Author: Sarah Waldeck


Harmless Error (The Estates and Trusts Kind)

As I’ve previously discussed on this site, Uniform Probate Code 2-503 allows courts to probate documents that were improperly executed upon clear and convincing evidence that the decedent intended the document to be a will.  New Jersey, which codified this harmless error rule several years ago, finally has a published appellate decision interpreting it.  The case, In re Will of Macool (2010 WL 3608686 (N.J. Super. A.D.)) is notable because it may provide a counterweight to In Re Kuralt, in which a Montana court arguably extended 2-503 to probate a document that indicated how the decedent wanted to dispose of his property but was not intended to be a will. 

In Macool, Louise wrote a will in 1995 and codicil in 2007.   Her husband, Elmer, was the primary beneficiary of these documents and his children (Louise’s stepchildren) were the contingent beneficiaries.   In 2008, Elmer died and Louise went to her lawyer to revise her estate plan.  The crux of her new plan was to reduce what her stepchildren were taking and to make gifts to her niece and godchild.  Louise gave her lawyer handwritten notes that summarized her new plan; these notes were a bit cryptic and it’s hard to imagine that the lawyer would have known what to do with them in the absence of oral clarification from Louise.  The lawyer dictated a complete document while Louise was in his office and a secretary typed up the dictation that same afternoon or the next morning.  Louise was supposed to come back at a later date to review the document, but she died about an hour after leaving the lawyer’s office. 

The trial court found, and the appellate court agreed, that Louise intended to alter her testamentary plan to include her niece and godchild.  In refusing to probate the document, however, the court distinguished between evidence “showing decedent’s general disposition to alter her testamentary plans” and evidence establishing that the decedent “intended the draft will prepared by [the attorney] to constitute her binding and final will.”  The court held that for the harmless error rule to apply, the proponent of a writing must prove by clear and convincing evidence that “(1) the decedent actually reviewed the document in question; and (2) thereafter gave his final assent to it.”  Read More


Online Employment Discrimination and Sexual Harrassment Training

I recently received an email from my employer warning that I might be ineligible for coverage under its legal defense and indemnification policy unless I went online and completed two tutorials: one on sexual harassment and the other on employment discrimination.  I duly complied with this directive and then passed the online “mastery test” at the end of each tutorial.  This achievement is nothing to crow about, however, because my 10-year-old daughter passed the test without even taking the tutorial.  

I could use this directive from my employer as a leaping off point for several discussions, including (1) whether my institution should be shielded from vicarious liability because it took reasonable care to prevent harassing or discriminatory behavior, and (2) whether the tutorial I completed may have sought to “overcorrect” by describing as illegal behavior that is merely questionable.  But I will leave these weighty questions to colleagues who actually teach and write about employment discrimination.  Instead, I want to ask a more general question about whether we can reasonably expect much good to come from these online tutorials.   My own experience suggests no, primarily because the online format allowed me to dramatically disengage from the material.

CURSORY is the word that summarizes my approach to the tutorials.   The sexual harassment tutorial was supposed to take 30 minutes; I completed it in less than 10.  The employment discrimination tutorial was supposed to take 60 – 90 minutes, but in less than 25 I flew through web pages that summarized (hang onto your hats): Title VII, the Equal Pay Act, The Age Discrimination in Employment Act, the Americans With Disability Act, the Fair Labor Standards Acts, the Family Medical Leave Act, Executive Order 11246, the Genetic Information Non-Discrimination Act, the Uniformed Services Employment & Re-employment Rights Act of 1994, the Jobs for Veterans Act, the New Jersey Division on Civil Rights, plus more.   I skimmed each individual page only long enough to insure that I wasn’t going to make an error that would send me back to the beginning. Read More


No For Sale Signs Allowed IV

With summer at an end, I have a final post about the ban on for sale signs in a Chicago suburb.  (You can read the others here, here and here.)  In this last post, I offer some observations about how community norms and identity play a role in perpetuating the ban.

In prior posts, I’ve written that many in the Village are unaware of how problematic the ordinance is under the First Amendment.  But some residents undoubtedly know, either because of their own familiarity with constitutional law or because the issue is occasionally raised in the opinion section of the local paper or on local blogs.  Political will to change the ordinance, however, seems close to non-existent. 

