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Author: Sarah Waldeck

11

My $140 Textbook

A recent article in the New York Times prompted me to make an inquiry at my law school bookstore: How much do the textbooks I’m using this semester actually cost? Now I have the answer: $139 for Dukeminier’s Wills, Trusts, and Estates and $142 for Dukeminier’s Property. A student who buys them used will save about $35 on each book.

It’s more than a little disturbing that I’ve never asked this question before, but perfectly consistent with what economists might predict:

Squint hard, and textbook publishers can look a lot like drug makers. They both make money from doing obvious good — healing, educating — and they both have customers who may be willing to sacrifice their last pennies to buy what these companies are selling.

It is that fact that can suddenly turn the good guys into bad guys, especially when the prices they charge are compared with generic drugs or ordinary books. A final similarity, in the words of R. Preston McAfee, an economics professor at Cal Tech, is that both textbook publishers and drug makers benefit from the problem of “moral hazards” — that is, the doctor who prescribes medication and the professor who requires a textbook don’t have to bear the cost and thus usually don’t think twice about it.

“The person who pays for the book, the parent or the student, doesn’t choose it,” he said. “There is this sort of creep. It’s always O.K. to add $5.”

Professor McAfee has published his introductory economics textbook on-line, where students can freely download it. Professor McAfee also is allowing two companies to sell printed copies of the book, with prices ranging from $11 – $60.

I have never written a textbook, so I cannot speak from first-hand experience. But whenever I talk with people who have, they say that they expect or have received an inconsequential financial return. Perhaps they have all been lying, because Professor McAfee reports he most likely would have received a $100,000 advance for his textbook. But let’s assume the authors I know are truthful, and that most economics texts are more lucrative than legal texts.

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2

Eager Heirs

Today’s New York Times has an excellent article about how important it is that parents share their estate plan with their adult children, particularly if the plan runs counter to expectations:

The day will come, or may have already, when your children think of your money as theirs.

In uncertain economic times like these, with the stock and housing markets down, credit markets tightening and widespread anxiety about the economic future taking hold, the subject of inheritance can be even more fraught for a family: parents may worry over the fate of their fortune, and children may feel the need to dip into it.

A parent’s instinct under such stress — to put off discussion until far in the future — can have its own set of costs. . . .

Succession is a natural progression, as old as the concept of private property, yet many parents never bother to tell their children about plans for their estate. . . .

Grown children who know their parents have assets typically expect the money to be left to them in equal shares, say lawyers, wealth advisers and psychologists with long experience in the legal, practical and emotional aspects of inheritance.

Parents, though, often have different plans, deciding that Morgan has enough; that Jack the spendthrift should receive an annuity; that Judy’s special needs after an accident require extra consideration; or even that the best gift is to leave the children little or nothing material.

Mitchell Gans, a law professor at Hofstra University in Hempstead, N.Y., who has helped develop some of the most complex estate plans in the country, recommends that in such cases you should prepare the will and then notify “the kids that you are cutting out — or who are getting less than the others.”

“If you have the courage to do that,” Professor Gans said, “you cut down significantly the chance of litigation after death.”

As an Estates and Trusts professor, I could make good use of a phrase that neatly sums up the unfortunate tendency to start thinking of your parents’ money as your own, even when said parents are still very much alive and kicking. Heirticipation is the best I’ve been able to come up with, but I hope some of you chime in with more inspired suggestions.

3

An Under-Theorized Component of Law School Hiring

It’s great to be back at Concurring Opinions, especially as a permanent contributor.

As several recent posts have already noted, the faculty hiring process is underway. My first reminder was last week, when I walked past a conference room and saw the Appointments Committee studying sheets from the FAR. Concurring Opinions has always been a great resource for job-seekers; you can find some of our advice here.

But back to the Appointments Committee. They are going to be busy in the upcoming weeks and some of that busyness will occur at the expense of other projects that are related to scholarship, teaching, or both. But most appointments committees don’t talk much about administrative work, and neither will the candidates they interview. This is true despite the lengthy list of potential administrative tasks: serving on the admissions or library or [you fill in the blank] committee, advising a law journal or the Woman’s Law Forum, directing a speciality institute, pitching in when a skills program needs an enhanced faculty presence, supervising externships, stepping up when an Associate Dean’s office is suddenly vacant. And so on. And so forth. And on. And on. Etc.

I want to make clear before the jump that I am NOT suggesting that talking about administrative work is a means of getting an offer. For that, follow the advice in the link above: appear to be an insightful and thoughtful person who will write and teach well. But you should nonetheless give some thought to administrative tasks, both to figure out where you would prefer to work and what you might want to do after you start there.

