable Waivers, 76
Vand. L. Rev. __ (forthcoming, 2023), available at
SSRN.
In their forthcoming article, Unenforceable Waivers, Edward Cheng, Ehud Guttel, and Yuval Procaccia (“CGP”) ask an embarrassing question: Why do businesses require customers to sign waivers that have been struck down by courts in published opinions that are available not only to their lawyers but also to their customers? In this Jot, I praise CGP for their sharp eye–this is torts scholarship at its best–and then evaluate their suggestions for reform.
First, the question: Killington Ski Resort is the defendant in a well-known Vermont Supreme Court case that adopted a pro-plaintiff interpretation of the public policy limitation on express assumption of risk. Why does Killington still ask its customers to sign the waiver struck down in that case (Dalury v. S-K-I Limited)? I teach this case, as do many others, as a clear statement of Vermont law. In classroom discussion, I begin with the assumption that whatever one thinks of Dalury’s common law reasoning or policy implications, the Vermont Supreme Court was “wrong clearly even when [it] was clearly wrong” (pace H.L.A. Hart). Continue reading "Just Kidding? The Problem of Unenforceable Waivers of Liability"
Feb 7, 2023 Ari WaldmanTechnology Law
Karen Levy’s book Data Driven, an incisive and accessible sociolegal study of workplace surveillance in the trucking industry, begins with a tale of superheroes. These superheroes are machines from a far-off world dedicated to saving humanity from other machines bent on our destruction. (Think “The Transformers.”) The problem is: Our would-be saviors can’t move. They’ve worked too hard for too long, saving humanity from all sorts of harm, and now, by law and by design, they must rest.
Levy, a professor in Cornell University’s Department of Information Science, tells this story, drawn directly from the pages of a trucking industry periodical, to introduce us to the electronic logging device, or ELD. ELDs are now integrated by law into every commercial truck driving across state lines. They are designed to force compliance with federal “hours-of-service” regulations, which limit the number of hours truckers can drive before taking rest breaks. Like our would-be robot saviors, trucks constrained by ELDs cannot move when their drivers have reached their hours limits. That isn’t necessarily so bad; trucker fatigue is dangerous to truckers and everyone else on the road. But, as Levy explains, ELDs are a lot more insidious. Continue reading "Surveilling Truckers and the Future of the Workplace"
Feb 6, 2023 Leigh OsofskyTax Law
In this illuminating article, Heather Field describes her adoption of a flipped classroom model for teaching tax law during the pandemic. Like many, Field learned lessons from her pandemic teaching that will continue to be instructive now that we are (hopefully) back to an in-person teaching world. Field’s thoughtful article is well worth a read for those (like me!) wanting to do more with flipped classroom teaching.
As Field describes, a flipped classroom involves moving content delivery outside of the classroom (for instance to pre-class videos created by the instructor), thereby creating more space in the class period for active learning in the form of activities and problems. The purported benefits of flipped classrooms include more time for active student learning in class, the ability of students to learn and review content from the videos at their own pace, and the possibility of more differentiation in in-class problem sets. Flipped classrooms certainly were not new to the pandemic, but rather had existed in a variety of educational spaces prior to the turn to remote learning. However, like Field, many professors had not embraced the flipped classroom before the emergency teaching experience that was Spring 2020. Continue reading "Flipping Classrooms in an In-Person World"
Feb 3, 2023 Andrea BoyackProperty
Elizabeth Elia,
Servitudes Done “Proper”ly: Propriety, Not Contract Law, __
J. Land Use & Envtl. L. __ (forthcoming), available at
SSRN.
One of my favorite souvenirs from studying and working in Russia is a many-layered matryoshka, or “Russian Doll.” The unpretentious red, yellow, and blue painted wooden doll opens to reveal a smaller, nearly identical doll, which in turn opens to reveal another and another. This particular matryoshka has eleven dolls nested within one another – the smallest barely larger than a grain of rice.
