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Probate Standing
Get PDFFew topics in civil justice have sparked as much criticism as the standing doctrine. The U.S. Constitution and some of its state counterparts require plaintiffs to allege that they suffered an “injury-in-fact” that the defendant caused and that a court can redress. A veritable ocean of commentary argues that this requirement [is confusing, ahistorical, and unmoored from its objectives.
Yet a different manifestation of the standing doctrine has long lurked in obscurity. Standing issues are also common in state probate courts, where the transmission of assets from the dead to the living can affect a variety of parties. But in sharp contrast to the vast literature on standing in general civil litigation, probate standing has never received sustained scholarly attention.
This Article explores this unique nexus of civil procedure and decedents’ estates. First, it demonstrates that probate standing principles have long been a tangled mess. For hundreds of years, probate judges have tried to control their dockets by limiting the right to file petitions and objections to people who are “interested” in the outcome. However, “interest” is a slippery concept in a field where rights are often contingent. Indeed, the impact of an inheritance dispute can hinge on unknown variables, like future births, deaths, the validity of estate planning documents, or the result of other litigation. Thus, courts reach wildly different conclusions about basic probate standing matters. Second, the Article argues that the costs of the standing mandate outweigh the benefits. For starters, the leading rationales for the standing doctrine—ensuring that claimants litigate zealously and preventing courts from ruling on issues that are better addressed by elected officials—do not apply to a system that is often inquisitorial and features questions about private rights, not social policy. Even worse, the standing mandate closes the probate courthouse door to assertions of grave misconduct. Thus, the Article concludes that probate judges should presumptively grant standing to anyone who might gain something from their claim. Third, the Article uses this insight to propose solutions to festering standing puzzles in will contests, creditor’s claims, lawsuits for elder abuse, fiduciary litigation, and other forms of estate-related conflict
Beyond the Stacks: The Modern Evolution of Law Libraries
Get PDFThere is a certain timelessness to the sensory experience of the Reading Room: the scratching and shuffling of paperwork, the muffled thump of a closing book, the dull hum of fans in the warmer months. But in recent years, something decidedly more modern has joined in the chorus: the quiet staccato of laptop keyboards.
The emergence of computers and the internet has reshaped nearly every aspect of how libraries operate. At the same time, trends in legal education and the profession have led to changes in collections management, research-based curriculum, scholarship, the student experience, and other aspects of how law libraries support their institutions and the public more broadly.
In the following pages, Law Quadrangle speaks with three directors of Michigan Law’s library—representing more than eight decades of cumulative service to the Law School and its faculty and students— as well as alumni who have served in leadership roles at the law libraries at Boston University and the University of Notre Dame, to discuss these trends; their impact on students, faculty, and society; and the enduring value of law libraries
Confronting Algorithms: Conscience Catching in the Criminal Trial and Beyond
Get PDFUsing the question of how to treat algorithmic evidence under the Confrontation Clause as an entry point, I argue that the use of AI in ethically salient situations presents a risk. It may cause us to avoid confronting our own responsibility. This matters because facing up to what we do, including what we delegate, can help us grow and thrive. Bearing responsibility can help us nurture vital capacities, including forms of empathy, honesty, and dignity. In the language of ethics, these are eudaimonist virtues—traits and capacities that can help us live well and fully. We should thus find ways of ensuring that we bear the ethical weight of what we do. I call such methods conscience catchers. These are practices that, in addition to the pragmatic work they do, also serve to affix a sense of felt responsibility. In the context of the criminal trial, the Confrontation Clause is an example. But there are many ethically salient circumstances beyond the trial in which it will increasingly make sense to rely on the help of AI. Some, such as investment decisions and marketing, although perhaps less dramatic than criminal trials, involve many more people. We should thus look for conscience catching devices in those contexts also. Having identified and argued for the significance of the risk that reliance on AI may lead us to avoid confronting responsibility, I wish I could describe precisely how to guard against that risk. I cannot. The problem has not been sufficiently recognized or studied. I can, with examples from areas I have studied and inspiration from literature, describe some sorts of methods that might serve a conscience catching function. But beyond that I call upon lawyers, policy makers, and social scientists to help us find ways to catch our conscience in the many situations in which we can and ought to carry the weight of what do, including what we delegate to our algorithms
Are Race-Based Environmental Justice Policies Safe?
Get PDFIn recent years, we have seen a signiicant volume of federal and state environmental justice policy with attorneys general developing enforcement plans focused on environmental justice. Environmental and conservation agencies have adopted limited English proiciency (LEP) plans to ensure that LEP individuals are not let out of decision-making processes. And, in some states, there are environmental justice laws on the books that impact public hearings, siting, and permitting. Many of these recent policies require the government to consider race directly or indirectly when making decisions. In light of recent jurisprudence on the legality of race-conscious state action—particularly the U.S. Supreme Court’s most recent opinion striking down race-conscious university admissions policies—are these environmental justice policies safe? Can we remedy decades of environmental racism without accounting for race? he tried-and-true lawyer’s answer is: It depends
Liability for Use of Artificial Intelligence in Medicine
Get PDFWhile artificial intelligence (AI) has substantial potential to improve medical practice, errors will certainly occur, sometimes resulting in injury. Who will be liable? Questions of liability for AI-related injury raise not only immediate concerns for potentially liable parties but also broader systemic questions about how AI will be developed and adopted. The landscape of liability is complex, involving healthcare providers and institutions and the developers of AI systems. In this chapter, we consider these three principal loci of liability. At the outset, we note a few issues that shape our analysis
Introduction to the Symposium
Get PDFThis symposium explores the interrelation and juxtaposition of private and public registers in the logics and practices of private international law, public international law, and foreign relations law. It is inspired by the scholarly work of a brilliant scholar and much-missed friend: Karen Knop, Professor and Cecil A. Wright Chair at the University of Toronto Faculty of Law (1960–2022)
Formalizing Fairness: Statistical Measures of Parity for Recidivism Prediction Instruments
Get PDFRecidivism prediction instruments (RPI) are increasingly employed as an algorithmic arm of the criminal justice system to assist in bond, sentencing, and probation determinations. Due process and ethics guidelines require that RPIs, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS), apply a fair assessment in making recidivism predictions. To establish fair RPIs, we must first define standards of fairness and methods to measure bias in RPI outputs. However, defining algorithmic fairness can be cryptic and context-dependent. Scholars have proposed different criteria for what defines a fair RPI. Unfortunately, these criteria are conflicting and mutually exclusive; it is mathematically impossible for a system to satisfy all of them simultaneously. Thus, to ensure fairness in RPIs, we need to separate the wheat from the chaff and identify the most suitable fairness criterion based on philosophical, normative, and practical considerations.
