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Freedom of Inheritance
Get PDFThe law grants individuals the broad freedom of disposition to decide how their property should be distributed upon death. The rationale underlying freedom of disposition is that the choices of individual donors produce results that maximize social welfare. Policymakers are rightfully skeptical that they can craft a mandatory estate plan that fits all situations or that probate courts can consistently and accurately assess the merits of particular dispositions of property. By contrast, the donor is in the best position to evaluate her own specific circumstances and to place property in the hands of the donees who will benefit the most.
The donor, however, is not the sole decision-maker regarding the disposition of her property after death. To be sure, she enjoys broad freedom to craft an estate plan to her liking. But when the donor decides to make a gift to a particular donee, the donee must also make a decision. Specifically, she must decide either to accept the gift from the donor or to reject it. Whereas the donor’s discretion to decide which testamentary gifts to make is referred to as freedom of disposition, the donee’s discretion to decide which testamentary gifts to accept or to reject can be labeled “freedom of inheritance.”
Although legal scholars have paid much attention to the donor’s freedom of disposition and have explained that it plays an important role in maximizing social welfare, relatively little attention has been paid to the donee’s freedom of inheritance and the role it plays in maximizing the utility generated from the donor’s estate. To fill this analytical void, this Article defines the donee’s freedom of inheritance and identifies how it works in concert with the donor’s freedom of disposition to maximize social welfare. Ultimately, this Article argues that the donee’s freedom of inheritance is an important part of the process of transferring wealth after death and that policymakers should strive to facilitate the donee’s exercise of this freedom when crafting the law of succession
Qualitative Diversity: Affirmative Action’s New Reframe
Get PDFHow is diversity measured? When is diversity sufficient? The Supreme Court has pressed these hard questions in affirmative action cases. With respect to college admissions, although a university campus might have a diverse student body, universities are beginning to justify the continuation of race-based affirmative action programs on the need for qualitative diversity, i.e., intraracial diversity—diversity within diversity.
In the Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, the university advanced two novel diversity arguments, never before employed in affirmative action cases, to justify its race-based admissions policy: there is a lack of diversity within small courses of 5–24 students, and there is a lack of diversity among the admitted minority students. The minorities admitted through the state’s Top Ten Percent program, a neutral class rank program, typically consisted of those from lower socioeconomic backgrounds and who were the first in their family to attend college. The university argued that its race-based holistic admissions program was necessary to admit students who could bring viewpoints and experiences different from the students admitted through the Top Ten Percent Program. Others construed this argument as the university, in essence, wanting more privileged minorities with higher credentials.
This article explores the difficulties raised by the qualitative diversity argument and anticipates the challenges it might wreak upon the Civil Rights movement. This article cautions that a reliance on qualitative diversity to justify affirmative action undermines one of the bases upon which the Civil Rights movement was founded—to overcome racial stereotypes. An affirmative action program based on qualitative diversity also risks jeopardizing the legitimacy of affirmative action altogether when questions of deservedness within a race are raised and risks jeopardizing the united front needed to advance civil rights if people within a race are pitted against each other
Upstanders, Whistle-Blowers, and Rescuers
Get PDFCommunities of responsibility and the cultures that nurture them take many steps to build. An important step is to honor remarkable individuals with courage and commitment. Raphael Lemkin, Benjamin Ferencz, Luis Moreno Ocampo, Emmanuel Uwurukundo, Samantha Power, filmmaker Edet Belzberg, and Victor Koningsberger deserve recognition and honor. At the same time, we need to emphasize that an upstander does not need extraordinary qualities. Ordinary people can and do stand up in small and big ways against oppression and injustice. Education can help. Speeches can help. When we honor heroes, we should not simply recognize individual courage. Doing so can help to constitute a community around the value of standing up. Joining with others to make it more possible for each next act of upstanding can help even more. Pushing to construct peer cultures of upstanding, reducing fears of speaking out against bullying and discrimination, preparing people to recognize and combat denial, rationalization, and feeling overwhelmed, and building social networks of mutual aid and support, will help us all be upstanders and help us rescue the humanity of others and of ourselves
Justice Scalia and Fourth Estate Skepticism
Get PDFThe about-face in characterization of the press during Justice Scalia\u27s three decades on the Court is worthy of a discussion about its underlying causes and also a discussion about its potential effects. As I have noted elsewhere, both the explanations for the shift and the possible ramifications of it are complex and multifaceted. Scalia\u27s push for a new, less positive depiction of the press came at a time when the institutional press experienced significant change and its reputation among the American public plummeted-suggesting that Justice Scalia (and, ultimately, his colleagues on the Court) were merely being perceptive observers of the new media reality, [m]apping [their] views onto more widely held societal views that the press is no longer valuable or laudable and reflecting in their opinions the growing consensus that the modem-day press, in its day-to-day operations, is not doing a good job of being press-like in the constitutional sense. But the reversal from positive to skeptical depictions by the Court is noteworthy, no matter its cause, both because of its likely impact on the institutional press and because of the potential that it will impact wider First Amendment rights
Rocky Mountain Mineral Law Foundation: Special Projects Funding Proposal
