Author: Sarah Waldeck

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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.


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Conference Announcement and Call for Papers

Professor Mike Zimmer, one of our former Co-Op guests, asked me to pass along information about A Constitutional Law Colloquium: “How Democratic is the Constitution?” For those who are interested, here are the details:

Loyola University Chicago School of Law is organizing A Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. This year’s theme will be “How Democratic is the Constitution?” The event will begin on Friday morning, November 5 and end midday on Saturday, November 6, 2010.

Conference Organizers:

Professor Alexander Tsesis, atsesis@luc.edu, 312.915.7929
Professor Michael Zimmer, mzimme4@luc.edu, 312.915.7919

Loyola invites abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates under the broad rubric of this topic. 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.

This is the first annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. We hope to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas and invaluable opportunities for informed critiques. Presentations will be grouped by subject matter.

The submission deadline for abstracts is May 31, 2010.
Topics, abstracts, papers, questions, and comments should be submitted to:

Program Administrator Carrie Bird, clbird30@gmail.com

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.

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“Hang Up So I Can Write You A Ticket”

Last week U.S. Transportation Secretary Roy Lahood announced a new program in which states, beginning with Connecticut and New York, will receive federal grants to help enforce laws against driving while using a hand-held cell phone.  The campaign, called “Phone in one hand. Ticket in the other,” includes public service announcements, warnings on highway signs, and an increased likelihood that drivers using hand-held cell phones will be pulled over by the police who spot them.  LaHood said that the program is aimed at getting the kind of compliance states see for seat belt laws, with about 85 percent of drivers regularly buckling up.

The analogy to seat belts is a good one, as I have already written on Co-Op.  This new program seeks to make using a cell phone while driving similar to smoking or driving drunk—that is, behavior that was once socially acceptable but no longer is.  The rub, however, is captured in a comment by Representative Richard Roy, the chief proponent of Connecticut’s ban on hand-held cell phones while driving.  In an interview with the Connecticut Post, Representative Roy explained, “I think the law is working fairly well.  Far more people are using hands-free devices than used to, but there are still far too many people just chatting along, holding the phone to their face.” 

Ample research has demonstrated that driving while talking on a hands-free device is also unsafe.  (You can read about some of the research by following the link in the prior paragraph.)  If Representative Roy’s take on what has happened in Connecticut is correct, the ban on hand-held cell phones has pushed people to substitute one dangerous behavior for another.   

State legislatures and the federal government need to calibrate their message to make clear that talking on the phone while driving is dangerous, period.  I recognize that a ban on hands-free devices poses enormous enforcement problems, because how do the police detect who is talking on a hands-free device and who is not?  Still, at a minimum, why not change the name of this program to something that suggests talking on the phone is the problem, not merely holding the phone?  Or, to ratchet it up several degrees, shouldn’t we at least be discussing whether car manufacturers should be allowed to sell vehicles with built-in hands-free devices?

Right now the takeaway is that a person can feel good about switching to a hands-free device.  This conclusion is absolutely belied by the evidence.

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Introducing Guest Blogger Marc Poirier

I’m happy to introduce Professor Marc Poirier, who will be guest blogging during the month of April.   Marc teaches at Seton Hall and writes in the areas of property theory, environmental and natural resources management, cultural property, and law, gender, and sexuality.  Some of his recent works include:

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 Columbia J. Gender & L. 343 (2008); and

A Very Clear Blue Line: Behavioral Economics, Public Choice, Public Art and Sea Level Rise, 16 Southeastern Env’tl L.J. 83 (2008).

Welcome Marc!

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Student Voices On Guantanamo

I want to encourage Concurring Opinions readers to listen to today’s edition of NPR’s The Story, which features an interview with two law students who are investigating alleged detainee suicides at Guantanamo.   Their story is a remarkable example of what can be accomplished by scrutinizing government documents, identifying inconsistencies, and asking smart questions.      

You can hear the audiofile here:  http://thestory.org/archive/the_story_973_Gitmo_Documents_.mp3/view

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Who Should (And Shouldn’t) Go to Law School

Yesterday’s New York Times article about the depreciating value of a law degree is presently number one on the Times’ “most emailed” list.  My fervent hope is that the article is being forwarded not just to lawyers, but also to individuals who are considering whether to join a 1L class in 2010.

Because I am visiting at another law school this semester, I don’t have to attend any admissions events this spring.  Yet I’ve been thinking hard about what advice I would give prospective students and this is where I’ve landed:  Only go to law school next year if (1) you have always dreamed of being a lawyer; or (2) you are accepted by a very prestigious institution; or (3) you are offered a full scholarship.

