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Conditional Purging of Wills
Get PDFThe laws of most states unconditionally purge a testamentary gift to an individual who serves as an attesting witness to the will. Under this approach, the will is valid despite the presence of an interested witness, but the witness forfeits all, some, or none of her gift, depending on the particularities of state law. While the outcome of the interested witness’s gift varies amongst the states that adhere to this majority approach, the determination of what the interested witnesses can retain is the same. The only consideration is whether the beneficiary is also a witness; whether her gift is purged is conditioned on nothing else.
This Article illuminates a substantial, yet largely overlooked, minority approach to the purging of wills–an approach that, contrary to the majority approach, conditions a testamentary gift on considerations other than simply whether the beneficiary served as an attesting witness. This conditional approach to purging is of three types. First, some states condition an interested witness’s gift on considerations related to the testator’s subjective intent. Second, other states condition the purging of testamentary gifts on procedural considerations regarding how the testator executed the will or how the will was proven at probate. Finally, one state conditions gifts to an interested witness on considerations concerning the substance of the gift.
While generally ignored by legal scholars, conditional purging of wills has steadily grown in favor among policymakers, with ten states now following this approach, including California and Texas. Given state legislators’ increasing appetite for conditional purging, a critical analysis of this minority approach is needed now, more than ever, to ensure that conditional purging statutes are founded upon sound policy considerations. To meet this need, this Article analyzes conditional purging statutes in light of the law of will’s overarching goal of accurately and efficiently carrying out the testator’s intended estate plan.
Ultimately, this Article argues that this minority trend is largely misguided because existing conditional purging statutes (1) do not protect the testator from wrongdoing aimed at undermining her intent, (2) make the probate court’s task of administering the decedent’s estate less efficient, and (3) have proven difficult for policymakers to clearly draft and for probate courts to predictably implement. State policymakers should therefore either adhere to the majority approach or more carefully tailor conditional purging statutes to further the policy goals of the law of wills
Zombies Attack Inadvertent Partnerships!—How Undead Precedents Killed By Uniform Statutes Still Roam the Reporters
Get PDFRecently, the Texas Supreme Court breathed new life into some ancient zombies—zombie precedents, that is!—which have long lurked in the shadows of the nation’s partnership formation caselaw. This Article tells the story of those undead cases—describing them, debunking them, and plotting their demise.
This zombie tale begins with the supposed black-letter law of partnership formation. In nearly every state, formation of a general partnership is governed by one of two uniform partnership acts. Under both acts, a business relationship ripens into a partnership whenever the statutory definition of partnership is satisfied. The parties’ intent to become “partners” (or not) is always, either explicitly or implicitly, one of the required elements of this definition. However, a storied line of cases holds—and the more recent uniform partnership act explicitly states—that the parties’ subjective intent to be partners (or not) is not dispositive as to formation. Therefore, law students learn as “settled law” that two parties cannot avoid formation of a partnership simply by signing a contract not to be partners. If the two parties’ business relationship satisfies the elements of partnership as a factual matter, the supposed “black-letter law” dictates that the two parties have formed an inadvertent partnership, even if they previously agreed not to become partners.
Thing is, the caselaw was never really settled. In fact, an even more ancient—but far less famous—line of cases holds that the parties’ intent not to form a partnership is dispositive as between themselves. Further, from time to time courts have mistakenly given effect to parties’ agreements not to be partners without even considering the applicable partnership statute. Both types of cases appear in some modern treatises but have largely escaped scholarly attention because they are directly at odds with the uniform statutes.
This Article finally brings the obscure, subjective-intent line of cases out of the shadows and gives them a close review. After briefly describing the ancient line of cases and the uniform partnershipacts, this Article concludes that the latter were enacted (in part) to eliminate the former. Yet, modern courts unwittingly continue to cite the old subjective intent cases, as well as the cases that simply ignore partnership law—occasionally allowing parties to contract around partnership as a matter of law. Hence, the subjective-intent cases are zombies—killed by the uniform acts, but still wandering the treatises, upending partnership law.
Two years ago, the Texas Supreme Court faced a case that pitted the two lines of cases—one famous, one forgotten—against each other. It all began with a massive, highly publicized jury’s verdict that two energy companies had formed a joint venture (a form of partnership) despite initially agreeing not to do so unless and until their boards approved (which never happened). Subsequently, an appellate court overturned the verdict and held that the parties contracted around partnership formation as a matter of law; the Texas Supreme Court later upheld the reversal. This erroneous decision could revitalize the undead subjective-intent cases, sending them on a nationwide rampage to destroy inadvertent partnership formation.
