Author: Naomi Cahn

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Sofia Vergara, Frozen Embryos – and Trust Law?

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The newest twist in the long-running dispute between Sofia Vergara and her former fiancé, Nick Loeb ,over their frozen embryos is not actually between Vergara and Loeb.   Instead, out of the blue, James Charbonnet, claiming to be the trustee of the frozen embryos, has sued Vergara in Louisiana.

Many couples have gone to court to fight about their frozen embryos. But, in addition to the fact that this case involves Vergara, there are a lot of strange things about this lawsuit. I’ll unpack just a few.

First, who cares about these embryos? Last year, Loeb sued Vergara in California, trying to make sure that the embryos they had created would not be destroyed. Vergara’s lawyers recently asked Loeb for the names of two former girlfriends who may have had abortions during his relationships with them; rather than provide the information, Loeb is dropping that particular lawsuit. The status of the embyros is unclear, as Vergara has said that she doesn’t want to get rid of the embryos, but she doesn’t want him to use them.

Second, why Louisiana? The embryos are in California, and so is Vergara; Loeb is in New York. So here’s why Louisiana is the chosen forum: Louisiana is the only state that accords status to an embryo as a “juridical person,” LSA-R.S. 9:123, so not only does it have legal status, it can be represented by an attorney.  In fact, a court can appoint a “curator,” a guardian, to protect the embryo’s rights. LSA-R.S. 9:126. And, indeed, the complaint requests that the court appoint Loeb as the “curator” for the embryos.

Third, what’s this about a trust?

The lawsuit complaint explains that the trust was created in Louisiana to provide for the health, education, maintenance, and support of its beneficiaries (complaint, Para. 78).  Nothing unusual about this standard — it is a common one in trusts.

But — the complaint also alleges that the trust was created in Louisiana to benefit the two female embryos (named “Emma” and “Isabella” in the lawsuit). And it claims the two embryos are “scheduled” to be the only beneficiaries of the trust. [Paras. 73-75]   This raises the issue of whether such a trust, set up only to benefit in vitro embryos, is valid. Anyone can create a trust and, in many states, a trust doesn’t even need to be in writing. But when someone (the settlor) creates a trust, black letter law requires that there must be a beneficiary. Even if the beneficiary is not “ascertainable’ when the trust is created, the beneficiary must come into existence within a specific time period.   Restatement (Third) of Trusts § 44 (2003). The complaint states that the two embryos “must be born alive in order to receive the inheritance due from the Trust.” (Para. 79) But we don’t know much else about the terms of the trust; unlike wills (or legal complaints), trusts are private documents that do not need to be filed in court.

And finally, what does the lawsuit seek? It requests that the court order that Vergara consent to let the embryos develop and be born.

I don’t know what the Louisiana court will do, although the suit seems far-fetched. I have taught trusts and estates for many years, I have co-authored one trusts and estates casebook and I’m in the midst of co-authoring a second. While I have seen plenty of lawsuits in which beneficiaries sue trustees, I have never seen a lawsuit in which a trustee sues to make sure that the beneficiaries are born (nor to appoint a “curator”). Because the embryos aren’t in Louisiana, nor have they ever been stored there, it doesn’t seem as though a Louisiana court would have any control over them. If they were living children, the Louisiana court would not have any authority over them because Louisiana is not their “home state”.

In speculating what this case is about, it is hard to ignore that one of the attorneys who filed the suit is a Senior Fellow in Legal Policy at the Charlotte Lozier Institute.  According to the Institute’s website, “We desire and seek that the benefits of modern medicine and the wealth of nations be put to the service of human life and that the scourges of abortion, physical disease, euthanasia and human exploitation will be diminished and ultimately overcome.”

So this functions as yet another publicity stunt to try to further an anti-abortion agenda. And it is a stark reminder of ongoing battles over a woman’s choice.

 

 

 

 

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Introducing Guest Blogger — June Carbone

  It is my pleasure to introduce Professor June Carbone, who will be blogging with us this month.  June joined the University of Minnesota Law School faculty in June 2013 as the inaugural holder of the Robina Chair in Law, Science and Technology. Before her current position at Minnesota, she was the Edward A. Smith/Missouri Chair of Law, the Constitution and Society at the University of Missouri at Kansas City (UMKC).  And prior to that, she  was  a professor at Santa Clara University (SCU) School of Law, where  she served as associate dean for faculty development from 2000-2006 and from 2001-03 as the Presidential Professor of Ethics and the Common Good. She is an expert in numerous areas of the law, ranging from family law to property to bioethics, and she also has taught contracts, remedies, financial institutions, civil procedure, and feminist jurisprudence.

In addition to countless law review articles, June is the co-author of a leading family law casebook, the author of the ground-breaking From Partners to Parents,  and, with yours truly, the co-author of Red Families v. Blue Families and Marriage Markets. Brian Leiter recently listed her as the 6th most frequently cited family law scholar from 2010-2014.

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Law and the Modern Mind Book Symposium

 

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Concurring Opinions is delighted to introduce Professor Susanna  Blumenthal, and the participants in our online symposium on Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard University Press, 2016).

