Author: Sarah Waldeck


Antiques Roadshow

If you are looking for something in addition to the Supreme Court news, check out this New York Times article about an under-theorized aspect of estates and trust law: the pesky personal property that people would have preferred not to inherit, but still can’t quite bring themselves to throw away. The comments (195 as of this writing) are particularly rich, with all sorts of vignettes about the objects with which people find themselves stuck, painful conversations between siblings, and (of course) the wrongdoings of stepparents and half-siblings.


Northwestern’s Third Year

As reported at Above the Law and TaxProf, Northwestern has announced a program that allows its students to complete their legal degrees in two years instead of the usual three. Upon inspection, the two-year program is less revolutionary than it initially sounds. As described by Inside Higher Ed, the two-year program is an accelerated version of the usual fare, with students taking the same courses and credit hours as those in the three-year program.

The two-year option may have stolen the headlines, but what Northwestern announced about its third year is at least as interesting. Northwestern will allow students to spend a semester in full-time experiential programs, such as legal clinics and law firm apprenticeships. The move comes on the heels of the Carnegie Report, which urged law schools to incorporate a practical skills component wherever possible and to think creatively about the third year. Last March Washington and Lee responded by making all third-year courses experiential. While Northwestern has not gone this far, its experiential semester is likely to make its competitors follow suit. (Fear not, aspiring professors. Northwestern will have “research opportunities” available for you.)

P.S. The talk of practical skills reminded me of “reading the law,” or becoming a lawyer through apprenticeship, without ever going to law school. I had thought that reading the law was only of historical interest. But a little surfing revealed what many readers probably already know: four states still allow people to become lawyers after extended apprenticeships (provided they pass the bar exam). You can get the overview here.


Class Action Challenging Wisconsin’s Diploma Privilege

As every law school graduate from UW-Madison or Marquette knows, Wisconsin is the last state in the nation to still extend a diploma privilege. Simply put, if students at these schools take certain courses and attain a particular minimum grade in those courses, they can be admitted to practice law in Wisconsin without taking a bar exam.

The Associated Press is reporting that a federal judge in the Western District of Wisconsin has certified a class action challenging the diploma privilege. Anyone who applies to the Wisconsin bar within 30 days of graduating from law school can join the suit, which alleges that the diploma privilege is unconstitutional because it discriminates against out-of-state graduates.

I haven’t thought much about the constitutionality of the diploma privilege, but I have pondered the wisdom of Wisconsin’s policy. As a Madison grad, the issue for me has always been whether it is too easy to gain automatic admission; in other words, should the required minimum grades be higher than they are? I perceive bar exams as performing an important, albeit imperfect (and perhaps too lenient), screening function. Put succinctly, if a graduate can’t pass the bar in the maximum number of times that they are allowed to take it, the public would be better served by having that graduate in a different profession. But I don’t have any empirical data about whether the Wisconsin diploma privilege provides the same sort of screening as a bar exam. (For example, how many graduates in other jurisdictions never pass that jurisdiction’s exam? How many graduates of Madison and Marquette do not qualify for automatic admission?) I do, however, think that a student’s performance in a semester-long class is a more accurate measure of whether she is qualified to be a lawyer, provided that Wisconsin’s bar is set high enough. (Bad pun absolutely intended.)

I’d be interested in relevant data, if anyone knows it. And I’m sure those who are currently sitting in a bar review course have their own opinions about Wisconsin’s system.


Attention All Flatlanders, Fudgies, and Other-State Equivalents

dock.jpgThis post uses my guest stint to try to collect information for a project about the inheritance and management of family cottages. As the graphic suggests, at least my inquiries are seasonally-appropriate!

I began to think about family cottages in an academic way last summer. While browsing in a small resort town, I saw the local bookstore had more than 20 copies of a text entitled Saving the Family Cottage on its reserve shelf. When I commented on the book’s apparent popularity, the shopkeeper informed me that it was outselling the new Harry Potter. I was intrigued, but not surprised. In this place where visitors boast about the length of their family’s connection to the town, discussions about the fates of family cottages are popular pastimes.

Family cottages go by many names. They are called summer houses, or cabins, or referred to by their location: the lake, the Cape, up north, the shore. They are where families gather to vacation, often at the same time year after year; where grandchildren visit their grandparents; and where cousins play with cousins. As Professors Judith Huggins Balfe and Kenneth Huggins have explained, they are “‘family houses,’ sometimes more than the year-round home” and often “the places of our strongest memories, childhood and adult.” Some of these properties are grand and others are modest. Some are owned by wealthy families, others by families who could not afford them but for an investment made by an ancestor.

Notwithstanding its sentimental glory, the family cottage can be a source of tremendous angst about what will happen when its current owners die, or how the place is currently used and managed, or both. In the absence of more sophisticated estate planning, at some point these cottages are likely to be governed by the law of a tenancy in common. That is, the property is devised in equal shares to siblings, who may hold the cottage long enough to pass it on to their children, and so forth. My project explores the norms and traditions that govern these sorts of households, the role that property law plays, and what, if any, legal reforms should be made in this context.

