Now that I'm back from Oklahoma City University's conference, "trusts and estates meets gender, race, and class," I want to talk a little bit about it. Carla Spivack organized it to get a bunch of us who've been working in what I think of as "progressive trusts and estates" together. The core idea with this group -- I think -- is that we want to do things differently. Differently in terms of pedagogy and scholarship. The pedagogy discussion was terrific -- and pretty well advanced. Unsurprisingly trusts and estates faculty have a lot of ideas for integrating exercises like client interviewing and drafting into the basic course in ways that seem both useful and doable.
And on the scholarship side there were some terrific papers as well. Bridget Crawford and Tony Infanti -- who have helped organize the critical tax scholars -- framed the day's discussion with a look at recent literature in trusts and estates and some of the open questions. Casey Ross-Petherick gave a really surprising look at the American Indian Probate Reform Act (a statute about which I knew nothing). Stephen Clowney talked about his work on monuments. Friend of the blog Kent Schenkel spoke about a really intriguing question -- how the repeal of fee tail fits (or doesn't) with Americans' love of property that was so apparent around the time of the Revolution. I hope to speculate some more on this when he posts his paper to ssrn. My co-author Deborah Gordon spoke about expressions of inheritance and devise outside of the context of wills (what she calls letters non-testamentary). This builds on her previous work on language regarding death. And there was a lot of talk about wealth inequality and how that's grown over time.
I rolled out the first version of my paper on trusts for slavery and freedom -- that is, the use of trusts to keep slaves out of the hands of creditors, to manage them, and even sometimes to provide them with quasi-freedom. There's no telling how legal technology is going to be used. (Here's an audio file of my talk if you're interested. I'm looking forward to working this up in substantially greater detail and to rolling out a lot more data on both the appellate cases regarding slaves in trust and the view from the county probate offices, too.)
Over the next few weeks I hope to talk in depth about a bunch of the papers.
From the editors at the Pitt Law Review:
The University of Pittsburgh Law Review is seeking submissions for a symposium in honor of the late Derrick A. Bell, to be hosted on March 27-28, 2014. The focus of the symposium is to honor the memory of Professor Bell through the exchange of ideas on the future of critical race theory in legal scholarship. Authors and presenters are invited to submit proposals on topics relating to this theme, such as the following:
Contemporary Issues in Critical Race Theory Critical analyses of current issues in race and the law, including examinations of how contemporary legal issues may have unnoticed racial effects.
Critical Race Theory & Methodology Explorations of new methods for critical race scholarship, including interdisciplinary methods or the repurposing of older methods. We welcome scholarship on methodology as well as scholarship resulting from the use of new methods.
Critical Intersections Investigations into how race intersects with other categories of human existence (e.g. gender, sexuality, class) and how the law affects persons who inhabit these intersecting categories.
Critical Pedagogy Professor Bell considered teaching to be an essential part of his legacy, and so we welcome submissions that discuss a critical approach to legal pedagogy.
I keep seeing announcement of various Association of American Law Schools sections calling for papers for panels at the 2014 meeting in New York City. They're tacked up on different blogs right now and I thought it might be useful to have as comprehensive a list as possible in one place. Is the list complete? I'm not sure - but I'm optimistic that, by the time readers get to the comments, it will be.
This long list is the happy result of the AALS incentivizing sections to open up their panels using CFP's. Kudos to the folks who pushed that new policy through. One helpful hint, though: it would be nice if the AALS required earlier announcement dates so that non-insider faculty had a better shot of perparing a strong submission in time for the deadline. And a caveat for readers: the AALS limits submissions to full-time faculty at AALS member schools.