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0

What Men Will Do To Win

Christopher Wilson, a neurobiologist at Cornell, has recently offered an evolutionary explanation for why certain cultures developed the norm of male circumcision. In an article in Evolution and Human Behavior, Wilson describes circumcision as an “evolutionary challenge” because it “involves a dangerous and costly surgery.” Enter sperm competition theory, which predicts competition between males to fertilize a woman’s egg. Wilson points out that some cultures practice male genital cutting that is far more drastic than circumcision, and that undoubtedly decreases male fertility. As a review of Wilson’s article in The Economist describes:

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0

Antiques Roadshow

If you are looking for something in addition to the Supreme Court news, check out this New York Times article about an under-theorized aspect of estates and trust law: the pesky personal property that people would have preferred not to inherit, but still can’t quite bring themselves to throw away. The comments (195 as of this writing) are particularly rich, with all sorts of vignettes about the objects with which people find themselves stuck, painful conversations between siblings, and (of course) the wrongdoings of stepparents and half-siblings.

2

Northwestern’s Third Year

As reported at Above the Law and TaxProf, Northwestern has announced a program that allows its students to complete their legal degrees in two years instead of the usual three. Upon inspection, the two-year program is less revolutionary than it initially sounds. As described by Inside Higher Ed, the two-year program is an accelerated version of the usual fare, with students taking the same courses and credit hours as those in the three-year program.

The two-year option may have stolen the headlines, but what Northwestern announced about its third year is at least as interesting. Northwestern will allow students to spend a semester in full-time experiential programs, such as legal clinics and law firm apprenticeships. The move comes on the heels of the Carnegie Report, which urged law schools to incorporate a practical skills component wherever possible and to think creatively about the third year. Last March Washington and Lee responded by making all third-year courses experiential. While Northwestern has not gone this far, its experiential semester is likely to make its competitors follow suit. (Fear not, aspiring professors. Northwestern will have “research opportunities” available for you.)

P.S. The talk of practical skills reminded me of “reading the law,” or becoming a lawyer through apprenticeship, without ever going to law school. I had thought that reading the law was only of historical interest. But a little surfing revealed what many readers probably already know: four states still allow people to become lawyers after extended apprenticeships (provided they pass the bar exam). You can get the overview here.

18

Class Action Challenging Wisconsin’s Diploma Privilege

As every law school graduate from UW-Madison or Marquette knows, Wisconsin is the last state in the nation to still extend a diploma privilege. Simply put, if students at these schools take certain courses and attain a particular minimum grade in those courses, they can be admitted to practice law in Wisconsin without taking a bar exam.

The Associated Press is reporting that a federal judge in the Western District of Wisconsin has certified a class action challenging the diploma privilege. Anyone who applies to the Wisconsin bar within 30 days of graduating from law school can join the suit, which alleges that the diploma privilege is unconstitutional because it discriminates against out-of-state graduates.

I haven’t thought much about the constitutionality of the diploma privilege, but I have pondered the wisdom of Wisconsin’s policy. As a Madison grad, the issue for me has always been whether it is too easy to gain automatic admission; in other words, should the required minimum grades be higher than they are? I perceive bar exams as performing an important, albeit imperfect (and perhaps too lenient), screening function. Put succinctly, if a graduate can’t pass the bar in the maximum number of times that they are allowed to take it, the public would be better served by having that graduate in a different profession. But I don’t have any empirical data about whether the Wisconsin diploma privilege provides the same sort of screening as a bar exam. (For example, how many graduates in other jurisdictions never pass that jurisdiction’s exam? How many graduates of Madison and Marquette do not qualify for automatic admission?) I do, however, think that a student’s performance in a semester-long class is a more accurate measure of whether she is qualified to be a lawyer, provided that Wisconsin’s bar is set high enough. (Bad pun absolutely intended.)

I’d be interested in relevant data, if anyone knows it. And I’m sure those who are currently sitting in a bar review course have their own opinions about Wisconsin’s system.

2

Attention All Flatlanders, Fudgies, and Other-State Equivalents

dock.jpgThis post uses my guest stint to try to collect information for a project about the inheritance and management of family cottages. As the graphic suggests, at least my inquiries are seasonally-appropriate!

I began to think about family cottages in an academic way last summer. While browsing in a small resort town, I saw the local bookstore had more than 20 copies of a text entitled Saving the Family Cottage on its reserve shelf. When I commented on the book’s apparent popularity, the shopkeeper informed me that it was outselling the new Harry Potter. I was intrigued, but not surprised. In this place where visitors boast about the length of their family’s connection to the town, discussions about the fates of family cottages are popular pastimes.

Family cottages go by many names. They are called summer houses, or cabins, or referred to by their location: the lake, the Cape, up north, the shore. They are where families gather to vacation, often at the same time year after year; where grandchildren visit their grandparents; and where cousins play with cousins. As Professors Judith Huggins Balfe and Kenneth Huggins have explained, they are “‘family houses,’ sometimes more than the year-round home” and often “the places of our strongest memories, childhood and adult.” Some of these properties are grand and others are modest. Some are owned by wealthy families, others by families who could not afford them but for an investment made by an ancestor.

Notwithstanding its sentimental glory, the family cottage can be a source of tremendous angst about what will happen when its current owners die, or how the place is currently used and managed, or both. In the absence of more sophisticated estate planning, at some point these cottages are likely to be governed by the law of a tenancy in common. That is, the property is devised in equal shares to siblings, who may hold the cottage long enough to pass it on to their children, and so forth. My project explores the norms and traditions that govern these sorts of households, the role that property law plays, and what, if any, legal reforms should be made in this context.