So here’s my first request: if you are involved in a family cottage, tell me your story. How many generations has the property been in your family? How do you handle carrying costs, improvements, scheduling and use? Is your cottage governed by a tenancy-in-common or other legal arrangement? Is your arrangement rocky or smooth? Some first-rate sociology has been done in this area already, but I would like to supplement with some casual empiricism. So write a comment or send me an email at (One of the things I’ve been struck by while working on this project is how many people have a story to tell.)

Here’s my second request: if you are attorney who advises clients about family cottages, I’d be very interested in talking to you about the sort of advice you give and the legal vehicles you tend to favor. Please send me an email at so that we can get in touch.

P.S. For the uninitiated, a “fudgie” is a person who vacations in northern Michigan. A “flatlander” is a tourist from Illinois. Sometimes (as here) these terms are used with affection, but usually they are not intended to be kind!


More On Endowments

Late last week Crooked Timber had a lively discussion about university endowments, prompted by my recent post here and Larry Solum’s response to it. Those who are interested in the topic should take a look at the discussion, as it partially mirrors the debate that is taking place more generally. I’ve been following Crooked Timber with interest, and here’s several points that have struck me:

* I’ll start with the observation I found most interesting: that some elite institutions have a mission that is as much (or even more) about research than about education. I agree that I need to emphasize this distinction more than I have to date. My proposal that an endowment per full-time student of $300,000 or more trigger less favorable tax treatment could penalize institutions whose primary output is research rather than education. Recall, however, that the most frequently proposed trigger is an absolute endowment value of $1 billion or more. Elite research universities tend to have endowments of this magnitude, so my proposal is not tougher on these institutions than the oft-suggested alternative. In fact, my proposed trigger would exempt some research-oriented universities that would otherwise be subject to new tax rules, such as Cornell and Columbia. The institutions most “negatively” affected by the $300,000 trigger are liberal arts colleges with endowments less than $1 billion and small student populations.

More important, however, is that a research-oriented mission actually strengthens calls for increased endowment spending. The sort of research taking place at America’s premier universities is designed to eventually lead to much social good: the easing of the global food crunch, the elimination of certain diseases, and so on, as well as the creation of knowledge more generally. Few science departments, for instance, are likely to argue that a dollar is better spent in the stock market than in their labs. The ability of researchers and scholars to make productive use of endowment funds seems almost endless, as do the potential gains from their work. This strikes me as a strong argument for elite research universities spending more of their endowments than they currently do.

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On Reading the Paper and Watching MSNBC (Or Perhaps Not)

I will confess to having spent (squandered?) way too much time following the race between Obama and Clinton—more hours than I prefer to count. I’m not even talking about the substance of it all, such as the merits of Obama’s healthcare plan as compared to Clinton’s. I mean the race itself: the endless discussions about the predilections of super-delegates; how voters were expected to break in certain states; what Bill Clinton had said or not said on a particular day. And I continued to closely follow the race long after the mathematicians and pundits assured me that Obama had it wrapped up. (Of course, the pundits keep talking too, but that’s a different issue.)

The whole endeavor has brought to mind a 1998 article called Folding the Times that George W. S. Trow published in the New Yorker. Usually I don’t find personal histories nearly as interesting as their authors seem to, but this one—about the relationship Trow’s father taught him to have with the newspaper—contained a lesson that has stuck with me, even though I seem unable to follow it. But I pass on Trow’s advice nonetheless, in preparation for the general election. (Because the article is almost 10 years old, some of its references are dated. You’ll still get the point.)

I read every work in the paper about Algeria, Ukraine, and Belarus; these are the underreported zones. You should get a sense of what is underreported and what is overreported. Overreported is Newt Gingrich. One tenth of one percent of what has been written about Newt would have done you just fine. You also need to read every word about Shanghai, Chinese billionaires, and the Russian mafia. Stories are boiling (or seem to be boiling) here. If you have a personal reason to take an interest in a Baby Bell reaching out to yet another media, sure, read it, but be aware that the deal will ravel or unravel, happen or not happen, be consummated or not consummated, be important or not important, and that you will just have read ten thousand words.

I read nothing about the Equal Rights Amendment during the time it was in the news, for instance. Either it was going to get to be an amendment or it wasn’t. There are a lot of stories like that: years in the making; infinite detail; you have no say in the outcome; it will happen or it won’t.

Do yourself a favor. Just wait to see if Al Gore is nominated. Wake up the day after the next Democratic convention and ask a friend, “Did Gore make it?” My guess is that he will have made it. Take the fifty-thousand word investment you were prepared to make on Gore’s election prospects and follow another story.

My goal? To follow Trow (in moderation) as the media shifts its coverage from Obama-Clinton to Obama-McCain.