In the book, Susanna explores how American jurisprudence has been shaped by differing conceptions of rationality,consciousness, agency, and accountability.  Focusing on the period dating from America’s founding through the end of the nineteenth century, the book shows how the developing conception of what she terms the “default legal person” (p. 7), modeled after cultural notions of the “free and independent man,” (id.) was both at the core of  the early Americans’ legal philosophy and simultaneously a threat to the founders’ vision of ordered liberty. Because they viewed self-government as both a psychological and political enterprise, jurists built a republic of laws upon the Enlightenment science of the mind with the aim of producing a responsible citizenry.

Focusing on everyday private law adjudication, such as will contests and intrafamilial contracts, Susanna shows how judges struggled to reconcile common sense notions of rationality with novel scientific concepts that suggested deviant behavior might result from disease rather than conscious choice. Questions of capacity, for example, were particularly salient as lawsuits raised questions about “unnatural dispositions” (the title of one of her chapters).  She explores the connections between changing scientific views of insanity and the jurisprudence of culpability.

Law and the Modern Mind is extremely thought-provoking as it calls attention to the problematic relationship between consciousness and liability in American jurisprudence, to the difficulties reconciling medical knowledge of the mind with legal culpability.

To consider these and many other issues raised by Blumenthal’s book, we have invited an all-star – and multidisciplinary — cast of thinkers: Anne Dailey, Concurring Opinion’s own Gerard Magliocca, Michele McKinley, Nomi Stolzenberg, Martha Umphrey, and Steven Wilf.

We look forward to this discussion, and please join in with comments!  Susanna will also be responding to the commentary.

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Guest Blogger – Verna Williams

Verna Williams, Law professor

Verna Williams

I am delighted to introduce Professor Verna Williams as a guest blogger for the month of August.  Professor Williams joined the University of Cincinnati College of Law in 2001 after  many years of practice in the areas of civil and women’s rights.  She co-directs the University’s joint-degree program in Law and Women’s Studies and the Center for Race, Gender, and Social Justice.  Professor Williams teaches in the areas of  critical race theory, family law, gender discrimination, and constitutional law. In 2004 and 2011, she received the Goldman Prize for Teaching Excellence.

Prior to joining the faculty, Professor Williams practiced law in the private and public sectors. She was Vice President and Director of Educational Opportunities at the National Women’s Law Center, where she focused on issues of gender equity in education. During her time at the Center, Professor Williams was lead counsel and successfully argued before the United States Supreme Court Davis v. Monroe County Board of Education, which established that educational institutions have a duty to respond to and address complaints of student-to-student sexual harassment. She also practiced at the Department of Justice and at Sidley Austin LLP. Professor Williams began her legal career clerking for the Honorable David S. Nelson, U.S. District Judge for the District of Massachusetts.

Her forthcoming publications include

  • The Patriarchy Prescription: Cure or Containment Strategy? forthcoming, ___ Georgetown J. of Modern Critical Race Perspectives (2016)
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Nine to Five Book Symposium

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Concurring Opinions is delighted to introduce Professor Joanna Grossman, and the participants in our online symposium on Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press 2016).

  Grossman’s important book is an accessible, witty, and opinionated guide to the jurisprudence of sex discrimination that explores laws and policies regulating sex, sexuality, and gender identity in the American workplace. By bringing together almost 60 columns that Grossman has written over the past 15 years for online sites, the book documents the law’s approach to various issues of sex discrimination, including, sexual harassment, pregnancy discrimination, and pay equity. Although each essay was written to address a specific case or legal development (sometimes court cases provide the basis for the column, while other columns start with cultural developments, such as David Letterman’s acknowledgement of his intra-office sexual relationships – “Late–Night Affairs with David Letterman”), Grossman has organized the essays around 4 distinct themes, and has provided introductory and connecting analyses, so the book provides a coherent and cogent approach to sex discrimination. In fact, I am considering assigning it to my feminist legal theory students next semester!   The essays crisply note both the victories and defeats along the road to gender equality. Through the cumulative volume of these columns, we – somewhat painfully — see the obstacles to working women’s equality.

As Nine to Five explores numerous provocative and timely issues about the meaning of gender equality, it also raises questions about the role of law in achieving gender equality. Are Title VII and Title IX and the Equal Protection Clause and the Pregnancy Discrimination Act adequate to challenge pervasive gender role stereotypes? While these laws may have succeeded in opening doors to women in the workplace, can they help women deal with sexual harassment (Part II of the book) and pregnancy discrimination and the maternal wall (Part III) and pay equity and the glass ceiling (Part IV)? To consider these and many other issues raised by Grossman’s book, we have invited an all-star cast of thinkers:  Sam Bagenstos, June Carbone, Nancy Dowd, Jennifer Hendricks, Kate Silbaugh, Gillian Thomas, and Verna Williams.

We look forward to this discussion, and please join in with comments!