The only way to destroy a zombie is to obliterate its brain. In this case, the “brain” of the subjective-intent cases—i.e., what animates them—is the failure of legal research websites to recognize their death at the hands of the uniform partnership acts. Accordingly, the next court to address the issue of whether parties can contact around partnership should describe these cases as abrogated, thereby marking them with a red flag. Squarely repudiating the subjective-intent cases will effectively blow those ancient zombies to smithereens
Access to Justice in the Southeast
Get PDF“Access to Justice in the Southeast” provides an overview of all Access to Justice Commission organizations in the Southeastern region of the United States. This guide also includes links to statewide legal information platforms, together with descriptions and links to additional region-specific efforts. The guide is supplemented with additional resources, including links to each region’s ABA Free Legal Answers site, when available. The guide was created in conjunction with the 2023 Southeastern Association of Law Libraries conference, held in Richmond, Virginia.https://scholarship.richmond.edu/conferencematerials/1001/thumbnail.jp
“Fundamental Fairness”: Finding a Civil Right to Counsel in International Human Rights Law
Get PDFEvery other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world?
This Comment considers how international human rights law might support a civil right to counsel in the United States. Part II discusses right-to-counsel principles in U.S. law and the current state of civil legal aid. Part III examines how international and foreign law, particularly in Europe, has conceptualized and implemented a civil right to counsel. Finally, Part IV explores and evaluates several strategies for drawing upon international human rights law to secure such a right in the United States
Unavoidable Necessities: How COVID-19 and Ali v. Commonwealth Illustrate the Need for a New Balancing Test for Speedy Trial Right Claims
Get PDFThe COVID-19 pandemic is still an ever-present phenomenon in the United States. Since the pandemic began in March 2020, over one million Americans have died as a result of this disease. During that time period, the pandemic impacted the everyday lives of Americans and the institutions we depend on. The judicial system in particular was affected by COVID-19. In Virginia, the Supreme Court of Virginia declared a judicial emergency in response to the pandemic. As a result of this judicial emergency, the trials of many criminal defendants were postponed for an indefinite period of time. This resulted in many criminal defendants languishing in jail during the pandemic. Many of these defendants, in Virginia and other states, have challenged their subsequent convictions, arguing that their Sixth Amendment right to a speedy trial was violated when their trials were not allowed to move forward. These challenges have been met with little to no success. On May 31, 2022, the Court of Appeals of Virginia decided a case, Ali v. Commonwealth, that sought to bring clarity to the law of the Commonwealth relating to speedy trial rights and COVID-19.
This Comment reviews the Ali decision, the history of speedy trial jurisprudence, and the continued impact of Barker v. Wingo. In Barker, the Supreme Court of the United States set out a four factor balancing test for analyzing a defendant’s speedy trial claim. The court in question looks at the facts of the case and analyze the following: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice suffered by the defendant. Once the court has completed this analysis, it balances these factors and determines if the defendant’s right to a speedy trial had been violated.
Courts have followed this balancing approach for the last fifty years. However, this Comment illustrates how COVID-19 and previous natural disasters have shown that courts should no longer follow the Barker four-factor test. Instead, this Comment proposes a similar, but different test: the Unavoidable Necessities Test. Under this test, the government has the burden to show that it was not responsible for an intentional or negligent action that led to the defendant’s trial being delayed. If the government intentionally or negligently caused the delay in the defendant’s trial, the court would compare the intrinsic importance of the delay, the length of the delay, and its potential for prejudice to the defendant in determining whether the defendant’s speedy trial right was violated
From Kazimir Malevich’s Black Square to the Midnight Sun of Adi Da Samraj
No full textThe signature works of Kazimir Malevich and Adi Da Samraj provide the basis of a comparison between the two artists and bring into focus the drive and original intentions of the modernists of the early twentieth century and of a new “avant-garde” of the twenty-first century. For both artists the language of abstraction serves as a liberation from dominant conventional narratives that distract from rather than engender aesthetic ecstasy. Both invite the viewer’s participation in their works to be carried beyond the points of view of such narratives. Through the irony of his work, Malevich leaves his viewers stranded on a desert of incomprehensibility with a vision of reality only in the distance. Adi Da Samraj encourages and enables a demonstrable image-assisted subjective process through his work for the viewer to become Reality Itself.
