Author: Sarah Waldeck


Introducing Rachel Godsil

Rachel Godsil is the Eleanor Bontecou Professor of Law at Seton Hall Law School. Her teaching and research interests include race and social science, constitutional law, property, education, and environmental law. Her recent scholarship focuses on implicit bias and the role of perception on public policy decisions and institutional treatment of people of color.  Professor Godsil is a co-founder and research director for the American Values Institute, a national consortium of social scientists and law professors focusing on the role of implicit bias in law and policy. She is currently working on the link between stereotype threat and the success of students of color in law. Professor Godsil has written amicus briefs to the Supreme Court on behalf of research psychologists in the Fisher v. University of Texas and on behalf of the National Parent Teacher Association in the Parents Involved in Community Schools v. Seattle School District litigation at the Supreme Court. She has written numerous articles and book chapters on issues of race and property and is the co-editor of Awakening From The Dream:  Civil Rights Under Siege And The New Struggle For Equal Justice (Carolina Academic Press, 2005).

Welcome, Rachel!


Introducing Marc Poirier

Professor Marc R. Poirier is a Professor of Law and the Martha Traylor Research Fellow at Seton Hall University School of Law.  Marc writes and teaches in the areas of property theory, environmental law, administrative law, coastal land use, regulatory takings, and law and sexuality.  Two of Professor Poirier’s articles have won Dukeminier Awards from the Williams Institute at UCLA as among the best articles in the field of law and sexuality and gender identity.  Marc has also been chair of two AALS Sections: (1) Property and (2) Law and Interpretation.  He currently serves on the Society of American Law School’s (SALT) Committee on Issues in Legal Education.

Marc’s work includes:

Brazilian Regularization of Title in Light of Moradia, Compared to the United States Understandings of Homeownership and Homelessness, 44 U. Miami Inter-Am. L. Rev. (2013);

Name Calling: Identifying Stigma and the “Civil Union”/”Marriage” Distinction, 41 Conn. L. Rev. 1425 (2009);

The Cultural Property Claim within the Same-Sex Marriage Controversy, 17 Colum. J. Gender & Law 343 (2008).

Marc’s current works in progress include an article examining why the Boy Scouts of America’s proposed local option compromise on policy towards LGBT membership did not and could not satisfy the concerns of the Scouts’ constituencies; an article arguing that the key issue in the ongoing same-sex marriage controversy is localism, not federalism; and an article on neighborliness, risk, and scale in the management of coastal land.  He is also working on what he hopes will become a book on hate crimes as territory.

Welcome, Marc!


Introducing Christine Kexel Chabot

Christine ChabotI am pleased to welcome Christine Kexel Chabot, who will be guest blogging during the month of July.  Christine is a lecturer at Loyola University Chicago School of Law, where she has taught since 2010.

Christine’s empirical research focuses on judicial decision-making.  For example, a recent Hastings Law Journal article analyzes the Senate’s ability to constrain presidents’ choices of Supreme Court nominees over an extended period. Her working paper, Schooling the Supreme Court, makes use of a unique period when Justices who attended law school sat with Justices who entered the profession by reading the law alone.

Before coming to Loyola – Chicago, Christine practiced in the Ann Arbor and Chicago offices of leading national law firms and clerked for the Hon. Jane R. Roth of the U.S. Court of Appeals for the Third Circuit.  Her interest in judicial decision-making stems from her appellate and telecommunications litigation experience.

Welcome Christine!


Kentucky: Boy, 5, Kills Sister, 2

That’s not my headline.  It was in the New York Times earlier this month, in the section where the paper provides short blurbs about what is happening around the country.

My youngest daughter is in kindergarten.  Here is a list of some of the things that she either cannot do or is not allowed to do: cross a busy street by herself; pour milk from a full gallon jug; ride in a car without a booster seat; and tie her shoes (I know . . . she’s working on that one).  She is, however, a highly capable kid.  So it might be fairer to her if I listed some of what she can do:  get herself ready for school; ride her bike around the block; make her bed; use a variety of electronic devices that begin with an “i”.