Here's my initial shot at the list, in no particular order:
AALS Section on Defamation and Privacy: Children’s Privacy Rights Against their Parents (papers due August 15, 2013)
AALS Section on Internet and Computer Law: The Disruptive Rise of the Mobile Internet (papers due September 3, 2013)
AALS Section on Securities Law: Global Securities Fraud (papers due August 25, 2013)
AALS Sections on Financial Institutions & Consumer Financial Services and on European Law: Taking Stock of Post-Crisis Reforms: Local, Global, and Comparative Perspectives on Financial Security Regulation (papers due September 3, 2013)
AALS Section on Women in Legal Education: New Voices in Gender Studies (papers due August 30, 2013)
AALS Section on Children and the Law: Guns, Violence and Children (papers due August 15, 2013)
AALS Section on Law and Religion: Cooperating With Evil, Complicity with Sin (papers due August 15, 2013)
AALS Section on Alternative Dispute Resolution: ADR and the Regulatory State (papers due Septbember 5, 2013)
AALS Sections on Insurance Law and on Torts Law: On The Unavoidable Intersection of Torts and Insurance Law (papers due September 6, 2013)
AALS Section on Indian Nations and Indigenous Peoples: The Relationship Between Indian Law and Tribal Law (papers due August 14, 2013)
AALS Sections on Poverty Law and on Clinical Legal Education: 50 Years After the “War on Poverty:” Evaluating Past Enactments and Innovative Approaches for Addressing Poverty in the 21st Century (papers due August 9, 2013)
AALS Section on Employment Discrimination Law: Title VII at 50: Looking Forward, Looking Back (papers due August 15, 2013)AALS Sections on Immigration Law and Family and on Juvenile Law: Families and Immigration Law (papers due August 15, 2013)
And separate from these Section calls for papers for the 2014 Conference, here are a few other things to consider in a similar vein.
AALS Call for Schoalrly Papers by Junior Law Professors (papers due August 9, 2013)
AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction (papers due September 15, 2013)
AALS Criminal Justice Section Junior Scholars Paper Competition (papers due September 1, 2013)
Sections on Education Law and on Disability Law: Law and the Education of Students with Disabilities (deadline extended to September 1, 2013)
I also received this call for papers for which I have no link:
AALS Section on Sexual Orientation and Gender Identity Issues: Courting Justices: LGBT Law Advances in the Twenty-First Century.
In the past two decades, lawyers, activists, individuals and organizations have contributed to enormous changes in the legal landscape for LGBT people and their families. With pending Supreme Court decisions on Proposition 8 and the Defense of Marriage Act, and a wide variety of issues related to adoption, immigration, and inheritance for LGBT families coming to a head, the Section on Sexual Orientation and Gender Identity Issues of the AALS is seeking scholars interested in presenting papers or works in progress at the annual meeting in New York, NY. Our hope is that this panel will place the experiences, stories, and scholarship of gay and lesbian persons and their families at the center of the discussion of twenty-first century legal developments in immigration, family law, and criminal law. The program, entitled, “Courting Justices: LGBT Law Advances in the Twenty-First Century” is designed to encompass a wide variety of emerging issues that are important to LGBT individuals and their families. Scholars interested in presenting papers or works in progress should send abstracts to firstname.lastname@example.org by August 10, 2013.
AALS Sections on Nonprofit and Philanthropy Law and on Law, Medicine and Health Care: The Role of Nonprofits Under the Affordable Care Act (abstracts due August 31, 2013)
AALS Section on International Law: Download International Law-Making and the United Nations (papers and abstracts due September 10, 2013)
AALS Sections on State and Local Government Law and on Comparative Law: Comparative Urban Governance (papers due September 3, 2013)
AALS Section on Legislation and Law of the Political Process: From Reynolds v. Simms to Shelby County and Beyond (abstracts due September 20, 2013).