This lack of will may partly reflect the political reality within the Village.  The same political organization has been in control for more than thirty years and its candidates almost invariably support the Village’s integration policies, which include the ban.  Some residents probably also appreciate the aesthetic effects of the ordinance, because the lack of signage makes the Village prettier than it otherwise would be.  Other residents may feel that the issue doesn’t warrant action, either because they are already inclined to use a realtor to sell their house or because the inability to use a sign does not deter them from entering the for-sale-by-owner market.  I also suspect, however, that some residents who are aware of the constitutional issue would describe themselves as trading freedom of speech for integration. Read More


New Hires

As the end of August approaches, I’ve been thinking about what schools should do to support those who are about to begin their first years as law professors. 

I’m hoping readers will share any useful measures their schools take to help ensure success.  I’m not soliciting ideas about large scale institutional measures such as pre-tenure leave or yearly performance reviews, valuable as these might be.  Instead I’m interested in more discrete steps that schools can take during the first and second years of an academic career to help promote quality scholarship, improve performance in the classroom, and inculcate norms about institutional service.


No For Sale Signs Allowed III

This third post about why a municipality’s ban on for sale signs persists more than 30 years after Linmark focuses on the role of real estate agents and the local realtor’s association. (You can read the prior posts here and here.)  These are the players best-positioned to legally challenge an ordinance that affects the sale of property.  Moreover, the use of signs by one agency would likely create pressure for others to use them, which might make the practice in the Village tip in favor of signs.

When I first began examining the Village’s ordinance, I hypothesized that real estate agents have a financial incentive to comply with the ordinance because the perceived inability to use a for sale sign makes selling by owner extraordinarily difficult.  I’ll begin with the economics of the ban, even though my research hasn’t been terribly revealing.  Then I’ll turn to the norms of the local real estate industry, to which my initial hypothesis did not attribute enough significance. Read More


No For Sale Signs Allowed II

In a recent post I marveled that a particular Chicago suburb has no for sale signs, even though we are in the midst of the worst housing market in recent history.  The suburb has an ordinance banning for sale signs (you can read its text in the earlier post) and I wondered why the ban continued to have force even though the Supreme Court ruled that such ordinances were unconstitutional in the 1977 case Linmark Associates v. Willingboro.  Here’s what I speculated: 

Most residents assume that ordinances in the local statutory code are good law; that is, they perceive themselves as being legally prohibited from using a For Sale sign.  Those residents who are familiar with First Amendment law are nonetheless deterred from using a sign because (1) there is a residual risk that the Village will try to enforce the ordinance; and (2) there is reason to worry about sending a market signal of “desperation” if you are the sole seller using a sign.  As for real estate agents, most know that the ordinance is unconstitutional but they have incentives to comply with it nonetheless. The perceived inability to put a For Sale sign in one’s yard makes it extraordinarily difficult to sell by owner . . . . Furthermore, as repeat players in the Village, real estate agents may be reluctant to do anything that the Village will view with displeasure. 

I’ve spent the last month researching whether this hypothesis is correct.  In this post, I want to focus on the effect of the ordinance remaining on the books and on the actions of the Village, both with respect to its own citizens and with real agents.  The bottom line is that if a municipality carries on as though it is acting constitutionally, a lot of people will believe that it is. 

Read More


Ritual Nicks and the American Academy of Pediatrics

For the second time, a sensible effort to prevent female circumcision has been stymied.  Last week, the American Academy of Pediatrics (AAP) bowed to intense pressure and rescinded a policy statement that suggested doctors in certain communities could perform a ritual pricking or nicking of the clitoral tissue. 

Perhaps this outcome could have been predicted by doctors who work at a Seattle-area medical center which serves a large Somali population.  As I’ve previously described on this site:

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.  (This tale is recounted more fully by Doriane Lambelet Coleman in The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 Duke L.J. 717 (1998)).

When the media got wind of the hospital’s intentions, it was besieged by critics.  Under immense public pressure and the threat of litigation, the hospital abandoned its plan.  Professor Coleman hypothesizes that most of the interests that lobbied against the hospital did not even understand what it was proposing; once they heard “female circumcision,” they stopped listening.

The AAP announced that it  “retracted the policy because it is important that the world health community understands the AAP is totally opposed to all forms of female genital cutting, both here in the U.S. and anywhere else in the world.”  Could anyone seriously have argued otherwise?  The now-rescinded policy was aimed at preventing female circumcision.  It reflected the reality that parents who want their daughters circumcised will find a way to have the procedure done.  Because a ritual nick would save some girls from far more drastic procedures, the AAP should have been congratulated for its pragmatism instead of pilloried for seeming to condone violence and discrimination against women. 

