Wills Law on the Ground

Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. Yet the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents’ preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, the ademption by extinction doctrine, and the antilapse doctrine.

Prison Abolition and Grounded Justice

This Article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste. Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address—interpersonal violence, addiction, mental illness, and sexual abuse, among others. Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law—principally deterrence, incapacitation, rehabilitation, and retributive justice—might be pursued by means entirely apart from criminal law enforcement. Abandoning prison-backed punishment and punitive policing remains generally unfathomable. This Article argues that the general reluctance to engage seriously an abolitionist framework represents a failure of moral, legal, and political imagination. If abolition is understood to entail simply the immediate tearing down of all prison walls, then it is easy to dismiss abolition as unthinkable. But if abolition consists instead of an aspirational ethic and a framework of gradual decarceration, which entails a positive substitution of other regulatory forms for criminal regulation, then the inattention to abolition in criminal law scholarship and reformist discourse comes into focus as a more troubling absence. Although violent crime prevention and proportional punishment of wrongdoing purportedly justify imprisonment, this Article illuminates how the ends of criminal law might be accomplished in large measure through institutions aside from criminal law administration. More specifically, this Article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare. This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and “greening” urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement. By exploring prison abolition and grounded preventive justice in tandem, this Article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together.

Risk Regulation, Extraterritoriality, and Domicile: The Constitutionalization of American Choice of Law, 1850–1940

This Article examines the developments leading to the U.S. Supreme Court’s decisions in the 1930s that legitimated the extraterritorial application of state law in civil litigation. Today, these decisions are thought of as having established the basic constitutional limitations on choice-of-law rulings by state courts. But they are better understood as the culmination of an historical process in which the Court first proscribed the extraterritorial application of statutory rules of decision, and then, as the economic relevance of state boundaries receded and the regulatory function of state-created rules of decision increased in importance, emphatically retreated from that position. The 1930s decisions led to a new conception of choice of law in which a party’s domicile—in particular, the state’s power to apply its rules of decision to protect or regulate its own—came to play as important a role as the territorial locus of particular events in resolving conflicts of laws. This conception, which remains central to much of modern conflicts law, contrasts sharply with the Court’s unwillingness (reinforced by recent decisions) to take domiciliary interests into account when determining the constitutional limitations on personal jurisdiction.

Before the Civil War, the jurisprudence of conflict of laws did not, by and large, credit the possibility that the Constitution limited a court’s power to apply forum law to a dispute. Since the rules of decision applicable in antebellum private-law litigation were largely based on common law and other nonmunicipal sources of law, there was little occasion for invoking the Full Faith and Credit Clause as a limitation on state courts’ application of lex loci principles. The key development in altering this conception was the enactment, around 1850, of state statutes altering or creating rules of decision for certain kinds of civil litigation. These statutes—in particular, the wrongful death statutes and, later, the employers’ liability acts—were largely directed to the increasing risk of catastrophic injury and loss in an industrializing society. State courts confronting the multijurisdictional problems raised by these statutes concluded that they could not be applied extraterritorially—that is, to injuries incurred outside the forum.

The Supreme Court showed only occasional interest in the issue of extraterritoriality until some states began to enact regulations protecting local policyholders from forfeiture provisions in the life insurance policies issued by the major insurers in the Northeast. The Court in 1914 and 1918 struck down as unconstitutional the application by Missouri courts of the state’s protective statutes to insurance agreements deemed to have been made outside of Missouri. Thus a proscription of extraterritoriality, married to the then-prevailing doctrine of liberty of contract, briefly entered the law of the Constitution. These principles concerning extraterritoriality, based as they were on the formalist notion that only one state has regulatory authority over a given event or transaction, were eventually undermined by the widespread enactment of workers’ compensation laws. In the three 1930s cases considering the legitimate scope of such compensation statutes, Justice Stone (building on earlier opinions authored by Justice Brandeis) decisively affirmed the authority of a state to apply its workers’ compensation statute to injuries suffered outside the state. At a stroke, these decisions interred the idea that only one state has regulatory authority over a given event or transaction; eliminated the relevance of extraterritoriality as a touchstone for constitutional analysis of state courts’ authority to apply forum law in civil lawsuits; and provided crucial support for an emerging model of conflict of laws in which state interests—most notably, a concern for state domiciliaries—supplanted territoriality per se as the principal consideration.