In this article, I propose that false positive parity is the best statistical measure of parity for use in assessing the fairness of RPIs. I reach this conclusion by examining the three-pronged debate over the appropriate measure for assessing bias in COMPAS and evaluating the validity and justifications of the arguments.
I attempt to answer the following two important questions. (1) What are the most essential factors for substantiating fairness in the criminal justice system and are thus necessary conditions in any algorithmic bias measurement? (2) Which statistical measure of parity best meets these necessary conditions in assessing fairness in RPIs? Furthermore, I aim to present these statistical concepts and their practical meaning in a manner which is easily digestible without a statistics background
Trademarks on the Blockchain: NFT Domains and Collisions
Get PDFBlockchain technology supporting cryptocurrency transactions is one of the most critical innovations of this decade. Establishing a legal identity on blockchain, however, is fraught with uncertainty. In the 1990s, the internet faced a similar set of issues, which were resolved through the ICANN dispute resolution system. This Article asserts that blockchain technology urgently needs a similar cohesive approach to NFT domains.
This Article will explore trademark issues with non-fungible tokens (NFTs), specifically NFT domains. It begins by exploring the fundamental structure of NFTs by demystifying the technology and showing how NFTs contrast with other currency regimes. Increased usage of NFTs has created novel intellectual property law issues. This Article then examines the history of unauthorized registration and use of domains identical or similar to trademarks, known as cybersquatting. Understanding the historical evolution of the internet domain name system is a crucial step in comprehending the risks associated with NFT domains disputes.
Traditional internet domain names are ultimately managed and overseen by a centralized authority, ICANN, which is a private nonprofit organization that sets the policy for the global Domain Name System. Unlike internet domain names, where ICANN developed a Uniform Dispute Resolution Policy and collision occurrence management framework, NFT domains have the potential to create domain collisions, both between extensions on the blockchain and with conventional domain name extensions. As the blockchain ecosystem continues to grow, its unregulated nature may increase the number of disputes and stoke mistrust in the system. This Article will compare two principal naming standards, centralized and decentralized. Despite the challenges of coordination in the decentralized world of blockchain, I argue that in the absence of law regulations, an effective system of governance is possible through self-regulatory organizations. Given the specific characteristics of the blockchain environment, I propose to establish a specialized blockchain entity, a Decentralized Autonomous Organization (DAO), that would deal with the governance of NFT domains and disputes relating to their collisions and those arising from their intersection with trademarks
Sidewalk Government
Get PDFThis Article is about one of the most used, least studied spaces in the country: the sidewalk.
It is easy to think of sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of underappreciated conflict. The centrality of sidewalks in our day-to-day lives is rooted in the fact that they are open to everyone and to all of these varied uses, every hour of every day, but it is that very vibrancy that risks being their undoing. As competing claims on sidewalks increase in both number and intensity due to cultural shifts, technological advances, climate change, and more, the sidewalks we take for granted may crumble—both literally and figuratively—under the weight of contradictory and self-defeating governing principles and uncoordinated governmental oversight.
This Article is the first to systematically examine the incoherence of the property law of sidewalks and of the fragmented regulatory architecture that municipalities have built to manage them. Drawing on insights from both property and local government law, as well as first-person interviews with current and former municipal officials, it demonstrates how both legal regimes have in fact deepened sidewalk conflict and have confused and undermined accountability for the quality and accessibility of sidewalks. With these shortcomings in mind, this Article charts a new course and constructs from the ground up a new municipal agency to administer the sidewalks—one that would be better positioned to protect and foster the utility and vitality of these critical social, economic, and political spaces
On Behalf of All Others Similarly Situated: Class Representation & Equitable Compensation
Get PDFClass actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but “on behalf of all others similarly situated.” For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary “incentive awards” are generally intended to compensate class representatives for shouldering certain costs and risks—which are not borne by absent class members—during the pendency of class litigation.
The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh Circuit held that incentive awards are per se unlawful under late nineteenth-century Supreme Court precedent. This holding has ignited a new controversy in the federal courts with far-reaching implications for the future of class actions.
Much of the existing legal scholarship on incentive awards analyzes policy rationales, quantitative trends, and legal standards involving the questions of “When?” and “How much?” to compensate class representatives. Only recently have scholars turned their attention to the more foundational question of whether federal courts have a sound basis to allocate incentive awards to class representatives under any circumstances. This Note weighs in on that debate by revisiting the Eleventh Circuit’s recent decision to categorically ban incentive awards.
More importantly, this Note looks to the future and confronts the reality that other federal circuit courts or the Supreme Court could eventually adopt the Eleventh Circuit’s position on incentive awards. Facing that unsettling prospect, this Note presents three proposals—one for policymakers and two for plaintiff-side class action practitioners—that could save the equitable tradition of compensating class representatives and reinforce the viability of the class action device itself