So here’s my first request: if you are involved in a family cottage, tell me your story. How many generations has the property been in your family? How do you handle carrying costs, improvements, scheduling and use? Is your cottage governed by a tenancy-in-common or other legal arrangement? Is your arrangement rocky or smooth? Some first-rate sociology has been done in this area already, but I would like to supplement with some casual empiricism. So write a comment or send me an email at waldecsa@shu.edu. (One of the things I’ve been struck by while working on this project is how many people have a story to tell.)

Here’s my second request: if you are attorney who advises clients about family cottages, I’d be very interested in talking to you about the sort of advice you give and the legal vehicles you tend to favor. Please send me an email at waldecsa@shu.edu so that we can get in touch.

P.S. For the uninitiated, a “fudgie” is a person who vacations in northern Michigan. A “flatlander” is a tourist from Illinois. Sometimes (as here) these terms are used with affection, but usually they are not intended to be kind!

8

More On Endowments

Late last week Crooked Timber had a lively discussion about university endowments, prompted by my recent post here and Larry Solum’s response to it. Those who are interested in the topic should take a look at the discussion, as it partially mirrors the debate that is taking place more generally. I’ve been following Crooked Timber with interest, and here’s several points that have struck me:

* I’ll start with the observation I found most interesting: that some elite institutions have a mission that is as much (or even more) about research than about education. I agree that I need to emphasize this distinction more than I have to date. My proposal that an endowment per full-time student of $300,000 or more trigger less favorable tax treatment could penalize institutions whose primary output is research rather than education. Recall, however, that the most frequently proposed trigger is an absolute endowment value of $1 billion or more. Elite research universities tend to have endowments of this magnitude, so my proposal is not tougher on these institutions than the oft-suggested alternative. In fact, my proposed trigger would exempt some research-oriented universities that would otherwise be subject to new tax rules, such as Cornell and Columbia. The institutions most “negatively” affected by the $300,000 trigger are liberal arts colleges with endowments less than $1 billion and small student populations.

More important, however, is that a research-oriented mission actually strengthens calls for increased endowment spending. The sort of research taking place at America’s premier universities is designed to eventually lead to much social good: the easing of the global food crunch, the elimination of certain diseases, and so on, as well as the creation of knowledge more generally. Few science departments, for instance, are likely to argue that a dollar is better spent in the stock market than in their labs. The ability of researchers and scholars to make productive use of endowment funds seems almost endless, as do the potential gains from their work. This strikes me as a strong argument for elite research universities spending more of their endowments than they currently do.

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1

On Reading the Paper and Watching MSNBC (Or Perhaps Not)

I will confess to having spent (squandered?) way too much time following the race between Obama and Clinton—more hours than I prefer to count. I’m not even talking about the substance of it all, such as the merits of Obama’s healthcare plan as compared to Clinton’s. I mean the race itself: the endless discussions about the predilections of super-delegates; how voters were expected to break in certain states; what Bill Clinton had said or not said on a particular day. And I continued to closely follow the race long after the mathematicians and pundits assured me that Obama had it wrapped up. (Of course, the pundits keep talking too, but that’s a different issue.)

The whole endeavor has brought to mind a 1998 article called Folding the Times that George W. S. Trow published in the New Yorker. Usually I don’t find personal histories nearly as interesting as their authors seem to, but this one—about the relationship Trow’s father taught him to have with the newspaper—contained a lesson that has stuck with me, even though I seem unable to follow it. But I pass on Trow’s advice nonetheless, in preparation for the general election. (Because the article is almost 10 years old, some of its references are dated. You’ll still get the point.)

I read every work in the paper about Algeria, Ukraine, and Belarus; these are the underreported zones. You should get a sense of what is underreported and what is overreported. Overreported is Newt Gingrich. One tenth of one percent of what has been written about Newt would have done you just fine. You also need to read every word about Shanghai, Chinese billionaires, and the Russian mafia. Stories are boiling (or seem to be boiling) here. If you have a personal reason to take an interest in a Baby Bell reaching out to yet another media, sure, read it, but be aware that the deal will ravel or unravel, happen or not happen, be consummated or not consummated, be important or not important, and that you will just have read ten thousand words.

I read nothing about the Equal Rights Amendment during the time it was in the news, for instance. Either it was going to get to be an amendment or it wasn’t. There are a lot of stories like that: years in the making; infinite detail; you have no say in the outcome; it will happen or it won’t.

Do yourself a favor. Just wait to see if Al Gore is nominated. Wake up the day after the next Democratic convention and ask a friend, “Did Gore make it?” My guess is that he will have made it. Take the fifty-thousand word investment you were prepared to make on Gore’s election prospects and follow another story.

My goal? To follow Trow (in moderation) as the media shifts its coverage from Obama-Clinton to Obama-McCain.