Faith-Based Intellectual Property

The traditional justification for intellectual property (IP) rights has been utilitarian. We grant exclusive rights because we think the world will be a better place as a result. But what evidence we have doesn’t fully justify IP rights in their current form. Rather than following the evidence and questioning strong IP rights, more and more scholars have begun to retreat from evidence toward what I call faith-based IP, justifying IP as a moral end in itself rather than on the basis of how it affects the world. I argue that these moral claims are ultimately unpersuasive and a step backward in a rational society.

A Critique of the Secular Exceptions Approach to Religious Exemptions

Many scholars, some lower courts, and at least one Supreme Court justice support the idea that if a law contains secular exceptions, the Free Exercise Clause compels similar religious exemptions from the law. They argue, for instance, that if a police department with a no-beards policy allows exceptions for medical reasons, it must also allow those who wish to grow their beards for religious reasons to do so.

This Comment rejects the secular exceptions approach to religious exemptions. First, it argues that the secular exceptions principle is inconsistent with current First Amendment doctrine. In Employment Division v. Smith, the Supreme Court essentially eliminated religious exemptions from neutral laws of general applicability. Since laws with secular exceptions can be both neutral and generally applicable, the secular exceptions principle grants religious exemptions more broadly than Smith allows.

Even if the secular exceptions principle were consistent with Smith, courts should not adopt it as the constitutional rule. Under the secular exceptions principle, secular exceptions that undermine a law’s general interest make a law underinclusive and therefore not generally applicable. The lack of general applicability triggers strict scrutiny, so the court must grant the religious exemption unless the law is narrowly tailored to a compelling government interest. But because the law was already found to be underinclusive, it is not narrowly tailored to the interest, and so it necessarily fails the strict scrutiny test.

Since nearly all laws contain exceptions, this problem would lead to religious exemptions from some of the country’s most important laws—antidiscrimination laws, tax laws, and drug laws, to name a few. That outcome has never been and cannot be the correct understanding of the Free Exercise Clause.

Restoring the Fifteenth Amendment: The Constitutional Right to an Undiluted Vote

In 1965, Congress enacted the Voting Rights Act (VRA) to enforce the Fifteenth Amendment of the U.S. Constitution. Specifically, Section 2 of the VRA, as originally adopted in 1965, closely tracked the language of the Fifteenth Amendment and prohibited voting practices that denied or abridged the right to vote on account of race or color. But in 1980, the U.S. Supreme Court’s decision in City of Mobile v. Bolden complicated the parallel relationship between Section 2 and the Fifteenth Amendment by imposing an intent standard on vote dilution claims brought under the Fifteenth Amendment. Since Section 2 and the Fifteenth Amendment were treated as coextensive, the Court also imposed the intent requirement on Section 2 claims. In response to the Mobile decision, Congress amended Section 2 and instituted a discriminatory effects test. An unfortunate consequence of the Section 2 amendment, however, was that it created a profound divergence between the statutory and constitutional standards for vote dilution claims. Congress established a private cause of action under Section 2 that would extend the Fifteenth Amendment’s reach. In doing so, Section 2’s broader effects standard rendered the Fifteenth Amendment futile.

The disappearance of the Fifteenth Amendment in modern voting rights jurisprudence has proven particularly problematic in vote dilution cases that arise today. Rather than honoring the Fifteenth Amendment’s robust protections of minority voting rights, the Court has relied heavily on narrow equal protection principles that often produce absurd results. Using the Court’s most recent voting rights decision, Shelby County v. Holder, as a framework, this Comment explores the Fifteenth Amendment’s role (or lack thereof) in the modern landscape of vote dilution claims. This Comment further advocates for a restoration of the Fifteenth Amendment in future voting rights cases because the Court’s current reliance on equal protection principles compromises the VRA’s original vision and purpose.