Author: Sarah Waldeck

1

“Been There, Done That” or “Reflections on the Estate Tax”

I read somewhere that certain magazines publish the same article about once every eighteen months. The text is never identical and there might be a new twist, but it’s pretty much the same old fare. (Think Modern Bride with the headline Pale Ivory This Year’s Color for Summer Brides.) And you really can’t even fault the magazines. Really, what is there to say about a wedding that hasn’t been said already?

This is how I’ve come to feel about the estate tax over the course of the last couple of weeks. The tax is back in the news because President Obama’s proposed budget announced that he would retain the tax with its current rate and exemption levels, rather than allowing the tax to expire in 2010. The House voted to retain the 2009 version of the tax, but the Senate has voted to lower the top rate from 45 to 35 percent and to increase the exemption from $3.5 million to $5 million (and thus from $7 million per couple to $10 million per couple).

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6

Breastfeeding Backlash

The American Academy of Pediatrics, the American Medical Association and other breastfeeding advocates should be very nervous. In the last two months, the Atlantic and the New Yorker have each published articles that are very different from the usual media fare about the benefits of breastfeeding. (You can read CoOp posts about Jill Lepore’s New Yorker piece here and here; Crooked Timber is the one of the sites with an excellent discussion thread about the Atlantic article.) In the New Yorker, Jill Lepore suggests that our zeal for breastfeeding has distracted us from the larger goal of ensuring that mothers are able to spend adequate time with their babies; instead we have become satisfied with policies that make it easier for women to pump milk. In the Atlantic, Hanna Rosin examines the medical literature that underlies the recommendation that women breastfeed. She concludes that while breastmilk is probably best, it is not the magical elixir that one might suspect based on popular accounts. Thus, Rosin argues, depending on a women’s individual circumstances and predilections, she can do a cost-benefit analysis and (more than) rationally conclude not to breastfeed.

“Breast is Best” campaigns have been most effective among educated white women with higher incomes; this is the demographic with the highest breastfeeding rates. It is also a demographic that reads both the New Yorker and the Atlantic. Among this group, a strong social norm affects the decision whether to breastfeed. Rosin aptly captures this dynamic:

One afternoon at the playground last summer, shortly after the birth of my third child, I made the mistake of idly musing about breast-feeding to a group of new mothers I’d just met. This time around, I said, I was considering cutting it off after a month or so. At this remark, the air of insta-friendship we had established cooled into an icy politeness, and the mothers shortly wandered away to chase little Emma or Liam onto the slide. Just to be perverse, over the next few weeks I tried this experiment again several more times. The reaction was always the same: circles were redrawn such that I ended up in the class of mom who, in a pinch, might feed her baby mashed-up Chicken McNuggets.

What remains to be seen is whether the New Yorker and Atlantic articles mark the beginning of a wider disenchantment with breastfeeding, one that will eventually erode the norm that Rosin so aptly documents. I also wonder whether the articles will influence what Rosin labels the “relentlessly cheerful tip culture” that dominates discussions of breastfeeding in popular media and in parenting books.

p.s. As an aside, I’ve always thought breastfeeding advocates should organize a public relations campaign around how breastfeeding, particularly long-term breastfeeding, can make easier for a woman to lose weight. Think of a big hot fudge sundae with the tag line “From you to your baby’s brain.” I guess there’s a reason I pursued law instead of marketing . . .

17

Law School Field Trips

This morning I accompanied a group of kindergarten students on their field trip to a planetarium. The whole experience left me musing about how at some point in one’s education the field trip just disappears. The quintessential field trip, which is undertaken despite the knowledge that some students will simply goof around on the bus, reflects the belief that even the uninterested are enriched by participating. But by high school, not to mention law school, the general enrichment trip is replaced with targeted opportunities for students with particular interests. (Think clinics and externships.)

So, here’s my question: if you were planning a series of field trips for 1Ls, where would you take them? I’d start with a tour of a prison, which would be bound to leave some sort of impression. I’d also like to arrange for each student to spend a full shift in a squad car, although I’m not sure how to pull that off for an entire first year class. (Also, the Estates and Trusts professor in me would like everyone near Philadelphia to visit the Barnes Foundation and see what all the fuss is about. That, however, may be a bit too targeted for my list, which is aimed at general legal enrichment.)

