Author: Sarah Waldeck

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Probating Not-Wills

This semester I began using the just-released 8th edition of Dukeminier’s Wills, Trusts, and Estates.  Five weeks into the semester, I’m pleased with this latest revision, primarily because some chapters have been reorganized in ways that are much more consistent with how I actually teach the course, which means that the students spend less time hopping between cases.  One new note, however, has needled me into reconsidering the 1990 Uniform Probate Code, particularly as amended in 2008.

In the note, the casebook authors describe Stephanie Lester’s 2007 study of more than 120 Australian cases in which the court used the dispensing power, i.e., probated a document which had not been executed in compliance with the formalities because clear and convincing evidence showed that the decedent intended the document to be a will.   The casebook authors provide this summary of Lester’s work:  “[Lester] concluded that the dispensing power has continued to fare well—with one exception.  In a troubling number of cases, the court admitted a document to probate despite evidence that the document was not intended to be a will but for which there was good evidence of whom the decedent wanted to benefit.”  (For an American case of the same stripe, see In re Estate of Kuralt, where the court probated as a holographic codicil a letter stating that the ailing Kuralt would have a “lawyer visit the hospital to be sure you inherit the rest of the place in MT.”  (emphasis by Kuralt). 

My reaction to this trend is twofold: (1) if it is troubling, it’s not surprising, and (2) is it really troubling? Read More

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Symposium on Securities Regulation

Seton Hall Law School is hosting a symposium entitled Securities Regulation and the Global Economic Crisis: What Does the Future Hold? on Friday, October 30.  Speakers include Richard Painter from the University of Minnesota, Lisa Fairfax from George Washington, Chris Brummer from Georgetown, and Joan MacLeod Heminway from the University of Tennessee. 

You can find more details here.

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The Beginning of NALP’s End?

With 2Ls facing a notably dismal summer job market, I’m wondering whether NALP’s “general standards for the timing of offers and decisions” finally will implode. For 2L summer hiring, NALP states that firms with more than 40 lawyers “should leave . . . offers open for at least 45 days following the date of the offer letter or until December 30, whichever comes first.”  Second year students  “should not hold open more than five offers of employment at any one time.  For each offer received that places a candidate over the offer limit, the candidate should, within one week of receipt of the excess offer, release an offer. ”

This year the NALP standards will frustrate law firms and 2Ls alike.   First, consider the standards from the perspective of a prestigious-but-not-quite-as-prestigious law firm.  They know that their competitors higher up on the food chain will hire fewer 2Ls this year and that 2Ls know this as well.  If the prestigious-but-not-quite-as-prestigious law firm wanted to make a play for a top student, an exploding offer would be a darn good strategy.  Nothing like the worst economy since the Great Depression to make even stellar students appreciate a bird in hand. 

Of course, law schools might forbid a firm that violated the NALP standards from on-campus interviewing in future years.  Or law schools might look the other way, in part because schools promote themselves among prospective students by having a very long list of firms that interview on campus.  One can also imagine informal agreements not to abide by the NALP standards among  law firms in a particular region.   Only the best law schools could afford to ban them all. 

Now consider all of this from the prospective of a 2L who wants a job at, say, Cravath. In a different hiring year, she eventually would have received an offer from Cravath, although not in their first round.  This year, however, the job market is such that most of the  students who get first-round offers from Cravath never receive more than five offers, so they are able to hang onto their Cravath offers for the full 45 days.  Meanwhile, the 2L who is gunning for Cravath has to accept an offer from a different firm, because she has run up against her own 45 day deadline.   

One fair response to this last scenario is that in today’s market, no saavy student is going to hold on to an offer for 45 days; instead, the student will simply accept.  But that just highlights that NALP will become increasingly irrelevant as its standards continue to reflect what the 2L market used to look like, instead of what it looks like today.

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Criminal Law Treasure Trove

I’m passing on this link to a recent episode of This American Life.  It discusses the prosecution of Hermant Lakhani, who delivered what he thought was a missile to an FBI informant in Newark’s Gateway Hilton.  The episode is a must-listen for anyone interested in the prosecution of terror suspects, the entrapment defense, and juror deliberations. Co-Op readers from New Jersey might particularly appreciate the interview with gubernatorial candidate Christopher Christie, who was U.S. Attorney at the time (and is a Seton Hall Law alum).