But regardless of whether the list is of “cannots” or “cans,” it does not square with this statement from the county coroner in Kentucky:

 Mr. White said that the .22-caliber rifle had been kept in a corner and that the family had not realized a bullet was left inside it. “It’s a Crickett,” Mr. White said, referring to a company that makes guns, clothes and books for children.  “It’s a little rifle for a kid,” he said, adding, “The little boy’s used to shooting the little gun.”

I grew up in a small Wisconsin town.  At my high school, so many teachers and students were absent on the first day of deer season that school might as well have been cancelled.  Today some of my close relatives keep hunting rifles in their closets.  So while I absolutely do not want to suggest that I know anything about the family that suffered this terrible tragedy, I am familiar with the kind of culture in which a .22-caliber rifle is put in a corner.

Which is not to say that I wasn’t jarred by the phrase “a company that makes guns, clothes and books for children.”  Or that I expected, when I visited Crickett’s website, to see child-sized guns in bright blue and pink.   And watch out Joe Camel, because Crickett’s mascot is a jolly green frog sporting a rifle, boots, and a hunting cap.

Footbinding, smoking, drunk driving—these are all legend among law and norms scholars.  But with few exceptions, almost no one talks about trying to change gun culture through the sort of small, incremental changes that have made such a difference elsewhere.  Certainly it is daunting to even think about how to spark change.  And it’s also true that those whose ideas would make a difference would only receive posthumous gratification, because change might not actually be realized until my kindergartener has great-grandchildren.

But Boy, 5, Kills Sister, 2.


Introducing David L. Schwartz

I am happy to welcome David L. Schwartz, who will be a guest blogger during the month of May.

Dave joined the faculty of Chicago-Kent College of Law in 2009, where he is presently an Associate Professor of Law and Co-Director of the Center for Empirical Studies of Intellectual Property.  From 2006 until 2009, Dave was an Assistant Professor of Law at the John Marshall Law School in Chicago. Prior to entering academics, he spent over a decade as an intellectual property law practitioner, including being a partner at two intellectual property boutique firms in Chicago.

Dave’s main area is empirical studies of patent litigation. He is also interested in judicial decision-making and the use of legal scholarship in judicial opinions.  Some of his works include Analyzing the Role of Non-Practicing Entities in the Patent System99 Cornell L. Rev. (forthcoming 2014) (with Jay Kesan), Standards of Proof in Civil Litigation:An Experiment from Patent Law, Harv. J. L. & Tech.(forthcoming 2013) (with Christopher Seaman), and  An Empirical Assessment of the Supreme Court’s Use of Legal Scholarship, 106 Nw. U. L. Rev. 995 (2012) (with Lee Petherbridge).

Welcome Dave!


Constitutional Law Colloquium

Loyola University Chicago School of Law is organizing the fourth annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 1 and end midday on Saturday, November 2, 2013.    The conference aims to bring together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Presentations will be grouped by subject matter.

The conference is organized by Professor John E. Nowak, Raymond and Mary Simon Chair in Constitutional Law; Professor Juan Perea; Professor Alexander Tsesis; and Professor Michael J. Zimmer

The Law Center is located on Loyola’s Water Tower campus, near Michigan Avenue’s Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.

This announcement invites abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. We also welcome attendees who wish to participate in audience discussions without presenting a paper. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.

Eligibility: The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching full-time and part-time at the university, law school, and graduate levels on all matters of constitutional law.

Application Procedure: The registration and abstract submission deadline is June 15, 2013. Conference organizers will select abstracts on a rolling basis.

Registration at:

Information at:

Topics, abstracts, papers, questions, and comments should be submitted to:

Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.


Data Streams and E-Textbooks

Today “smart” e-books are in the news.  These books give professors access to a stream of data about how individual students are using their e-books—whether they are skipping pages, highlighting specific passages, or taking notes in the book. The software that makes such monitoring possible even provides an “engagement index” for each student.  The news stories I’ve encountered have mostly focused on how the data enables professors to identify and then reach out to students with poor study habits.