From the communitylibraries.net project:
We are delighted to announce the launch of a new AHRC-funded international research network on Community Libraries, which aims to establish a dynamic, interdisciplinary research forum to investigate the role of libraries in shaping communities in the long eighteenth century. Developed by Dr Mark Towsey (University of Liverpool) together with partners at Loyola University Chicago, the Newberry Library, and Dr Williams’s Library (London), the Network will explain the emergence of libraries in the ‘public sphere’ between 1650 and 1850. We will assess the contribution made by libraries to the circulation and reception of print of all kinds, and to the forging of collective identities amongst local, national, and international communities of readers. In addition, the network aims to explore the emergence of libraries in comparative perspective, asking how far models of library provision and administration were disseminated, discussed, imitated, and challenged as they travelled between different social environments and political regimes.
The antebellum college library catalogs and also the college literary society borrowing records have a lot to contribute to the history of the book project.
The image is of Washington Hall on the Washington and Lee campus. As I recall the Washington Literary Society's offices were on the upper floor of the building. Their library records and debate minutes are a terrific source of information on what the students were reading and thinking, which should be used in conjunction with the addresses given to literary societies. Together those will allow us to reconstruct the world of ideas of constitutionalism, utility, and slavery so central to the old South.
Carla Spivack of Oklahoma City University School of Law has posted a call for papers for the conference “Wills, Trusts and Estates Meets Gender, Race and Class,” which will be in Oklahoma City on September 27-28, 2013. Cribbing now from the CFP:
This conference seeks to bring the insights of progressive property theory to the area of inheritance and succession law and will address the many points of intersection between inheritance law, gender and race, social structure, wealth inequality, domestic violence, and indigenous people’s rights, among others. Recognizing that inheritance law is a society’s DNA, the conference will present theoretical, historical, and practical approaches to ways it has and continues to maintain social structure and ways it can change it.
The deadline for proposals is August 1. Send them to cspivack[@]okcu.edu
I'm very much looking forward to returning to Oklahoma for the conference and to hearing the latest on how issues of race, class, and gender are important to trusts and estates pedagogy, practice, and scholarship. I'm going to be talking about the trust for slavery and freedom -- that is, how the technology of trusts was used to manage enslaved human beings, to keep them out of the hands of creditors, and on occasion to free them.
The image is Robinson Hall at Washington and Lee University, which was built using money left to Washington College. It's one of the images in my mind's eye when I think of fortunes left in trust. I talk a little more about the story of Robinson Hall here.
AALS Joint Program of the Financial Institutions & Consumer Financial Services Section and the European Law Section
Taking Stock of Post-Crisis Reforms: Local, Global, and Comparative Perspectives on Financial Sector Regulation
AALS Annual Meeting, January 3, 2014
New York, New York
The AALS Section on Financial Institutions & Consumer Financial Services and Section on European Law are pleased to announce that they are sponsoring a Call for Papers for their joint program on Friday, January 3, at the AALS 2014 Annual Meeting in New York, New York.
The topic of the program and call for papers is “Taking Stock of Post-Crisis Reforms: Local, Global, and Comparative Perspectives on Financial Sector Regulation.” The financial crisis of 2008 was truly a global crisis, and the world continues to face a wide range of post-crisis economic and political challenges. Today, several years after the market turmoil began, both the United States and the European Union are in the midst of major regulatory reforms in the financial services sector. The effects of these financial regulation reforms however, remain unclear. Structural reform in the U.S. is thus far limited to a yet-to-be finalized "Volcker Rule," while in the U.K. and the Eurozone, respectively, Vickers- and Liikanen-style "ring-fencing" remain incomplete if not inchoate. Debate in the U.S. still rages around whether and how smaller "community banks" should be regulated differently from megabanks, while the E.U. continues to debate whether to form a "banking union" at all and, if so, what it might or could entail, given various political constraints. Meanwhile, the U.S. Federal Reserve continues to innovate in the realm of monetary policy in the absence of functional fiscal policy, while the European Central Bank moves furtively toward acting as a full Fed-style central bank capable of backstopping sovereign debt instruments and providing real liquidity. Where might these multiple developments be ultimately heading, and what might the Americans and Europeans learn from each other as they grope tentatively forward? What broader implications do they raise for political accountability and legitimacy in a post-crisis world?