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The Asterisk Next to Your Trusts & Estates Grade

After a summer where I encountered multiple media accounts about the off-label uses of  Adderrall and other ADHD drugs, I have a new appreciation for the conundrum of elite athletes and their fans.  Was that A+ Trusts and Estates exam just the result of pharmaceutical cognitive enhancement?  Is the student who seems particularly focused taking something?  Or (and this is worse) do the colleagues with whom I compete not share my fear of  sprouting antlers or dropping dead because of off-label use? Or (and immediacy makes this worse still) is Adderrall my route to having that paper done by the spring submission window?  If it is, what should I be considering?  That Jack Kerouac’s excessive use of Benzedrine, another mental stimulant, helped him write On the Road or that it eventually put him in the hospital with thrombophlebitis?

You can find good articles about Adderrall and other cognitive enhancers here, here and here.

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Introducing Guest Blogger Kathleen Boozang

090625-042_K_Boozang_7-09_retouched[1]Associate Dean and Professor Kathleen Boozang is a health law expert at Seton Hall Law School.  While much of her scholarly career has focused on nonprofit hospital governance issues, she has expanded her research and teaching more recently to explore the legal and policy issues related to the global pharmaceutical and medical device industries. Kathleen oversees Seton Hall’s Gibbons Institute of Law, Science and Technology, as well as its Center for Health & Pharmaceutical Law & Policy.  Her recent work at the Center includes a Whitepaper critiquing the practices employed by industry to promote their products to physicians, recommending, inter alia, a ban on industry gifts to physicians, and independence of continuing medical education from industry funding.

Kathleen’s most recent article is Monitoring Corporate Corruption: DOJ’s Use of Deferred Prosecution Agreements in Health Care, 35 Am. J. L. Med. 89 (2009) (with Simone Handler-Hutchinson).  Other particularly noteworthy pieces include Does Director Independence Improve Nonprofit Governance?, 75 Tenn.L Rev 83 (2007) and The Survival of Religious Hospitals in a World of Reformed Health Care, 31 Houston L. Rev. 1429 (1995).  Kathleen also blogs regularly at Health Reform Watch.

Kathleen graduated from Washington University School of Law in St. Louis, Mo. and received her L.L.M. from Yale Law School.

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Circumcision and HIV

Both The Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP) are considering whether to recommend routine infant male circumcision as a means of reducing the spread of HIV.  For me, the debate is a reminder of how the medical practice is deeply intertwined with societal norms.   One example illustrates the point:  American-born parents would dismiss as ridiculous (or worse) the suggestion that they cut off part of their infant daughter’s clitoris to help prevent HIV.

First, the science.  Clinical trials in Africa have found that circumcision reduces a heterosexual man’s risk of contracting HIV from an infected female by up to 60 percent.  It is unclear whether circumcision reduces the risk that a woman will contract HIV from an infected male and “little to no evidence” that it reduces the spread of HIV between homosexual male partners.  But if circumcision reduces the overall prevalence of HIV among heterosexual males, that might ultimately lower the risk among other populations, particularly women.   As for why circumcision status matters, most likely the foreskin tissue is more susceptible to HIV than other parts of the penis.   (You can read more about the science here.)

Circumcision opponents argue that at most circumcision reduces risk.   It does not prevent infection and no-one would suggest that circumcised males do not need condoms.    They further argue that HIV spread patterns are different in the United States than in the parts of Africa where the studies were conducted; that American and African health systems are worlds apart; and that  homosexual males are the individuals most at risk in the United States.   They can also point to studies which challenge or contradict the finding that circumcision reduces the risk of a heterosexual male contracting HIV from an infected female.  At present, however, opponents of circumcision appear to be losing the medical battle. 