I don’t know how to spell the sound I made when I first heard this particular news angle, but it was something close to the classic UGH.  The company that created the software says its surveys indicate that few students or colleges have privacy concerns.  But I know I would feel like I was spying on the adults I teach.

Which is not to say that I couldn’t put the data stream to some use, at least in an aggregate form.  If a meaningful portion of my class does not appear to be reading the textbook but is nonetheless performing well in class and on exams, then my course is too easy or the textbook is a dud, or some combination of the two.

The data stream may also be of interest to the institutions that employ professors.  Every university, college, or graduate school has at least a couple gut courses—classes in which students can do very little work and still get good grades.   One concern in law schools is that GPA-conscious students will flock to a gut course instead of one that would better prepare them for the bar and eventual practice.   A dean who is trying to convince a professor that her class needs to be harder could put the data from smart e-books to very effective use.   In fact, some professors will be disinclined to embrace smart e-books once they realize that students aren’t the only ones who can be watched.

Last, I am struck by the connection between the emergence of smart e-books and a post Larry wrote a few weeks ago.  Larry’s post laments that as e-books become increasingly dominant, he will no longer be able to peruse the bookshelves of colleagues or friends as a means of sparking a connection or sizing them up.   E-books do not serve the same (often inadvertent) signaling function as a print book.  E-books mean that no-one can get a window into my interests by scanning my shelves or seeing what’s open on my coffee table.  They also mean that I can no longer pick out law students on the subway by looking for a telltale red binding.  But with smart e-books, a select group will know more about these students’ reading habits than most of us would have imagined just a few years ago.


Reconciling Ehrlich and Macool (Or, What’s In a Signature Anyway?)

Recently I wrote about In re Ehrlich, 47 A.3d 12 (2012), a trusts and estates case pending before the New Jersey Supreme Court that will serve as a bellwether of what can be probated in harmless error jurisdictions.  Under the Uniform Probate Code’s harmless error rule, a defective document can be probated if there is clear and convincing evidence that the decedent intended it to be a will.

As I previously explained, the proponent in Ehrlich wants to probate an unsigned and unattested document that otherwise reads like the usual formal will.  The decedent had noted in one corner of the document that he mailed “the original” to his executor.  I suggested that the dissenting appellate division judge, who wanted to deny probate, was applying a substantial compliance standard instead of the harmless error rule, which New Jersey adopted in 2004.

But another possibility is that the dissent and majority have different understandings of testamentary intent.  This would help reconcile Ehrlich with In re Macool, 3 A.3d 1258 (2010), another important harmless error case.

In Macool, the dissenting judge in Ehrlich voted with the majority to hold that probate under the harmless error rule requires proof that the decedent (1) actually reviewed the document and (2) gave final assent to it.  The Macool court refused to probate a document that a lawyer had dictated while Macool was in his office; although the lawyer’s secretary had typed up the document, Macool never saw it because she died just an hour after leaving the lawyer’s office.   The court explained that in the absence of review and final assent, it could not be certain the document reflected Macool’s final testamentary wishes.

Similarly, the dissenting judge in Ehrlich may not see adequate evidence of testamentary intent.  Perhaps from the dissent’s perspective, all we have is an unsigned and unwitnessed document.  The other evidence—the handwritten notation; the fact that the decedent drew up the document just before he had life-threatening surgery; and that he executed health care directives on the same day that the document is dated—all of this is simply not enough to convince the judge that Ehrlich gave final assent to the document.  In other words, the dissenting judge may not be sufficiently certain about Ehrlich’s testamentary intent.

The dissent in Ehrlich writes that he now believes Macool “gives too expansive an interpretation” to the harmless error rule.  Perhaps the dissent fears that Macool opened the barnyard door to the probate of documents that will fall short of what the dissent believes is necessary to establish testamentary intent.  In particular, the dissent appears reluctant to find testamentary intent without a decedent signature.