Form and length of submission
The submissions committee looks forward to reviewing any papers that address the foregoing topics. While the preference will be given to papers with a clearly comparative focus, the committee’s overall goal is to select papers that will facilitate discussion of, and comparisons between, American and European approaches to various aspects of financial services regulation. Potential topics include macro-prudential regulation, consumer protection, monetary policy, regulation and supervision of financial intermediaries, structural reforms, and related issues of political accountability and legitimacy.
Abstracts should be comprehensive enough to allow the committee to meaningfully evaluate the aims and likely content of papers they propose. Eligible law faculty are invited to submit manuscripts or abstracts dealing with any aspect of the foregoing topics. Untenured faculty members are particularly encouraged to submit manuscripts or abstracts.
The initial review of the papers will be blind. Accordingly the author should submit a cover letter with the paper. However, the paper itself, including the title page and footnotes must not contain any references identifying the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes.
Papers may be accepted for publication but must not be published prior to the Annual Meeting.
Deadline and submission method
The deadline for submission is September 3, 2013.
Papers will be selected after review by members of a Committee appointed by the Chairs of the two sections. The authors of the selected papers will be notified by September 30, 2013.
The Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.
Full-time faculty members of AALS member law schools are eligible to submit papers. The following are ineligible to submit: foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members, graduate students, fellows, non-law school faculty, and faculty at fee-paid non-member schools. Papers co-authored with a person ineligible to submit on their own may be submitted by the eligible co-author.
Please forward this Call for Papers to any eligible faculty who might be interested.
Yxta Maya Murray at Loyola Law School has passed along a call for papers for a conference on Law, Peace, and Violence: Jurisprudence and the Possibilities of Peace next March at Seattle University's law school. Cribbing now a little from the call for papers:
Can the law help forge a more peaceful world? In this symposium, legal scholars will study law’s potential to increase domestic and inter-national peace. We will also focus on the problems that peace rhetoric creates for rights developments, particularly in the ways that it is used to marginalize outsiders’ direct action efforts.
Nonviolent resistance often rebels against the rule of law. Étienne de La Boétie described this conflict in 1553, noting the dissenter "can deliver [herself] if [she] tr[ies], not by taking action, but merely by willing to be free. . . . I do not ask that you place hands upon the tyrant to topple him over, but simply that you support him no longer." Similarly, in "Resistance to Civil Government" (1849), Henry David Thoreau maintained "I was not born to be forced. I will breathe after my own fashion. Let us see who is the strongest." On the other hand, Frantz Fanon suggested that colonized peo-ples have a right to use violence to resist oppression, and his work has inspired anti-colonial and anti-racist activists around the world, including in the Black liberation movement in the United States.
Where does the peacemaking lawyer exist in this politics?
This is a super-exciting question. And long-time readers of the facutly lounge may recall that this is an issue of immense interest to me. And reminds me that very soon I want to talk about the role of the lawyers for the enslaved defendants in the trials following the Nat Turner rebellion. The brutality of the rebellion and its aftermath reminds me of just how damaging violence was. The violence of slavery sparked the rebellion, which led to extraordinary repression. And while some lawyers tried to constrain the violence in the aftermath -- and may have had some success -- there was blood everywhere. There are a lot of examples in our nation's history of just how much violence begets more violence, as well as how difficult it is for the law to constrain or respond to violence. In some instances in our history, it was law that licensed or even encouraged violence.
There is a more optimistic story to tell of the role of law in our nation's history, of course -- about the way that law has helped construct a world of order and justice. Quakers, for instance, after they got done critiquing the injustice of law in the United Kingdom, set about trying to build a better world through law here in the Americas (and here). One piece of that story that particularly interests me is how much law and judges lay at the center of Quaker thought in the 1650s and 1660s. Their mistreatment by the legal system helped to shape their identity and their sense of how law should operate. I think that's one under-explored area of both Quaker history and of seventeenth century law. This is a big part of George Fox's Autobiography and later William Penn. That's been written about some -- but this is also a big part of the lesser-known Quaker pamphlets of the era. Hence I have a picture of the oak at the London Grove Quaker meeting, which is supposed to go back to the era of William Penn (and thus to the early 18th century).