Suggestions, anyone?

25

My Laptop Ban

Ever since Eugene Volokh shared the results of his laptop experiment, the blogosphere has been talking more than usual about laptop bans. This is the second semester I’ve banned laptops and at this point I’d describe myself as a ban enthusiast. The reasons for this enthusiasm are nothing new: my class is more engaged, class room discussions have improved, and students are asking better questions. I also hadn’t realized how difficult it is to talk to the back of a laptop screen until I made everyone close them. On this point, I would echo Howard Wasserman: I’m a better teacher when I can actually see my students’ faces. Finally, I think that the process of note-taking on a laptop often short-circuits the learning process. Kevin Yamamoto has summarized some of the research on this point here. A couple of things, however, did catch me by surprise.

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6

The Grim Reaper

Yesterday’s New York Times had a disturbing article about how successful collection agents “trained in the five stages of grief” are in collecting the debts of the deceased. These agencies aren’t operating through the probate process. Instead, they are collecting from the deceased’s relatives, who have absolutely no legal obligation to pay the debt. It’s true that for some of these relatives, the amount of their inheritance would be reduced by whatever was owed to the creditor. It’s also true that some individuals may believe that they are honoring the memory of the deceased by settling all outstanding obligations. But,

[S]ome of those who pay a dead relative’s debts are unaware they may have no legal obligation.

Scott Weltman of Weltman, Weinberg & Reis, a Cleveland law firm that performs deceased collections, says that if family members ask, “we definitely tell them” they have no legal obligation to pay. “But is it disclosed upfront — ‘Mr. Smith, you definitely don’t owe the money’? It’s not that blunt.”

Well, it should be. And apparently I’m not the only one who thinks so. The Times article is currently number 1 on the “most-emailed “ list and many of the more than 200 reader comments are calling for regulation. You only have to read a couple of accounts of an unemployed son-in-law agreeing to assume credit card debt that is not his own or of a widow struggling to pay $5 a month before deciding that such regulation is already past due.

3

Distance Education

On Tuesday President Obama announced that by 2020 the United States will have the highest proportion of college graduates in the world. This admirable goal will be difficult to deliver. The National Center for Public Policy and Higher Education recently reported that college tuition and fees rose 439 percent between 1982 – 2007, while median family income rose only 147 percent. The Center’s president commented, “If we go on this way for another 25 years, we won’t have an affordable system of higher education.”

Something has got to give. Yesterday’s Times reported that some colleges are experimenting with three-year programs that enable students to save a year’s tuition. I’ve often thought that the number of freshmen who “go away to college” will shrink dramatically in coming years, because students will be forced to stay closer to home to avoid room and board fees. But something more dramatic will be required to really address the problem of runaway costs.

On-line or distance learning, which reduces labor costs and pretty much eliminates the need for a physical plant, is one way to tackle the problem. I’ve always had a hard time even contemplating on-line learning. But I’m beginning to suspect that this is a failure of imagination on my part.

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3

Milk

baby.jpg

Last week the New York Times had an article about the challenges of traveling for breast-feeding mothers. The piece is consistent with the patterns noted in a recent New Yorker, where Jill Lepore observed that companies are increasingly rated as mother-friendly solely because they accommodate breast pumping, instead of because they permit long maternity leaves or otherwise allow mothers to spend time with their babies. (Chimène Keitner blogged about the article here.) The Times article is mostly consistent with this pattern. It discusses, for example, how Ernst & Young provides free kits that enable traveling mothers to ship milk home. Much of the Times piece talked about the perils of getting milk through airport security, because individual Transportation Security Agents determine what constitutes the “reasonable quantity” of milk permitted under TSA rules.

There is a distinction between pumping milk while away from home and transporting milk home so that it can be consumed. Pumping milk while away is essential, both to relieve physical discomfort and to maintain the milk supply. Transporting the milk back home is not essential, at least not if you are willing to supplement breast-milk with formula. This point leads to two larger observations.