Get PDFThe Environmental Dispute Resolution (EDR) Program requests RMMLF Special Project funding to develop a series of inter-connected role-play simulation exercises that will be used to teach mineral law students and practitioners negotiation and collaborative problem-solving skills in a risk-free, but realistic, environment. Each of the exercises will rely on the same set of facts about a mineral development project. They will be designed to successively engage students in learning key skills and concepts; each simulation will build on the lessons learned in prior exercises. The simulations will be designed to expose participants to a variety of stakeholder roles, with the aim of enhancing participants’ ability to fully understand the varying perspectives on complex mineral law issues
Risks and Rewards of Externships: Exploring Goals and Methods
Get PDFThis article explored the risks and rewards of designing and teaching in an externship program, the goals one might have, and the methods one might use. We have argued that it is important to pay attention to the principles of intentional design when developing an externship program. In particular, we have identified and challenged the assumption that skills development must be the predominant goal for externships. This is a common assumption on the part of legal education regulators in our respective home countries, the USA and Australia, as well as in England and Wales. Skills development can, but does not have to, be a focus for every externship. If it is to be a focus, the targeted skills should be articulated as clearly and specifically as possible. Students must learn the theory and methods behind the skills to be used in the placement, either through appropriate pre-requisites, a skills-focused classroom component, or a clear understanding that the placement supervisor will be able to impart both the relevant theory and methods. Then the reflection component also must be designed to enhance students’ acquisition of the identified skills. We have explored how this can be done with either the “tailor-made” or the “retail” externship structure. However, we believe the regulatory focus on skills has obscured the important values that can be acquired through a well-designed and well-taught externship
The Risk of an Anti-Consumer CFPB
Get PDFThe risks of an anti-consumer CFPB go beyond just those cases currently under investigation. America has a massive financial sector that is constantly evolving and reinventing itself. This striving for innovation and efficiency is, of course, one of the American financial system’s great advantages. Nevertheless, the Sun-Tzu-worshipping, MBA-wielding financiers that use boilerplate consumer credit contracts as weapons in their endless market-share battles are paying attention to what the agency is doing—and more importantly, to what it is not doing. A chilled CFPB law enforcement program will embolden the consumer finance industry to roll out more misleading advertising, more deceptive sales scripts, more onerous hidden fees, larger kickbacks in exchange for ripping off customers, weaker credit reporting accuracy safeguards, less identity-theft resilient services, and more dehumanizing one-on-one debt collection. At its core, the fight over CFPB leadership matters because a chilled CFPB law enforcement program will lead to a disempowered, less affluent America
Clarence Thomas The Questioner
Get PDFOne of Justice Clarence Thomas’s most remarked upon characteristics is his reluctance to ask questions during oral argument. Many have criticized him for his silence. Others defend his silence, noting, for instance, that historically oral argument played a much less significant role and that the Justice’s written opinions speak for themselves. What has been overlooked in this debate, however, is the fact that Justice Thomas is talented at asking questions. Indeed, in many ways, he is a model questioner. Drawing on the most comprehensive collection of Thomas’s oral argument questions ever compiled, we urge the Justice to ask more questions for a new reason: he is good at it
Climate Regulation of the Electricity Industry: A Comparative View from Australia, Great Britain, South Korea, and the United States
Get PDFClimate regulation of the electricity sector is one of the most important growing — and rapidly changing — areas of law and policy today. This is both because of the critical role that electricity plays in modern society, acting as economic lifeblood, and because of electricity’s part in driving climate change, accounting for more greenhouse gas (GHG) emissions globally than any other activity. This article provides an introduction to different methods of regulating climate emissions from the electricity sector. It does so through detailed, comparative accounts of climate regulation of electricity in four different jurisdictions: Australia, Great Britain, South Korea, and the United States. For each jurisdiction, the article provides a primer on the nation’s electricity sector, its different policy tools for regulating GHG emissions from the sector, and the influence of those regulations in reshaping the provision of electricity in the jurisdiction. A concluding analysis section identifies key lessons learned to date about climate regulation of electricity globally
Find Out What It Means to Me: The Politics of Respect and Dignity in Sexual Orientation Antidiscrimination
Get PDFThis Article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the Article finds that the marriage cases at the Supreme Court—Obergefell and United States v. Windsor—shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The Article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where he approached the concept of dignity as an inherent respect for sexual identity and private choices, to his definition of dignity in the marriage cases, where he viewed dignity in terms of respectability—as something not inherent but earned by conforming to the norms of a dominant culture.
To be sure, marriage equality significantly furthered the rights of same-sex couples. Yet, in order to make larger advances for sexual orientation antidiscrimination protections—such as explicit protections under Title VII—the framing of gay rights must return to the politics of respect. Marriage is problematic because the juxtaposition of same-sex relationships against heteronormative values creates a hierarchy that does not corroborate with the idea of inherent human worth. Hence, the Article proposes ways to undo the respectability politics of Obergefell so that future movements toward sexual orientation antidiscrimination can be accomplished by latching onto the doctrinal successes of the marriage equality movement but detaching from connotations of respectability