ContractsProf Blog is hosting an online symposium on Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law over the next two weeks. You can read Jeremy Telman’s introduction of the first five reviewers here.
I had a chance to read and comment on a draft chapter when Peggy came out here for a workshop some time back. I am also participating in the symposium and will post a link here when my post(s) appear. In the meantime, though, you should head over to the ContractsProf Blog to see the posts so far.
Two days of the annual spring meeting of the American Bankruptcy Institute have come and gone. I've appreciated several fine programs that are valuable not only to the 1000+ lawyers and judges who are here but have alerted me to a serious problem. Depending on the District, from 5-8% of bankruptcy cases are currently filed pro se. This is in part what Congress intended with the 2005 Bankruptcy Abuse Protection and Consumer Protection Act [sic]. Specific authorization of "bankruptcy petition preparers" and onerous certifications of fact by lawyers have had the effect of driving folks priced out of the market of bankruptcy attorneys into the arms of untraceable internet operators who take $400-600 for pleadings that fail their intended purpose.
I was aware of this phenomenon but not its extent. The burden of dealing with an increasing volume of pro se filers whose filings are incomplete and who have no advice on dealing with issues like properly listing exemptions, avoiding liens, and even what is a "claim" fall on Chapter 7 trustees and the court. Word in the hallways is that some trustees are getting out of the business given the additional complexities caused by unrepresented debtors.
What is encouraging, however, were some conversations about adding preparation of simple bankruptcy petitions (and, of course, the other pleadings required at the outset of a case) to student-staffed clinical programs. I hope to pursue this possibility but want to suggest that other law schools consider adding supervised petition preparation to their clinical offerings.I've always believed that bankruptcy law is a great capstone course. Not only does it combine statutory construction and Constitutional law, it forces students to recall and apply what they learned in first year contracts, property, and torts. Throwing in readings and discussions of legal policy (and, in my case, theology of debt relief) makes teaching bankruptcy loads of fun. Combining the classroom with fieldwork would be frosting on the cake.
I promised to talk a bit more about the Organs & Inducements symposium that I mentioned earlier. I’ll refrain from giving much detail about individual papers at this point, as many of the authors will be substantially revising their papers over the summer and I don’t want to misrepresent them. But I will give some detail about how the conference came into being, about how Phil Cook and I conceived of the conference theme, and how we settled on the concept of “inducements.” And I’ll be back later to talk more about specific papers as the authors have a chance to revise and submit their papers to Law & Contemporary Problems for publication.
Phil and I began talking a year or two ago about our overlapping interests – mine in what I frequently refer to as “taboo trades,” and his in what might be referred to as the economics of “vice.” For example, Phil has written extensively on issues of gun control (Gun Violence: The Real Costs, Oxford University Press, 2000), state lotteries (Selling Hope: State Lotteries in America, Harvard University Press, 1989), and alcohol (Paying the Tab: The Costs and Benefits of Alcohol Control, Princeton University Press, 2007).
Anyway, Phil and I began discussing the many recent advances in organ donation, none of which have managed to eliminate the waiting list. We wanted to convene a discussion designed to tackle what we thought of as “next steps” in the long-running debate about methods to increase the supply of transplantable organs. We purposely employed the term “inducements,” rather than “incentives,” believing that the term “incentives” had become too closely tied with organ markets in the traditional sense – compensation for organs with money, vouchers, or some close cousin.
In contrast, we viewed the phrase “inducement” as potentially signifying something much broader and more inclusive. According to Merriam Webster, an inducement is simply “a motive or consideration that leads one to action.” And, as we thought about recent advances in organ donation and organ policy reform that most intrigued us, most did not involve monetary or similar compensation, but rather more subtle means to facilitate organ donation.