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17

Wayne Tompkins and the Innocence Project of Florida

Concurring Opinions receives many emails from individuals seeking to promote various issues and points of view. Such correspondence rarely results in actual posts. Today, however, we received an email from the Innocence Project of Florida, about an inmate scheduled to be executed at 6:00 p.m. today. I haven’t had a chance to do any independent investigation, but the content of the email is likely to interest many of our readers:

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5

Not Textbook Eminent Domain

Property professors spend so much time talking about regulatory takings and the post-Kelo definition of public use that it’s easy to forget about good old-fashioned eminent domain.

Here’s a scenario reported by the New York Times that is seemingly too straightforward to use on an exam. The National Park Service wants to build a park on the Pennsylvania site where Flight 93 crashed. The Park Service and a group representing Flight 93 families own or control approximately 1,300 of the 1,700 acres that the Park Service wants to acquire, and is in negotiations for roughly 430 acres, including the site where the plane actually crashed. Flight 93 families are eager for a transfer of the property because construction must begin by Fall 2009 for a memorial to be ready by the tenth anniversary of 9/11.

So just take the land, right? Not so fast. The 2002 legislation authorizing the memorial stated that no land could be acquired through eminent domain. (Perhaps because we value property rights more than extraordinary heroism which prevents a second terrorist attack on Washington, D.C.?) A provision in a September 2007 spending bill finally authorized the use of eminent domain, but the Park Service has continued to try to negotiate with the landowner. What a surprise that they can’t agree on a price.

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3

Yes We Can Go Digital

The New York Times is reporting that Obama’s transition team is urging Congress to delay the February 17 cutoff date for analog broadcasting. The team is particularly concerned that the federal coupon program which subsidizes the cost of converter boxes has temporarily run out of funds, and that the department responsible for distributing the coupons is about to be overwhelmed by requests. Some high-ranking Democrats and owners of major networks have indicated that they will support a delay.

Anyone feeling a bit of deja vu? Technology has existed since the 1980s that would allow terrestrial broadcasters to replace their analog signal with a digital one. Over the ensuing decades, the United States has been acutely interested in this switch, primarily because digital signal requires much less spectrum than analog. The liberated spectrum—or the freed-up public airwaves—can be auctioned off by the U.S. government, most likely for use in wireless telecommunications services. In 1997, Congress passed legislation that set an analog cutoff deadline of December 31, 2006. By mid-2005, however, less than 4 percent of households had TVs that were capable of receiving a digital signal. Then in February 2006, Congress acknowledged that the move to digital had floundered and passed new legislation that set a hard deadline of February 17, 2009. Or not so hard, apparently.

In an article soon be published in the Oregon Law Review, Professor Erik Lillquist and I use the attempted switch to digital to argue that our government, with its careful system of checks and balances, is ill-suited to legislate about rapidly-moving technologies. One reason is that the technology may be significantly less relevant by the time government actually acts. Another possibility is that the technology the government seeks to promote will remain important, so much so that it will eventually take off on its own without governmental intervention. In either case, government resources are better spent elsewhere.

Here another delay in the analog cutoff date may help guarantee that the government-engineered digital TV revolution is mostly irrelevant. For a while now, media outlets have been reporting that Americans are abandoning traditional television sets for programs that are streamed directly to their computers. The Consumers Electronic Show, taking place right now in Las Vegas, is featuring technology designed to facilitate the connection between the Web and TV screens.

Hindsight suggests that we may have been better off if the government had just stuck to its deadline back in 2006. Then, as now, there was particular concern that the population that relies on analog television is disproportionately poor, minority, or elderly. But Congress knew this when it tried to engineer the switch to digital. The government could just abandon its efforts and wait until traditional TV goes the way of the dodo. But with at least $1.3 billion in sunk subsidies already, Congress isn’t just going to give up. But regardless of whether Congress extends the deadline another two months or another two years, I bet that I’ll be able to write another post about how the United States is wringing its hands about whether now is finally the right moment to go digital.