How delightful it was to read Elizabeth Elia’s article, Servitudes Done “Proper”ly: Propriety, Not Contract Law, which frames community servitudes as one of the many nested governing layers within our legal system. Elia’s “Russian Doll” metaphor is compelling, and her broader point – that a governance (“propriety”) frame is the appropriate one for property law – provides gratifying and unexpected analytical clarity to the law of servitudes. Continue reading "Property through a Propriety Lens: Servitudes as American Matryoshkii (Russian Dolls)"
Feb 2, 2023 Eli NachmanyLexLegislation
A couple of decades ago, Oakland Athletics general manager Billy Beane revolutionized baseball. In constructing the Athletics’ roster of players, Beane employed analytics and data to exploit market gaps in the Major League Baseball labor economy—an innovative strategy. It worked. In 2002, Beane’s Athletics won over 63% of their games and easily made the playoffs on a shoestring budget. Michael Lewis’s book Moneyball—which later became a movie—chronicles the 2002 Oakland Athletics season as a triumph of empirical analysis in baseball. But when other teams jumped into the fray, attempting to reorient their rosters entirely through analytics, many found limited success. The key insight to be gleaned from Moneyball is that analytics has a place in roster construction; at the same time, the last twenty years of baseball show that analytics are not everything.
In Testing Textualism’s “Ordinary Meaning”, Professor Tara Leigh Grove resists the empiricists’ takeover of a wholly different sport: interpretation of statutory text. Professor Grove begins her piece by noting that “[s]cholarship on statutory interpretation has taken an empirical turn.” In particular, scholars have employed empirical methods—e.g., surveys—to ascertain “ordinary meaning.” For these commentators, “ordinary meaning” is an empirical fact, “thereby justifying efforts to test textualism.” (Textualism is a theory of statutory interpretation, popularized by Justice Antonin Scalia, by which jurists interpret statutes according to the statutes’ “ordinary meaning.”) But in Professor Grove’s telling, “ordinary meaning” is also a legal concept that raises normative questions about law interpretation. Continue reading "Textualism and Statutory Interpretation in a Post-Moneyball World"
Feb 1, 2023 Scott CummingsLegal Profession
Etienne Toussaint,
The Miseducation of Public Citizens, 29
Geo. J. Pov. L. & Pol’y 287 (2022), available at
SSRN.
In The Miseducation of Public Citizens, Professor Etienne Toussaint argues that, although the ABA’s Model Rules of Professional Conduct call for lawyers to be “public citizens” with a special responsibility to promote justice and protect the rule of law, the way that law is typically taught undermines these public goals. Specifically, he argues that the formalistic approach to teaching legal rules hides their role in creating and sustaining structural inequality in the legal profession and the broader society.
To counter this problem, Toussaint proposes new pedagogical principles designed to advance a justice-oriented conception of the lawyer’s public citizen role. In his words, for law schools to “engage the moral tensions between the lawyer’s professional role morality and the lawyer’s individual moral compass,” they must teach “public citizen lawyering” as a “countercultural vision of practice-readiness grounded by the normative responsibilities enshrined in the Model Rules.” (pp. 293-94.) These principles derive from the ethical rules—on candor, competence, legal reform, and communication—yet Toussaint reinterprets these ethical mandates to unlock the potential to equip students to fulfill their public citizen role. Continue reading "A Critical Approach to Legal Pedagogy"
Jan 31, 2023 Mary ZieglerLegal History
In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Brett Kavanaugh expressed hope that reversing Roe v. Wade would help deescalate the national abortion conflict. Instead, the months following the decision have opened a new front in the war over reproduction, one in which states have not only criminalized abortion but also explored unprecedented and possibly unconstitutional methods of enforcing criminal laws. Alicia Gutierrez-Romine’s timely, meticulous study of the world of criminal abortion in California offers a powerful glimpse of where we might be heading next. Gutierrez-Romine carefully documents familiar inequities facing low-income and primarily nonwhite patients caught up in criminal investigations, but her book adds to our understanding of the workings of criminal abortion by focusing on a wider cast of characters, especially those facing prosecution for performing or aiding and abetting abortion and providers, including doctors and midwives of color, whose stories are less well known.