All of this must be terribly frustrating for those who advocate non-circumcision.   First, they are well aware of the American medical establishment’s history of promoting circumcision as a means of combating a variety of conditions (my own favorites are the Victorian examples of bowleggedness and masturbation).   Second, in recent decades circumcision opponents have achieved some  partial victories.  The current AAP recommendations are neutral on the question whether to  circumcise infant males .  The national circumcision rate has fallen to less than 65 percent from a high of more than 80 percent, with rates far below 50 percent in a few Western states.   The cumulative result of many different policies that have the effect of discouraging circumcision—most notably, the refusal of many insurance companies to pay for the procedure—meant that non-circumcision may have been creeping, slowly, toward a tipping point.  Indeed, this post originally had a sentence about how a woman of my demographic (white, Midwestern) was statistically unlikely to ever have seen an uncircumcised penis.  But then I realized that I have seen some in recent years, in the locker room at my gym where many mothers dress their young sons.    Read More

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For-Profit Colleges

For-profit colleges such as Devry and Kaplan are coming under increased scrutiny by federal and state governments.  According to The Wall Street Journal, the Department of Education is considering changes that might result in students at for-profit colleges having less access to federal aid.  Meanwhile, Ohio’s governor and state legislature have agreed to eliminate the scholarships of 22,500 students attending for-profit colleges.  Next year New Jersey will reduce the aid of students at these colleges by almost 40 percent.  Read More

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Challenge to Wisconsin’s Diploma Privilege Continues

Yesterday the Seventh Circuit reversed the dismissal of the class action challenging Wisconsin’s diploma privilege as a violation of the commerce clause.  (I previously posted about the case here. ) A few thoughts about this latest development:

1.  I remain baffled about what benefit the plaintiffs (graduates of out-of-state law schools)  expect to receive from this suit.  They have asked for an injunctive order striking a few words from the Wisconsin Supreme Court rule on bar admission.  The result of this proposed edit is that Wisconsin would offer the diploma privilege to all graduates of ABA-accredited law schools.  But as Judge Posner pointed out in his opinion, the state could also remedy a commerce clause violation by requiring graduates of Wisconsin law schools to take the bar exam.  Does anyone really believe that Wisconsin would do anything other than what Judge Posner has suggested?  Talk about the potential for a quick race to the bottom!  Even if they are victorious, the plaintiffs will be in the same position as when they started:  they will have to take a bar exam to practice in Wisconsin (or practice in another state for five years).

2. Judge Posner referred to the diploma privilege as favoring the economic interests of Wisconsin law schools, because prospective students who want to practice in Wisconsin have an incentive to attend the University of Wisconsin-Madison or Marquette.  This is undoubtedly true in theory, but I wonder how many applicants this incentive actually yields.   First, how many people dream of practicing law in Wisconsin who don’t already have a connection to the state?  I suspect that most people who plan to practice in Wisconsin are already living there or grew up there and would like to return.  This would make an application to Madison or Marquette likely in any event (particularly an application to Madison, which offers an in-state tuition discount).   Second, prospective law students tend to be extraordinarily optimistic about their potential for academic success and, by extension, their ability to pass a bar exam.  The exam is also more than three years removed from the decision about where to attend law school.  While the diploma privilege may occasionally tip the scale, I suspect most applicants make their decision based on more immediate factors:  prestige, physical plant, cost,  location, etc.  I doubt that the diploma privilege attracts many additional applicants to Wisconsin law schools or discourages many applicants who would like to eventually practice in Wisconsin from attending an out-of-state school.

3.  As the case returns to the district court, the most important question is whether the state can prove that Madison and Marquette offer courses that teach Wisconsin law and are therefore different than courses offered at other ABA-approved law schools.  At oral argument, Judges Posner and Wood were quite skeptical that the state would be able to offer this proof.  (Gordon Smith, a former Madison professor, blogged about this here.)  While I cannot speak about Marquette or about the current state of affairs at Madison, I am confident that 12 years ago (when I was a law student) Madison would have been able to satisfy the court.  Were my antitrust or federal courts courses different than what was offered at other schools?  No.  But in the courses that were necessary to qualify for the diploma privilege, I learned a lot of Wisconsin law, even when my professors chose to use national textbooks instead of their own materials.  Gordon Smith wrote that the faculty at Madison have “an unusually strong attachment to the home state’s law.”  When I was a student, I would have described it a bit differently:  I thought the faculty perceived itself as having an obligation to teach Wisconsin law because it knew that students who remained in the state would not take the bar exam.

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Christmas in July

If you ever wanted a figure to illustrate the inefficiencies of gift-giving, here it is:  According to the Wall Street Journal, Americans annually spend about $65 billion in gift cards, of which $6.8 billion are never redeemed.