The Faculty Lounge

New Book Announcement - Critical Trusts Law: Reading Roger Cotterrell (Nick Piška & Hayley Gibson eds. 2024))

I've just picked up an exciting new book that contributes significantly to the Trusts & Estates field. Critical Trusts Law: Reading Roger Cotterrell (Nick Piška & Hayley Gibson eds., 2024) is worth a read for anyone writing in this area.

Here is a description of the book, written by its editors, who are both faculty members at Kent Law School in the UK:

In May 2016 a group of trust lawyers and activists met at The Shard, London, to discuss the relationship between pension trusts and global corporate capitalism. During a break, standing at the large glass windows looking down at the City of London, Nick Piška and Adam Gearey reflected on the paucity of critical trusts scholarship given the role of trusts in the global financial crisis and rising wealth inequality. The conversation naturally turned to the work of Roger Cotterrell on trusts,[1] one of the few theoretical-doctrinal interventions to have linked trusts to questions of power and inequality, and the seed of an idea for a symposium revisiting themes in Cotterrell’s work on trusts was sown. In 2017, 30 years since the publication of his first in a trilogy of articles on trusts law, we hosted that symposium in Canterbury.

This edited collection brings together a number of the papers presented at that symposium. Themes explored in the chapters include ideology and the (in)visibility of power; the abuse of trusts; the gendering of trusts; and the implications of trusts regimes for tax, finance and banking. Some set out new agendas for trusts scholarship. Many turn to developments in trusts practice since the publication of Cotterrell’s articles (for example developments in asset protection trusts) attest to the continued prescience of Cotterrell’s critique.

The collection will be of interest to trusts students and researchers looking for critical reflections on trusts law, theory and practice. At Kent Law School we have been setting Cotterrell’s articles on trusts as ‘core reading’ on our undergraduate Equity & Trusts module for many years. Introducing trusts to undergraduate students might appear daunting enough, but introducing the trust idea, trust doctrine, and a critique of the trust form simultaneously has been challenging and exhilarating in (almost) equal measure. Each year we find different nuances and different points to emphasize in Cotterrell’s works as the legal, social, economic and theoretical milieu has shifted—and each year our students bring different questions and ideas to the seminars and assessments.

The collection consists of 13 chapters, including an introduction to and overview of critical trusts scholarship by Nick Piška and an afterword from Roger Cotterrell.

B & W 229 x 152 mm | Perfect Bound on White w/Matte Laminate | 242 pages | Paperback ISBN 978-1-910761-23-6 | E-book (ePDF) ISBN 978-1-910761-24-3 | 10 September 2024

The book is available for download for free, here.

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[1] See Roger Cotterrell, ‘Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship,’ Journal of Law and Society 14 (1987); Roger Cotterrell, ‘Some Sociological Aspects of the Controversy Around the Legal Validity of Private Purpose Trusts,’ in Equity and Contemporary Legal Developments ed. Stephen Goldstein (1992); Roger Cotterrell, ‘Trusting in Law: Legal and Moral Concepts of Trust,’ Current Law Problems 46 (1993).

My Interview with UVA Law on WHO organ and blood policies

I recently sat down for a Q&A with UVA Law for my recent paper with Al Roth, WHO Says Countries Should Be Self-Sufficient In (Unremunerated) Organs And Blood. The full interview “WHO Stifles International Blood and Organ Donations, Argue Professors” is available in full here.

 

Here are some excerpts:

Krawiec and co-author Alvin E. Roth explain the drawbacks of current WHO standards in their paper “WHO Says Countries Should Be Self-Sufficient In (Unremunerated) Organs and Blood.” Roth is an affiliated scholar on the National Bureau of Economic Research and a professor of economics at Stanford University. He is the 2012 Nobel Prize winner in economics for his work on market design. Krawiec is the Charles O. Gregory Professor of Law at UVA; much of her work focuses on “taboo trades” — also the name of her podcast — such as blood and plasma, transplantable organs, and egg and sperm markets. . . .

How do current WHO policies on organ and blood donation contribute to this problem?

WHO policy mandates both national (or sometimes only regional) self-sufficiency and an absence of remuneration for both blood products and transplantable organs — what we refer to in the paper as “the twin principles.” These twin principles are unhelpful separately and unworkable together. Their effect on blood products is particularly stark — no country that fails to compensate donors is self-sufficient in plasma collection and few LMIC collect sufficient supplies of whole blood.

 

The self-sufficiency mandate presents a real hurdle to progress in transplantation, especially for smaller countries and LMIC. This is especially the case because some of the most exciting and promising developments for increasing the availability of transplants have been in kidney exchange, a mechanism that leverages in-kind exchange, rather than financial compensation, to encourage and facilitate donation among those with willing but incompatible partners. But kidney exchange works best when a large pool of patient-donor pairs can engage with one another. So, requiring that transplantation be contained within national boundaries unnecessarily limits access to transplants that could be achieved only by cross-border exchange.