Super-Sized University Endowments: Is Your Alma Mater Richer (or Poorer) Than You Think?

stockxpertcom_id795202_size0.jpgNew York Times recently published an opinion piece by a Harvard alum who was refusing to make a donation to her alma mater, which in 2007 reported an endowment of more than $34 billion. Yesterday the Times reported on a group called Harvard Alumni for Social Action, whose goal is to convince Harvard to use its endowment in untraditional ways, such as for the support of colleges in Africa. As the Harvard alum opined, “Many colleges may genuinely still need alumni contributions to stay solvent, but Harvard isn’t one of them — nor are Yale, Princeton or several other super-rich universities.”

Endowments provide plenty of fodder for discussion and this month I plan to do at least a couple of posts about them. Today I want to start with the preliminary question of how to determine whether a university or college is “super-rich.” This is a critical inquiry, because everyone agrees that if Congress adopts measures designed to spur endowment spending, most of these measures should apply only to the wealthiest institutions. In my estimation, this means those institutions with an endowment per full-time student of $300,000 or more. In 2006, about 30 universities and colleges fit this description.

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Anthropologists Debate Female Circumcision

TierneyLab has a post about the annual meeting of the American Anthropological Association, which included a panel on female genital cutting (FGC). Some of the panelists have stated that the Western “zero tolerance” approach to FGC represents cultural imperialism and a fundamental misunderstanding of certain cultural heritages. Other panelists have maintained that because of the American tradition of infant male circumcision, as well as the genital cosmetic surgery that some American women voluntarily undergo, those who argue against FGC speak from glass houses.

At the time of this writing, the TierneyLab post had generated a whopping 208 comments. Most, although not all, argued against the position taken by these panelists and emphasized the drastic physical effects of FGC as well as the circumstances under which it is often performed. But it’s hard to argue with one basic point of the post: genital cutting is a cultural phenomenon.

To wit, consider the experience of a medical center in Seattle which serves a large Somali immigrant population. The tale is recounted in The Seattle Compromise: Multicultural Sensitivity and Americanization, by Doriane Lambelet Coleman. (You can find the article at 47 Duke L.J. 717 (1998)). Many Somali mothers requested that the medical center circumcise their daughters; they were mystified that the hospital would circumcise boys but not girls. The mothers were clear about what they wanted: a symbolic cut on the hood of the clitoris, one that would draw blood but not excise any tissue. The mothers believed that as a cultural and religious matter, some form of genital cutting was necessary. If the hospital did not do it, the mothers would take their daughters to Somali “midwives” in the Seattle area or send them back home. In either event, their daughters would experience far more genital cutting than the mothers were proposing, possibly even complete removal of all external genitalia. The medical center convened a special panel to consider the matter. Eventually the hospital agreed to perform the cut suggested by the Somali mothers, with the use of a local anesthetic, and only on girls old enough to understand the procedure. The hospital was hopeful that this would serve as a transitional measure and that second-generation Somalis would abandon the rite.

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Accommodating Breastfeeding Mothers

mermaid.jpgBefore my guest visit at Concurring Opinions ends, I want to comment on a case that received media attention in September and October: Currier v. National Board of Medical Examiners. The Massachusetts appeals court granted a preliminary injunction ordering the National Board of Medical Examiners (NBME) to allow Sophie Currier additional break time so that she could pump breast milk during a medical licensing exam. The Supreme Judicial Court denied the NBME’s request for further judicial review. This was undoubtedly a victory for Currier, but what about for other breastfeeding mothers?

Over at, Dahlia Lithwick asked why more female columnists did not comment on Currier. She speculated that women are so beaten down by the Mommy Wars that they chose to remind quiet; or that some women silently wondered why a mother of two small children would start a medical residency; or that many women believed that because they breastfed and worked without accommodation, Currier should as well. I’ve found it difficult to discuss Currier, but not for any of the reasons that Lithwick suggested. I usually applaud policies and legal results that help women balance families and careers . But here I’m concerned that Currier’s legal victory will ultimately undermine the goal of widespread accommodation of breastfeeding employees.

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Squirrel Cop

Need some time away from the Thanksgiving festivities? Disappointed by (or don’t care about) the football scores? Spend 15 minutes listening to the segment Squirrel Cop from PRI’s This American Life. (When you link to the site, click on the “listen to full episode” icon and then fast-forward to minute 19:52; it’s worth it.)

In a recent post, I criticized James Q. Wilson and George L. Kelling for not providing a more substantive reflection in an Atlantic essay that revisited their broken windows hypothesis. But when I teach criminal law, I use broken windows to introduce the concept of police discretion and to remind students that the practice of policing usually is far-removed from what appears on Law and Order. The segment from This American Life accomplishes the same thing, albeit with much more levity than I usually muster in class.

A quick apology that I was unable to streamline the listening process. This American Life won’t give permission for their audio to be posted on any server but their own.