 

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The Rights of Donor-Conceived Offspring

Today’s Washington Post prints an interesting article on regulation and the fertility industry.   One issue that it addresses is the rights of donor-conceived offspring to learn the identity of their egg and sperm donors. As I’ve written in numerous articles and books, it is a fundamentally important right for all donor-conceived offspring to learn the identity of their donors (the strength of my advocacy on this issue may not be clear from the Post article).

Other academics disagree with this position, believing it important to protect the identity of gamete donors for a variety of reasons.  I disagree, and I think the  law has a critical role to play in ensuring respect for the rights of donor-conceived people.   Parents can make the legal choice never to find out the identity of their donor.  By contrast, donor-conceived offspring have no such legal right in the United States: unless their parents opted into a known donor program, they are unable to learn the identity of their donors.  While their parents’ choices affect them as children, donor-conceived children grow up, and many become curious about their origins. Yet the law’s tight focus on the parent-child relationship excludes legal questions relating to donor-conceived adults.

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Author diversity in legal scholarship

I spent much of Friday at the University of Maryland Law School’s roundtable on Increasing Author Diversity in Legal Scholarship: Individual and Institutional Strategies organized by Prof. Paula Monopoli and the Maryland Law Review.  As might be expected, the roundtable included a diversity of diverse voices, including students as well as faculty.  Participants focused on how faculty members and law journal boards can help increase the chance that an article written by women or people of color will be accepted and how journal leadership can adopt an agenda that results in a more diverse set of authors in its publication.  There were lots of concrete suggestions throughout the day.

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Pregnancy as Disability

When I teach family law, I briefly discuss the Pregnancy Discrimination Act. The basic hypothetical that I use is: Ace Employer makes no accommodations for any disabilities (other than what is required under the Americans with Disabilities Act). Betty Employee, a truck driver who has to lift heavy packages, becomes pregnant and requests an accommodation. Must Ace make an exception to its “no accommodation” policy? In Young v. UPS, the Supreme Court responded to a variation of that basic hypothetical. What happens to Betty (AKA Peggy Young) when Ace Employer (AKA UPS) accommodates some, but not all, “disabilities”? Read more from June Carbone and me here.

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Facebook’s new Legacy Contact Option

I’ve now signed up for a Legacy Contact through Facebook, and I’ve designated trusted contacts to have access to my Google accounts through Google’s Inactive Account Manager when I no longer have access.  I think about these issues a lot: for the past few years, I’ve been working with the Uniform Law Commission on making it easier for fiduciaries to access the digital assets of the account holders for whom they are fiduciaries, and for account holders to plan on what will happen to their digital assets when they die.  Delaware has already enacted the legislation, and various states are considering it.  A few other states have non-comprehensive legislation.  So, in the absence of state laws – or even with state laws –  the problem is how to plan for your online life when you can no longer manage it.  Today, Facebook joined Google in prompting people to start making plans.  The options on Facebook are still somewhat limited — your Contact doesn’t have complete control over your page, and may not be able to delete it — but this is   a really positive development.

Setting up a Contact is quite easy from the Facebook Settings page, and more instructions are here.  I’ve also written quite a lot about this issue (as have many others!).

 

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BOOK REVIEW: Linder & Levit, The Good Lawyer: Seeking Quality in the Practice of Law

happylawyer-levitReview of The Good Lawyer: Seeking Quality in the Practice of Law by Douglas O. Linder & Nancy Levit (Oxford University Press 2014)

Linder and Levit have – yet again – confronted some of the most challenging questions faced by lawyers who seek to find satisfaction in our careers. The Good Lawyer: Seeking Quality in the Practice of Law builds on the authors’ first book, The Happy Lawyer: Making a Good Life in the Law. One of the central questions posed in the first book—how do you become a happy lawyer—seems to be answered in part by the second book. Linder and Levit draw on numerous different disciplines that show a strong link between doing good work and being happy, between personal lives and professional roles.

The Good Lawyer emphasizes a set of qualities, skills, and attitudes shared by people the authors identify as “good lawyers.” As they note, lawyers who practice in different fields – intellectual property, securities fraud, employment discrimination – may need to develop distinct, and particularized, skills, but, regardless of their practice area, lawyers are proudest of themselves when they do meaningful work for clients about whom they care. Consequently, all lawyers, whether they work for private firms, the government, or in a public interest setting or as solo practitioners, can appreciate and use the particular attributes that Linder and Levit identify. Those attributes are addressed in nine of the book’s ten chapters, and they range from empathy to moral courage, cognitive skills, willpower, civility, honesty, and open-mindedness. As they explore the good lawyers’ attributes, the authors draw on behavioral economics, Tonglen Buddhism, cognitive psychology, and the law to support and explain their points.

While the book has some endnotes (under 30 pages, actually), it also has humor and even a checklist, although the checklist is primarily enumerated suggestions rather than a protocol. And it has lots of stories, which make the book even more of a joy to read. The stories provide context and drama. Linder and Levit visit courageous lawyers in the Jim Crow South, explore the psychodrama exercises Gerry Spence offers to trial lawyers at Thunderhead Ranch in Wyoming, introduce Lex Machina, a Stanford project to create a database that helps lawyers predict winning strategies, and probe the expert testimony in the trial of Sam Sheppard.

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