I, for one, have never been concerned about Macool throwing open the barnyard door.  In fact, I have argued that Macool partially closed it.  I’ve written more about that here.


The Relationship Between Substantial Compliance and Harmless Error

Estates and trusts junkies are watching what the New Jersey Supreme Court will do with the harmless error doctrine in In re Ehrlich, 47 A.3d 12 (2012), a case it has recently agreed to review. The New Jersey appellate court and most legal reporters framed Ehrlich as determining the scope of In re Macool, 3 A.3d 1258 (2010), which held the harmless error rule can only be applied when the decedent actually reviewed the document in question and gave final assent to it. But really the central question in Ehrlich is about the relationship between harmless error and substantial compliance. Because New Jersey is generally a progressive jurisdiction on estates and trusts issues, Ehrlich may reveal much about how intent-oriented courts are inclined to be.

After Ehrlich’s death, a fourteen-page document labeled “Last Will and Testament” was found in his home. Ehrlich was an attorney and the document was typed on legal paper with Ehrlich’s name and law office address printed in the margin of each page. The document was not signed or witnessed, but Ehrlich handwrote on the cover page, “Original mailed to H.W. Van Sciver,” whom Ehrlich had named executor. Ehrlich prepared the document just before he had life-threatening surgery and on the same day he executed a power of attorney and living will. The document left the bulk of Ehrlich’s estate to his nephew, Jonathan. Under intestacy, the estate would be split between Jonathan and another nephew and niece. Ehrlich had not talked to the other nephew and niece for more than 20 years.

You all know where this story is heading. Sciver died in 2005 and the original will could not be located. Nothing suggests that the original was ever returned to Ehrlich. This means the usual rules governing lost wills, which contemplate the will last being in the possession of the testator, cannot neatly resolve the case. To get the bulk of Ehrlich’s estate, Jonathan must convince the New Jersey Supreme Court to allow probate of the document found in Ehrlich’s home. Because the document is neither signed nor witnessed, everything turns on how the Court interprets the harmless error rule, which the New Jersey legislature adopted a few years ago. If you are need of a lawyer to help you with probate then you might be interested in checking out this new york wills lawyer here, but there are plenty of others lawyers that you can use.

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The AAP’s New Circumcision Policy

I sighed heavily at last week’s news that the American Association of Pediatrics (AAP) had changed its policy on routine neonatal circumcision.  Nearly everyone expected the AAP to move away from its neutral stance and state that the health benefits of the procedure outweigh its medical risks.   So it wasn’t the substance of the policy that made me sigh, although I wish that the AAP had at least remained neutral.  Rather, it was the extent to which, although details change, the central arguments remain the same.

I have written a lot on this blog about how non-religious circumcision is no longer a medically-motivated phenomenon.  Instead, it is a practice driven largely by social norms and a desire to make boys look like their fathers and peers.  (If you want to read old posts, start with this one, which also explains some of the medical research behind the new policy.)

Because routine neonatal circumcision is mostly about conformity, I’ve previously questioned to what extent a new policy will actually change parental behavior.  Circumcision rates in the United States have been declining for more than a decade; at present they hover just under 55 percent nationwide.  But in some areas of the country, like the Pacific Northwest, less than 20 percent of male newborns are routinely circumcised.  If conformity is what parents care about, I’m not sure that a new policy from the AAP will make much of a difference—at least in parts of the country where non-circumcision is the norm.

What should most worry non-circumcision advocates is the language in the new policy stating that third-party coverage of circumcision is warranted.  Many experts partly attribute the low circumcision rates in the Pacific Northwest to decisions to remove the procedure from Medicaid funding in the 1980s and 1990s. If lack of insurance coverage helped launch the trend toward non-circumcision, a change in coverage may lead to a slow reversal in favor of circumcision.

Or maybe not.  Once non-circumcision is the norm, will the AAP’s new policy—which states the health benefits of the procedure outweigh its risks, but also that the decision whether to circumcise should be left to parents—meaningfully change behavior?  I doubt it, but I will be closely watching what happens in the Pacific Northwest to find out.