The other point is that anyone who opposes the now-rescinded policy but endorses neonatal male circumcision lives in a glass house.  Like female circumcision, male circumcision is a cultural phenomenon.  (You can read other posts on this point herehere and here, and an article here).  Unlike the sort of ritual nick proposed by the AAP, however, male circumcision involves tissue removal and permanently changes the penis.  Most of us are comfortable with this result because we are socially and culturally accustomed to it.  A ritual nick of the clitoris, on the other hand, is entirely foreign to most people in the United States.  But we should not hold the cultural choices of others to more exacting standards than we hold our own.


No For Sale Signs Allowed

In the midst of the worst housing market in modern memory and more than thirty years after the Supreme Court’s ruling in Linmark, there is suburb of Chicago in which For Sale signs are nowhere to be found.  This is the first of several posts exploring why.  The story, which I am still unpacking, reveals much about what happens when government fails to formally repeal unconstitutional laws and about how community norms can trump Supreme Court precedent. 

The single most important (although not the most interesting) element in the story is the following ordinance, which bans most for sale and for rent signs and was adopted in an effort to prevent white flight:


The President and Board of Trustees find as follows:

A. That a prohibition of “For Sale” and “Sold” signs has been recommended by the Commission on Community Relations on the basis that said signs tend to encourage unfair housing practices and tend to defeat the purposes of the Village’s Human Rights Program.

B. That a prohibition of “For Rent” signs has been recommended by the Commission on Community Relations for the following reasons:

1. “For Rent” signs presently are used more frequently in areas that have a greater percentage of occupancy of minority residents. “For Rent” signs are seldom used in connection with buildings that have no minority occupants. The use of these signs therefore tends to “signal” that minorities may be more welcome in some areas of the Village than others and this tends to segregate areas contrary to the policy of the Village to maintain an integrated community.

2. A proliferation of “For Rent” signs encourages panic peddling and block busting.

3. “For Rent” signs may give an appearance of community instability when concentrated in a limited geographic area.

4. A proliferation of “For Rent” signs may infer that an area is less desirable than other areas.

5. A system of apartment management that refers tenants to the source of rentals will encourage greater professionalism in apartment management.

It shall, therefore, be unlawful for any person to construct, place, maintain or install a “For Sale”, “Sold” or “For Rent” sign on any property developed for residential use in the Village. The term “For Sale” sign shall include signs carrying the following or similar words: “Open House” or “Open for Inspection” and shall include any other devices placed on the property to indicate that the property is for sale.

In the case of new construction of residential property or conversion of an existing structure to condominium use where a condominium declaration is recorded, a “For Sale” sign shall be permitted on the property until the property or condominium units are sold, but not to exceed one and a half (1 1/2) years after issuance of a certificate of occupancy for a new building or from the date the “For Sale” sign is posted in the case of a conversion.

In part of the ordinance not reproduced here, the Village allows Open House signs to be displayed for a period of time on Sundays.

In Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977), the Court struck down a similar ordinance.  Like the ordinance reproduced above, Willingboro’s law was aimed at maintaining stable, integrated neighborhoods by prohibiting homeowners from placing For Sale or Sold signs on the lawns.  While the Court acknowledged the importance of Willingboro’s goal, it nonetheless held that the ordinance unconstitutionally interfered with freedom of speech.  Nothing distinguishes the Village’s ordinance from the one in Linmark and all academic and legal commentary I’ve found on the Village’s ordinance agree that it is plainly unconstitutional.

This is what I had always assumed was the explanation why, despite Linmark, the Village has no For Sale signs:  Most residents assume that ordinances in the local statutory code are good law; that is, they perceive themselves as being legally prohibited from using a For Sale sign.  Those residents who are familiar with First Amendment law are nonetheless deterred from using a sign because (1) there is a residual risk that the Village will try to enforce the ordinance; and (2) there is reason to worry about sending a market signal of “desperation” if you are the sole seller using a sign.  As for real estate agents, most know that the ordinance is unconstitutional but they have incentives to comply with it nonetheless. The perceived inability to put a For Sale sign in one’s yard makes it extraordinarily difficult to sell by owner; without the ability to put up a sign, sellers need access to the multiple listing service to make large number of buyers aware that a house is available.  Furthermore, as repeat players in the Village, real estate agents may be reluctant to do anything that the Village will view with displeasure.  All of these factors worked together, I thought, to chill For Sale commercial speech within the Village.