In the last years of his life, Adi Da Samraj reviewed the work of Kazimir Malevich, the enigmatic Russian painter and aesthetic theorist. Malevich was one of the most significant and influential avant-garde artists of the twentieth century. His work defines the contours of a radical experimental disposition that has been emulated to one degree or another by practically all subsequent generations of avant-garde painters. Adi Da’s interest in Malevich as well as in other major artists of that period arose partly from a desire to clarify and articulate in his own writing and artistic creation the relationship between his creative process as the “new avant-garde” and that of the project of modernism as part of the development of twentieth century art as a whole. A comparison of the aesthetic intentions of the two artists informs the context and elucidates the intentions of their work in ways that may shed light on the individual claims and contributions that both artists have made for their work
Acting Cabinet Secretaries and the Twenty-Fifth Amendment
Get PDFThe Twenty-Fifth Amendment of the United States Constitution contains a mechanism that enables the Vice President, with the support of a majority of the Cabinet, to temporarily relieve the President of the powers and duties of the Presidency. The provision has never been invoked, but was actively discussed by multiple Cabinet Secretaries in response to President Trump’s actions on January 6, 2021. News reports indicate that at least two Cabinet Secretaries—Secretary of State Mike Pompeo and Treasury Secretary Steve Mnuchin—tabled these discussions in part due to uncertainties about how to operationalize the Amendment. Specifically, the Secretaries were concerned that the text of the Amendment did not specify whether Acting Cabinet Secretaries (of which there were three at the time) should be included in the vote. This Article considers that question in light of both the commonlaw and Supreme Court of the United States precedent, concluding that Acting Secretaries should indeed be counted. However, the Article also highlights the political risks caused by the text’s ambiguity and proposes a legislative solution to sidestep the issue
Going the Extra Mile: Expanding the Promoting Affordable Housing Near Transit Act
Get PDFThe Promoting Affordable Housing Near Transit Act (“Act”), introduced in Congress in June 2021 and signed into law six months later, proposes a goal of balancing the disproportionately-high costs of housing and transportation felt by lower-income families by combining these resources in one project: transit-oriented housing developments. Middle-income and wealthy suburbanites have ready access to cities by car, but lower-income urbanites lack access to the suburbs without a private vehicle. While the goal of the Act recognizes this disparate outcome, the Act’s failure to include expansion of mass transit into the suburbs will continue to restrict low-income minorities to urban centers, failing to do more than place a band-aid on a decades-long issue. As jobs increasingly move to the suburbs, placing affordable housing in those areas and creating a transit option for urban dwellers offers a more equitable choice in housing for low-income households. The Act should be amended to require expansion of mass transportation into the suburbs, creating an interconnected system between cities, the suburbs, and suburban neighborhoods. The goal of this Comment is to take the techniques employed in two of the nation’s best transit cities and combine them with the affordability focus of the Act, leading to positive economic development that includes low-income households.
The issue of limited affordable housing is multidimensional, requiring a correspondingly complex solution for this historic problem. Thus, the focus of this Comment touches on just one problematic environment and one potential solution. This Comment uses major metropolitan cities and their surrounding suburbs as the basis of analysis, not to the exclusion of other localities but in recognition of the unsuitability of a one-size-fits-all solution.
It is also important to note here that while the focus of the divide in this Comment is on socioeconomic status and not race, the two are inextricably linked. The history of racial segregation in the United States contributes to the disparity between the racial makeup of the country and of its socioeconomic classes. As you will see, many of the facially socioeconomic decisions made in the last century act as a mask for racially motivated animus. While the examples and solutions provided in this Comment do not focus on the racial disparity in these developments, it must be understood that these implications always lurk beneath the surface. Part I of this Comment will give a brief overview of the history of residential segregation in the United States and how transportation policies contributed to the concentration of poverty in one area, namely urban city centers. This historical overview focuses on mid-twentieth century America, specifically during the post-World War II era where housing subsidies became more abundant and, increasingly, a covert form of discrimination. This Part concludes by discussing why public transportation has failed to make its way to the suburbs and why its expansion into these areas is necessary for the Act’s success.
Part II expounds upon the particulars of the Act and its proposed implementation in the current transportation and housing framework. Finally, Part III offers examples of successful transit-oriented development projects and suggestions of how expansion into the suburbs and multimodal transportation options can cement the Act’s success. This Part proposes amending the Act to mandate that federal transit projects affected by the Act include transportation expansion into the suburbs. While the Act in its current form does not exclude the suburbs from transit development, neither does it set forth an objective to promote it. Because most mass transit exists in major metropolitan areas, the Act should demand inclusion of the suburbs in these new developments to help bridge the divide between urban and suburban communities. Lastly, this Part addresses critiques of current approaches to the housing shortage, such as mixed-income communities, and articulates why the proposals in. this Comment can mitigate some of these concerns