This is not advice I’ve arrived at easily.  Fifteen years ago, such advice likely would have discouraged me from even considering law school.   But the economics of my decision are likely very different from the economics of the decisions that will be made this spring.  I went to a state university and graduated without a penny of debt.  Partly this was because I worked for three years after college and managed to save money, but mostly it was because my in-state tuition averaged about $5,000 per year.   Today, in-state tuition at the same institution would cost more than $16,000 per year.  If I went to a private school in the metropolitan area where I usually teach, I’d be looking at a yearly tuition of about $45,000.  Read More

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Introducing Mark Edwards

Edwards-MarkMark A. Edwards will be joining us for a repeat visit during the month of December.  Mark is an Associate Professor at William Mitchell College of Law who has taught Property I, Property II, Comparative Property Rights, Natural Resources, and Constitutional Criminal Procedure.  He was voted Faculty Member of the Year by the student body for 2007-2008.

His publications include Nationalization, De-Nationalization, Re-Nationalization: Some Historical and Comparative Perspective, forthcoming, Pace Law Review;  Law and the Parameters of Acceptable Deviance, 97 J. of Crim. Law & Criminology 49 (2006) ; and The Path of the Law Ands, 1997 Wisc. Law R. 375 (1997) (with Marc Galanter).  He is currently writing on the divergence between the legality and social acceptability of behavior with regard to property rights.

Welcome back, Mark! 

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Email: Fear mongerer or neighborhood policing’s best friend?

644109_38731687Last week I received at least twenty different emails forwarding the same story about a house in my town that was almost burglarized.  A man with a rake who appeared to be looking for work knocked on a front door and realized it was open.  He went to the sidewalk and consulted with his friends.  The owner, who was in the house, locked the door.  After the men returned to the front door and found it locked, they tried to open a back door and then a basement window.  The owner called 911 and the police caught one of the men.  Not exactly high drama, but plenty scary for the owner inside the house.

Each email contained the same information: soliciting is illegal and police want residents to report all solicitors because these individuals might be casing houses.

Almost every email also contained either a subtle or not-so-subtle ratcheting up of the fear.  Some emails lamented that our blocks weren’t safe.  Others warned that criminals need money for the holidays.  One advised that we consider this story as our children start to get older and move around the town without parents.  Another suggested that we watch the movie “Taken” because it would make us rethink letting students travel to Europe.

The upside is that I now know that soliciting is illegal and that the police want me to report it.  I’m also being more careful about locking my doors, a good habit in any event. 

But here’s the downside to this email flurry.   I am discomforted as I move about my town and house in a way that I have never been before.  This is true even though I know about the availability heuristic, i.e., the tendency to think events are more probable if we can recall such an event occurring.  I also know how bad humans are at processing information about low-risk occurrences.   Email  only exacerbates this faulty reasoning.  The Rakeman story is significantly more available to me than it would have been had I heard about it once or twice through old-fashioned word-of-mouth.

Many would argue that discomfort is good.  They are probably right, to a point.  But here is what I would have said if I had allowed myself to respond to all those emails:  Lock your doors.  Be smart.  And relax, because you are a lot safer than you think you are.

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Introducing Michael Zimmer

zimmerI’m so pleased to welcome Michael Zimmer as a Concurring Opinions guest for the month of November.   Mike is a widely recognized scholar in the areas of employment discrimination law, labor and employment law and constitutional law.  He is also co-author of one of the first and still the leading employment discrimination casebooks as well as co-author of the first casebook on international and comparative employment law.

Mike is a professor of law at Loyola University Chicago.  He received his A.B. and J.D. from Marquette University, where he was Editor in Chief of the Marquette Law Review.  He also holds an LL.M from Columbia University, where he was named a James Kent Fellow. Following law school, he clerked for the Honorable Thomas E. Fairchild of the United States Court of Appeals for the Seventh Circuit and then served as an associate at Foley & Lardner in Milwaukee.

He began his law school teaching career at the University of South Carolina and he has taught at a number of law schools, most recently as a visiting professor of law at Northwestern University. He joined the Seton Hall University School of Law in 1978, served as Associate Dean from 1990 to 1994 and was on the faculty until 2008.

Welcome, Mike!

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Throwback to 2007

On the heels of posts about television legal dramas by Jonathan Siegel and Jon Ip, consider The Good Wife, now airing on CBS.  (I haven’t yet watched this week’s episode, so no spoilers here.)  The show is mostly about a wife dealing with the very public revelation that her elected-official husband frequented prostitutes.  This storyline is good and the reason I’m still watching.  But Alicia is an associate at a Chicago law firm and quite a bit of the show takes place there.

I’d been trying to figure out why The Good Wife feels so dated, even though Alicia’s family is a victim of the 24-hour news cycle and her kids are extremely wired.  Then it hit me—the law firm is way too pre-2008.  The associates are given a stern lecture about needing to increase billable hours.  Where’s the angst about the viability of billable hours and the future of the law firm business model?  Moreover, doesn’t the lecture mean that the firm has excess work and is just lacking someone who will step up and do it?  There’s a passing reference to the firm hiring more associates than it will need over the long term, but where are the rescinded offers and the cancelled summer program?   The writers need to start reading Above the Law and borrowing liberally.

Granted, television rarely provides a realistic look at how law firms really work.  (See Ally McBeal.)  I do hope, however, that The Good Wife doesn’t inspire too many would-be law students.  These attorneys are way, way too comfortable.