Thus, from our perspective, inducements could range from public awareness campaigns exhorting people to donate and informing them of the severity of the organ shortage, at one of the spectrum, to outright organ auction markets at the other end of the spectrum. But we largely expected authors to address the many interesting variations in inducement in between those two extremes, and that is exactly what our participants did. The papers covered, for example, experiments regarding changes in the framing of the donation decision; the analysis of possible changes in the consent regime – for example, opt in versus opt out; priority schemes, such as that in Israel, under which priority for an organ is given to one who has agreed to be a donor; reciprocal-exchange schemes such as swaps and NEAD chains; other barter-based systems that might expand the range of tradable items to include other types of charitable gifts; and markets tightly constrained through government oversight with prices set by regulation, rather than by supply and demand.
In other words, debates about organ policy reform have often been framed in terms of a market versus gift dichotomy, with a focus on the preservation of “altruism” -- a framing that Kieran Healy and I have previously criticized as misleading and unhelpful. As we have argued, and as the contributions of our symposium authors highlight, the real world is far more complex than this, with many shades of gray. And donors act for a variety of motives, only some of which are “altruistic” in the pure sense of that term.
We also encouraged our participants to go a step further, to address regulatory next steps. If inducements are permissible, what kind? Are all inducements created equally? Or are some more acceptable than others? And why?
Do all potential donors receive an equal inducement? Why or why not? Who is entitled to apply the inducement? Government? Private actors? Medical professionals? Transplant recipients?
In other words, in a system with at least some inducements – including our present system – what safeguards are necessary to assure us that the system is safe, fair, efficient, and egalitarian? And do we value each of those things equally or not?
Those are the questions we hoped to engage over the two-day symposium and our participants did not disappoint. Naturally, I’m biased, but I found the conversation both energizing and challenging. I think that others did too. And I’m confident that some excellent papers will emerge from this symposium.
Keynote speaker, Al Roth, discussed his work on organ donation, including recent experiments with fellow Organs and Inducements participant, Judd Kessler. You can read Al’s write-up of the event at his Market Design blog.
Anyway, I think that the event was a big success and I will have more to say about it in the coming days. For now, I’ll just post the symposium abstract, along with a thanks to all the many wonderful participants who made this event a success.
More to follow . . .
The need for human organs for transplantation far outstrips supply. As a result, a large literature has developed debating possible means to address the gap. Suggestions range from procurement system improvements and changes in the consent regime, in the case of cadaveric organ donation, to inventive exchange systems (such as swaps and NEAD chains) and financial incentives of various sorts, in the case of live organ donation.
In Organs and Inducements, contributors build on existing debates on mechanisms designed to bridge the gap between organ demand and supply, to address deeper questions regarding inducements to donate. Among the varied possible mechanisms of persuasion and incentives at society’s disposal, what are the relative advantages and disadvantages of each? What are the larger ethical, economic, sociological, and psychological issues raised by these different types of inducements, including non-financial inducements? Why are some accepted by the law and society at large, while others are not? Do the lines we’ve drawn among permissible and impermissible inducements make sense, given the concerns those rules are meant to address?
From an email that I received this week:
The Younger Comparativists Committee of the American Society of Comparative Law is pleased to announce that its second annual conference will be held on April 18-19, 2013, at the Indiana University Robert H. McKinney School of Law in Indianapolis, Indiana. The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists, defined as scholars who have been involved in comparative law for fewer than ten years. More than 130 younger scholars from around the world submitted abstracts in response to a Call for Papers issued in September 2012. Over 80 younger scholars who have been involved in comparative law for less than ten years as well as a select group of graduate students are slated to present their research at this conference covering a wide range of topics in comparative private and public law.
More information about the conference and a preliminary agenda are available on the following website: http://indylaw.indiana.edu/YCCconference/.