. . .

How could countries and the WHO balance the need for increased organ and blood donations with the ethical concerns surrounding paying for them?

First and foremost, WHO and the world health community should be realistic and transparent about what is possible and, in particular, about the tension between self-sufficiency and nonremuneration. No country that fails to pay donors is self-sufficient in plasma. In fact, nonpaying countries are becoming increasingly dependent on paying countries for their plasma supply, and this trend is likely to accelerate in the coming years as new medical uses for PDMPs are discovered.

 

Second, countries should engage in, and WHO should encourage, international cooperation, rather than national self-sufficiency. Current WHO policy denies to health care many of the benefits that trade has brought to so many other human endeavors. Substances of human origin are special, but they are not so special that we prohibit plasma or organ donation. We should be open to exploring and experimenting with ways to bring to health care some of the benefits that trade has brought to so many other areas, including the production and distribution of food and lifesaving vaccines and other medicines.

 

Third, we must rely on evidence-based policies, rather than on decades-old assumptions and understandings. Modern testing capabilities and stringent regulations have ensured that the plasma supply is safe, whether collected from paid or unpaid donors. Despite protestations to the contrary, wealthy countries around the world that prohibit remuneration for plasma must know this, given that they import large quantities from the United States, which pays donors.

 

While the case for remuneration to providers of whole blood for transfusion (which undergoes less processing than plasma that is used for PDMPs) is less straightforward, nonetheless WHO should (cautiously) shift its approach here as well. Much of the research prompting concerns with paid blood donation is dated or relies on surveys and uncontrolled studies. More recent research on incentivizing blood donation finds that incentives increase blood donations, are cost-effective and do not compromise blood safety. Indeed, wealthy countries, including the United States, already compensate whole blood donors through non-cash incentives, such as gift cards and paid work leave, and have for some time.

 

Finally, the provision of incentives for organ donation is the most complicated and most ethically fraught. Clearly, caution is warranted. Nonetheless, countries, with WHO support, should use pilot studies and trials to test the ethics, safety and efficacy of incentives in various settings. Indeed, many countries, including the United States, already provide such incentives.

 

Read the whole thing here!

As Time Goes By

"As Time Goes By" is immediately recognizable from Dooley Wilson's 1942 performance in Casablanca, but Herman Hupfeld actually wrote it in 1931 for the forgettable Broadway musical Everybody's Welcome. It was first recorded by Rudy Vallee in 1931, and of course covered many times since then. The American Film Institute voted it the number two movie song of the twentieth century ("Over the Rainbow" was first).

CFP: State Constitutional Rights in the Modern Era (Georgia LRev)

This just in:

As the Symposium Editors for Volume 59 of Georgia Law Review, it is our pleasure to announce our annual symposium for the Spring of 2025: “A Nation of States: State Constitutional Rights in the Modern Era.” This year’s symposium will focus on recent developments in the individual rights guaranteed by state constitutions, the history of states’ constitutional rights, the interpretive methodologies for state constitutions, the comparison and relationship between state constitutions and the U.S. Constitution, and other similar topics. The symposium will include panels and a keynote address.

The symposium will be held in person at the University of Georgia School of Law in Athens, Georgia, on Friday March 21, 2025. Georgia Law Review will reimburse all reasonable symposium travel and lodging expenses associated with participation.

If you wish to participate, we invite you to email our editors a short description of your article’s idea or topic, a brief biographic statement, and any questions about your potential participation. We may accept topics that do not fit into one of the above-mentioned categories so long as they analyze state constitutional rights. Articles will be accepted on a rolling basis until the issue is filled. We will begin reviewing articles on Monday September 30, 2024. If accepted, we require an editable draft by Monday December 2, 2024. We prefer articles between 10,000 and 20,000 words, but we will consider all articles well outside of this range that fall under the topics listed above.

Thank you for your consideration. We hope you will join us in Athens for this exciting conversation in March 2025.

Kyle J. Hill, [email protected], (985) 768-8108

Suah Jang, [email protected], (201) 788-899

St. Mary's School of Law Seeks Faculty

This just in:

Summary: St. Mary’s University School of Law invites applications for three full-time Assistant, Associate, or full Professors of Practice to work in one or a combination of the following academic programs: the Legal Research, Analysis, and Writing Program, the Academic Excellence Program and Bar Success Program. All positions are nine-month, full-time, non-tenure track positions. At a minimum, Professors of Practice will be hired for a two-year contract with renewal for good performance at the end of that term. Salary for a nine-month contract will range from $70,000 to $89,000, commensurate with experience. Additional stipends may be available for those working with the Bar Success Program who work over the summer months.