As I have begun to ask more questions, I am learning that while my initial assumptions were not exactly wrong, they are far less nuanced than what is necessary to fully describe why a de facto ban on for sale signs persists.  More on this in later posts.


Land Transactions Meet the Kentucky Derby

If you don’t know him already, meet Conveyance, with odds of 18/1 according to online sports book SBGGLOBAL.

I can’t be the only Property professor who is finding the urge to place a wager almost irresistible.

p.s. The picture is from


Book Review: Dead Hands: A Social History of Wills, Trusts, and Inheritance Law

Lawrence M. Friedman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law (Stanford University Press, 2009) 230 pp.

I opened Lawrence Friedman’s Dead Hands: A Social History of Wills, Trusts and Inheritance Law already sold on his central premise: “[b]ig changes in the law of succession necessarily reflect big changes in society” and “smaller, more technical changes” can be just as interesting to those who care about “social meaning and the impact of the law.” My predisposition to agree with Friedman may explain why I was both admiring and disappointed as I read the book.

Let’s begin with the admiration. Friedman deftly weaves explanation of technical legal doctrines, case summaries, and description of the historical and sociological changes that have prompted reform of estates and trusts law. His chapter on the rule against perpetuities illustrates the point. Readers get a two-page comprehensible summary of the rule’s operation and idiosyncrasies, a brief explanation of various reforms, and the observation that reforms accept the rule’s underlying premise that dead hand control must eventually end. Then Friedman discusses the move to outright abolition of the rule, notes how banks anxious to attract trust monies lobbied for abolition, and seizes the opportunity to mention asset protection trusts. Friedman next writes that abolition and asset protection trusts would not be possible “without a bigger, broader change in the culture,” namely (quoting Joel Dobris) “we like rich folks these days.” Friedman then discusses how culture has changed in ways that make ordinary people feel as though they can relate to the rich. (One might wonder whether this affection for the wealthy will survive the Great Recession.) Last, Friedman speculates about whether abolition of the rule or asset protection trusts pose any real danger to the polity and concludes that neither should keep us up at night. I’m breathless just thinking about all that Friedman manages to cover in this 14-page chapter. Indeed, the same can be said about the entire book. Friedman traverses a tremendous amount of ground in 230 pages: intestacy, wills, will contests, will substitutes, dynastic and caretaker trusts, charitable giving, taxes, and of course the rule against perpetuities. Friedman touches on everything that is likely to be covered in an introductory Estates and Trusts course, plus more.

So there is the primary source of the admiration. What about the disappointment? Friedman focuses on the adoption of various reforms and shows how the reform is reflective of broader change. For example, we would not have seen the decline of dower and the fall of the doctrine of coverture without profound changes in societal conceptions of what it means to be a “wife” or “husband.” Similarly, Friedman sees “a trend, or at least the beginning of a trend” as states “respond to changing times” by extending intestacy rights to domestic partners. But the law of estates and trusts does not always follow a linear path forward; sometimes it sputters and stalls. This kind of gear grinding can be just as revealing about the connection between law and society as when reform is achieved. For instance, there was once widespread anticipation that many states would adopt a community property system. Today just nine states have done so. The 1990 Uniform Probate Code (UPC) has an elective share mechanism designed to reflect the principle that all property earned during the marriage belongs equally to both spouses. But some states that otherwise embraced all or part of the UPC have declined to adopt its elective share provisions. The lukewarm reception for community property principles says quite a lot about definitions of “earn” and “own” and societal conceptions of marriage. Friedman spends very little time on the stalls and sputters, even though they too reflect broader societal trends.

The second reason for my disappointment is probably unfair, as I suspect that I am not Friedman’s target audience. Dead Hands is almost entirely descriptive, albeit sometimes brilliantly so. It provides a lens through which to view the law of succession, but is largely agnostic with respect to the content of the law or its future direction. Those who are well-versed in the law of succession will likely already be familiar with much of what Friedman writes, even if they have not yet seen it so nicely explicated. In other words, estates and trusts experts are unlikely to find much in Dead Hands that is truly new to them.

Dead Hands, however, will be useful to at least two audiences. The first is the contingent of property and family law professors who are “drafted” each year to teach Estates and Trusts and who have not yet had a chance to discover why it is one of the most interesting courses in the curriculum. Dead Hands provides a framework for organizing an introductory course and for helping the students conceptualize the material. The second audience who will benefit from this book is law students, both those who want a clearer sense of the big picture in estates and trusts law and those who are interested more generally in law and society. I may add the book as recommended reading in my introductory Estates course; my Fall students can stay tuned.