Saturday, May 21, 2011
The Article is about "identity property," which it defines as property that is strongly linked to one’s sense of self and family and is valued by its holder primarily for what it represents. Identity property is often jointly inherited by siblings or other relatives, who take as tenants in common. Standard doctrine relies on familial bonds and the unilateral right of partition to mitigate the problem of bilateral monopoly and to foster cooperation in the management of the tenants’ common resource. The Article argues that, in the context of identity property, this standard account is wrong. Rather, because the law favors partition by sale, the exit of one tenant often means that the remaining co-tenants will be forced to sell the identity property. Because the remaining tenants perceive the property as non-fungible, the threat of exit is powerful enough to exacerbate the bilateral monopoly and decrease the likelihood of cooperation. The Article relies on the example of the family cottage to elucidate the meaning of "identity property" and examines the formal agreements that relatives who jointly own cottages make when they decide to opt out of the tenancy in common default rules. These formal agreements reveal a willingness to sacrifice the right of exit in order to increase the odds that co-tenants will continue to own the identity property. The Article argues that the law should heed the message of these formal agreements and adopt a more flexible approach to the inheritance of identity property, including the possibilities of temporal partition and facilitated agreement.
Friday, May 20, 2011
Thursday, May 19, 2011
Wednesday, May 18, 2011
Tuesday, May 17, 2011
Monday, May 16, 2011
Sunday, May 15, 2011
Susan Appleton (Wash. Univ. School of Law St. Louis) & Robert Pollak (Wash. Univ. Saint Louis Buss. School) have posted "Exploring the Connections between Adoption and IVF: Twibling Analyses" (95 Minn. L. Rev. Headnotes 60 (2011)) on SSRN. Here is the abstract:
This essay responds to Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, in which I. Glenn Cohen and Daniel L. Chen analyze what they describe as an arm-chair principle called “the substitution theory”–the claim that facilitating treatment for infertility, including subsidizing in vitro fertilization (IVF), decreases adoptions. Cohen and Chen venture well beyond the arm chair, closely interrogating the substitution theory both normatively and empirically and concluding, contrary to the substitution theory, that IVF subsidies do not decrease and might actually increase adoptions.
Returning to the arm chair, this Response offers two different perspectives. First, we use a family law lens to focus on important elements of Cohen and Chen’s analysis, both explicit and implicit, including adoption, IVF, genetic connections, reproductive autonomy, and gender. We show how these elements are shaped by the authors’ assumptions, prevailing legal principles, and our culture more generally. Next, we use an economic lens to reveal how mandated subsidies for IVF produce varied conduct, depending on the preferences and resources of those who would consider adoption and IVF. Approaching Cohen and Chen’s analysis from these two different vantage points demonstrates that arm-chair theorizing, properly done, can illuminate the relationship between IVF and adoption.