Essential Duties and Responsibilities:

Successful Professors of Practice are team-oriented and collaborative, committed to excellence in teaching and academic support, and demonstrate passionate dedication to their students. These positions are student-facing and require a campus presence, except when teaching online classes. Successful candidates for these positions will teach in one or more of the following programs as determined by each candidate’s interests and expertise. 

 

Philosophy & Public Affairs New Editorial Team

I’m pleased to announce that I’ve joined the newly-formed Editorial Board of Philosophy & Public Affairs, “the highly regarded philosophy journal whose future was put in doubt when all of its editors and editorial board resigned en masse this past spring to form a new journal.” (Daily Nous). The new editorial team consists of:

 

Editor-in-Chief: Jason Brennan (McDonough School of Business, Georgetown)

Associate Editor: Christopher Freiman (Chambers College of Business, West Virginia University), David Lefkowitz (University of Richmond)

Editorial Board: Cristina Bicchieri (University of Pennsylvania) Emanuela Ceva (University of Geneva), Daniel Jacobson (University of Colorado), Matthew Kramer (Cambridge University), Kimberly Krawiec (University of Virginia School of Law), Jeffrey Moriarty (Bentley University), Christopher Heath Wellman (Washington University in St. Louis).

 

Given the circumstances of the prior board’s resignation, the new mission statement is worth sharing here:

Philosophy & Public Affairs publishes the best philosophical work that engages with matters of public concern. Since 1972, Philosophy & Public Affairs has published pathbreaking scholarship that has reshaped philosophical debates for decades to come. Continuing this tradition, the journal seeks papers that are bold, daring, and risk-taking. Philosophy & Public Affairs prizes papers that seek to change paradigms over papers that make minor moves in long debates. It seeks to avoid esoteric and scholastic papers in favor of accessible and engaging papers about topics that matter to non-specialists.

The journal welcomes submissions from philosophers, legal scholars, political scientists, economists, and sociologists. It welcomes papers on problems requiring empirical or legal analysis, provided those papers also rigorously defend a normative position.

All papers submitted to Philosophy & Public Affairs are blinded to editors. Papers that pass initial inspection undergo triple-blind review. The journal values viewpoint and ideological diversity; no preference will be given to papers that affirm editors’ political or moral commitments. The journal aims to provide a forum in which researchers with different perspectives can bring their distinctive methods to bear on problems that concern everyone.

The editorial staff retains complete autonomy from Wiley in determining which and how many papers to publish. Commercial considerations have no bearing on the decisions of the editorial staff. This editorial autonomy is protected by contract.

 

The decision will be seen as controversial by many, given that the prior editors have said they resigned over pressure from Wiley to publish, for commercial reasons, more articles than the editors believed passed their quality standards. One of those former members published a long statement of the events over at Crooked Timber, which you should read in full.  EIC, Jason Brennan, responds to some of that criticism here.

There is more coverage at Daily Nous, Crooked Timber, and Leiter Reports.

CFP: Penn State Dickinson Law Review Second Amendment Symposium

This just in:

The landscape of the Second Amendment has radically shifted post-New York State Rifle & Pistol Association v. Bruen. Every day, courts are holding that various long-standing firearms restrictions are unconstitutional. Yet, while the judicial system generally attempts to follow Bruen, state legislatures rapidly enact new restrictions that seem to conflict with Bruen. The battle over the Second Amendment has only gotten more intense since Bruen. While some courts have strictly applied Bruen, many would argue that in its most recent Second Amendment case, United States v. Rahimi, the Supreme Court itself failed to strictly apply Bruen by relying on analogical reasoning instead of “distinctively similar” historical regulations to address a “persistent societal problem.” Justice Thomas, who authored Bruen, pointed out this error, and his dismay was apparent in his Rahimi dissent. Still, others argue that Rahimi was not entirely in conflict with Bruen, and interpreted that the Court held that people can only be temporarily disarmed.

The Dickinson Law Review seeks to clarify these murky waters in Volume 129’s Symposium issue. To do so, we seek authors who are well-versed in the subject matter and wish to offer their perspectives on the future of the Second Amendment in a post-Bruen world.

We seek to solicit papers delineating the meets and bounds of the Second Amendment post-Bruen. In that vein, we aim to solicit papers that clarify:

• What are “arms” under the Second Amendment?
• What is the purpose of the Second Amendment?
• Who are “the people” under the Second Amendment?
• What are “infringements” on the Second Amendment?
• What gun control measures can be enacted without running afoul of the Second Amendment?
• How does the Second Amendment interact with rights?
• What impact does the Second Amendment have on different groups based on their race, ethnicity, gender, sex, or sexual identity?
• What remedies are available to victims of gun violence without violating the Second Amendment protections?
• What remedies would discourage state and local governments from continuing to pass laws designed to contravene the Court’s Second Amendment Jurisprudence?