Historians such as Leslie Reagan have established that after states criminalized pre-quickening abortion in the later nineteenth century, criminal prosecutions were the exception rather than the rule, at least before the 1940s, and most often took place when a pregnant patient died to medical negligence. Gutierrez-Romine adds nuance to this narrative, exploring the different fates of abortion providers of different races, sexes, and professional statuses. At least at times, status helped to shield white male doctors from the harshest effects of criminal abortion laws—and allowed them to effectively advocate for reform when they did face prosecution. By contrast, physicians of color and midwives faced more scrutiny from the press, from jurors, and from prosecutors. Gutierrez-Romine paints a compelling picture of a system of unequal justice that may closely resemble one emerging in the post-Roe era. Continue reading "The Past and Present of Criminal Abortion"
Jan 30, 2023 Cary C. FranklinConstitutional Law
Richard Schragger & Micah Schwartzman,
Religious Freedom and Abortion,
__ Iowa L. Rev. __ (forthcoming 2023), availible at
SSRN.
Since Dobbs came down, I have given many talks and talked with many journalists about abortion law, and the one topic that always arises is religion. People are aware that the Roberts Court has been deeply solicitous toward religious claimants seeking exemptions from various laws—almost always religious conservatives who refuse to provide services to LGBTQ people, obey COVID restrictions, or provide health plans that cover contraception. People often ask about the prospect of using these expansive protections to secure exemptions from abortion bans for people motivated by religious commitments to seek or provide abortions. Sometimes they ask about using the Establishment Clause to argue that abortion bans are religiously motivated and endorse a religious doctrine many Americans don’t share. People asking these questions are generally optimistic. Sometimes, that optimism is coupled with a certain satisfaction that the Court has painted itself into a corner: the Justices may have expanded protections for religious people in cases involving conservative Christians, but surely, they are now compeled to extend those protections to religious liberals as well.
Richard Schragger’s and Micah Schwartzman’s new article, Religious Freedom and Abortion, provides sharp and insightful analysis of these questions. The article examines recent establishment and free exercise decisions and shows that, in many cases, religious liberals who do not subscribe to conservative Christian conceptions of when life begins or who have religious motivations for seeking or providing abortions should prevail under the Court’s new doctrines. But, the article argues, to think such claimants will prevail is to misunderstand the politics of the Roberts Court’s First Amendment jurisprudence—and the fact that it’s politics all the way down. Continue reading "Religious Liberty for Some"
Jan 27, 2023 Aliza ShatzmanCourts Law
Jeremy Fogel, Mary Hoopes, & Goodwin Liu,
Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals (Nov. 30, 2022), available at
SSRN.
Diversity among judges affects diversity among law clerks. If what gets measured gets managed, California Supreme Court Justice Goodwin Liu opined at a recent Berkeley Judicial Institute event, the dearth of law clerk demographic data has precluded the federal judiciary from making strides toward diversifying appellate chambers. How diverse is the law clerk population? Not very, according to recent survey data by the National Association for Law Placement (NALP). The lack of diversity in one of the legal community’s coveted circles has implications not just for judicial decision-making, but also for the future of the legal profession. As we consider who rises to and through the profession—including to and through the judiciary—diversifying the profession starts with diversifying clerkship hires.
In Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals, retired Federal District Judge Jeremy Fogel, Mary Hoopes, and Liu provide readers with a rare window into one aspect of the opaque clerkship application process: circuit judges’ attitudes about and practices toward hiring diverse clerks. Relying on their relationships and stature as judges (and former clerks), the researchers collect candid insights about judges’ hiring decisions. Under the cloak of anonymity, judges explained that “There’s no monopoly over brains or qualifications; it’s a question of opportunity,” and “Diversity doesn’t mean a diminution in quality; it just means you have to be willing to look in non-traditional areas.” Continue reading "Diverse Judges and Their Diverse Clerks: A Rare Window into Appellate Law Clerk Hiring"