The Symposium is scheduled for April 4, 2025, at Penn State Dickinson Law’s Carlisle location. There is no conference fee, and Penn State Dickinson Law will provide speakers with some funding for travel and accommodations. We are seeking both authors and speakers to present at our symposium.

To apply, please submit a proposal to [email protected] by 11:59 P.M. on October 23rd, 2024. We seek both essays (12,000 to 15,000 words including footnotes) and articles (15,000 to 30,000 words including footnotes). In your proposal, please include your name, title, a short summary of your proposed topic, and a brief statement of your background and/or reason for interest in participating in our symposium. Additionally, please indicate if you intend to write an essay or article, if known, and if you would be willing to travel to our symposium to participate in person.

Please address any questions to our Executive Symposium Editor, James V. Scaglione at [email protected]. Any questions that would be more appropriately answered by the faculty or administration should be addressed to our Faculty Symposium Advisor, Associate Dean Shaakirrah R. Sanders at [email protected].

CFP: The Governance, Law, and Regulation of the Body

This just in:

The Touro Law Center Journal of Race, Gender, and Ethnicity is pleased to issue this call for papers as part of its 2025 symposium, The Governance, Law, and Regulation of the Body. The symposium will be held entirely over Zoom on March 27, 2025. The Journal is seeking papers on a variety of topics that broadly focus on concerns regarding autonomy and the scope of individual agency as these issues pertain to our bodies, including but not limited to the following: reproductive rights post-Dobbs; state laws concerning gender-affirming care; racial disparities in the criminal justice system; carceral expansion in the context of immigration; the regulation of death; legal controls over human experimentation; medical racism; and more. Ultimately, we are interested in topics that focus on regulatory efforts by the state that impact the treatment of or control over our physical selves, as well as the circumstances under which those interventions should be promoted or constrained. The symposium aims to bring together practitioners, policy researchers, and scholars (legal and non-legal) to explore these issues.

Authors of selected papers will be invited to present at the symposium and will be invited to publish their work in Volume 14 of the JRGE, which is an online publication. To apply for the symposium, please submit an abstract of 250-500 words no later than November 4, 2024 at https://tourolawcenter.wufoo.com/forms/z6vpk8v0v9osxj/. Completed papers should be in the range of 5,000-7,500 words and would be due no later than June 16, 2025. Please send any questions to [email protected].

Taboo Trades Podcast: Families By Agreement with Brian Bix

My guest today is Brian Bix, the Frederick W. Thomas Professor of Law And Philosophy at the University of Minnesota School of Law. He teaches and writes in the areas of family law, contract law, and jurisprudence. He joins us today to discuss his 2023 book, Families by Agreement: Navigating Choice, Tradition, and Law, published by Cambridge University Press.

 

I really enjoyed this episode – it was both educational and entertaining. Brian is not only a productive scholar, but a generous one – note his discussion of other important scholars in the field during this episode, including Martha Fineman, June Carbone, Naomi Cahn, and Jody Madeira, among others.

 

Also interesting is the discussion with my UVA Law student co-hosts, Alexa Rothborth and Tanner Stewart. Alexa is the second donor-conceived co-host to moderate a discussion about gamete donors on the podcast. That Season 3 episode, with Mary Anne Case and co-hosted by Reidar Composano and Bryan Blaylock, is linked in the show notes below. Reidar was also donor-conceived, as he discusses in that episode roundtable.

 

 

Further Reading

• Bix Bio https://law.umn.edu/profiles/brian-bix
• Advanced Introduction to Contract Law and Theory (Edward Elgar Publishing, 2023)

Amazon UMN Libraries

• Families by Agreement: Navigating Choice, Tradition, and Law (Cambridge University Press, 2023)

Amazon UMN Libraries

• Jurisprudence: Theory and Context, (Sweet & Maxwell (UK), Carolina Academic Press (US), 1st ed., 1996; 2d ed., 1999; 3d ed., 2003; 4th ed., 2006; 5th ed., 2009; 6th ed., 2012; 7th ed., 2015; 8th ed., 2019; 9th ed., 2023; translated into Chinese (Law Press, 2007), Greek (Kritiki Publications, 2007), Spanish (Universidad Nacional Autonoma de Mexico, 2010), Italian (G. Giappichelli Editore, 2016), Portuguese (Tirant lo Blanch 2020), and Georgian (Varlam Cherkezishvili Institute, 2023)

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• Krawiec Bio https://www.law.virginia.edu/faculty/profile/kdk4q/1181653
• Donorsexuality with Mary Anne Case https://tabootrades.buzzsprout.com/1227113/episodes/11655810-donorsexuality-with-mary-anne-case