PropertyProf Blog

McLaughlin and Weeks on Conservation Easements and Charitable Trust Doctrine

Nancy A. McLaughlin (Utah) and W. William Weeks (Indiana-Bloomington) have posted Hicks v. Dowd, Conservation Easements, and the Charitable Trust Doctrine: Setting the Record Straight on SSRN.  Here's the abstract:

This is the fourth in an exchange of articles published by the Wyoming Law Review discussing the application of charitable trust principles to conservation easements conveyed as charitable gifts. In 2002, Johnson County, Wyoming, attempted to terminate a perpetual conservation easement that had been conveyed to the County as a tax-deductible charitable gift. The County’s actions were challenged, first in a suit brought by a resident of the County, Hicks v. Dowd, and then in a suit brought by the Wyoming Attorney General, Salzburg v. Dowd. This article supports the position taken by the Wyoming Attorney General – that conservation easements conveyed as charitable gifts for the purpose of protecting the conservation values of the land they encumber in perpetuity constitute restricted charitable gifts or charitable trusts and, thus, such easements cannot be terminated without court approval obtained in a cy pres or similar equitable proceeding. For readers who do not have easy access to court documents in Wyoming, this article includes the relevant portion of the Motion for Summary Judgment filed by the Wyoming Attorney General in Salzburg v. Dowd as Appendix A.

Ben Barros

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Dorfman on Private Ownership

Avihay Dorfman (Tel Aviv) has posted Private Ownership on SSRN.  Here's the abstract:

The most powerful response to the growing skepticism about the intelligibility of the idea of private ownership has been cast in terms of owners’ rights to the exclusive use of an object. In these pages, I argue that this response suffers from three basic deficiencies, rather than merely explanatory gaps, that render it unable to overcome the spectre of skepticism. These deficiencies reflect a shared want of attention to the normative relationship that ownership engenders between owners and non-owners. In place of the right to exclusive use, I set out to develop an account of private ownership that seeks to defeat skepticism concerning this idea. The proposed account insists that the idea of private ownership picks out a special authority relation between an owner and a non-owner involving the normative standing of the latter in relation to an object owned by the former. I further demonstrate the important place of this idea in shaping the contours of normative disagreements about the point of ownership rights and responsibilities.

Ben Barros

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Nolon and Salkin on Land Use Law and Pedagogy

John R. Nolon (Pace) and Patricia Salkin (Albany) have posted Practically Grounded: Convergence of Land Use Law Pedagogy and Best Practices on SSRN.  Here's the abstract:

The changing dynamics in the field of land use and sustainable community development law demand that land use law professors rethink the way in which we prepare law students to practice law in this area. This needed paradigm shift converges with the growing momentum of the best practices movement which urges law schools to dramatically revise the curricular approach to legal education, arguing that traditional models are no longer effectively serving the goal of producing competent and fully prepared new lawyers. A perfect storm is present and a unique opportunity exists through the application of many “best practices” concepts for land use law faculty to lead the academy in reinventing curriculum and teaching strategies to better prepare students for the practice of law. A brief history of the best practices movement is described in Part II, as well as an assertion as to why land use should be the “poster child” for best practices. Part III reports on an empirical survey of land use law professors conducted by the authors in 2008 that examines, among other things, the opportunities to apply best practices to the subject of land use law. It also offers additional innovative examples of teaching methods that can be effectively utilized within the confines of the traditional classroom, using the land use law course as a model, as well as an example of how the land use law course can be used across the curriculum as a best practices capstone experience. The article concludes in Part IV with the observation that the shortcomings of the traditional casebook approaches to teaching land use within the four walls of the classroom can be easily converted into exciting opportunities that engage student learners, stretch the limits of student creativity, continue to instill and refine a sense of professionalism in law students and, consistent with the findings and recommendations of the Best Practices report and related literature, prepare students to be more effective lawyers when they graduate.

Ben Barros

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Meteorite Law?

Talk about property law questions ripped from the headlines!  The Washington Post has the latest on a dispute between the landlord of a physicians' office in Lorton and the physicians over the ownership of a meteorite that crashed into the physicians' office recently.

Alfred Brophy

Babie on Climate Change and Property

Paul T. Babie (University of Adelaide) has posted Climate Change and the Concept of Private Property on SSRN.  Here's the abstract:

This essay argues that the dominant liberal conception of private property, implemented and operating in legal systems worldwide, permits power - or choice - over the use and control of goods and resources so as to prioritise self-interest over obligation towards the community, both local and global. This, in turn, is one of the components of modern social life making possible the complex processes that produce both anthropogenic climate change and its consequences for humanity.

Ben Barros

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Tekle on Sex Offender Covenants

Asmara M. Tekle (Thurgood Marshall) has posted Safe: Restrictive Covenants and the Next Wave of Sex Offender Legislation on SSRN.  Here's the abstract:

This Article examines the emerging phenomenon and implications of sex offender covenants, the latest wave of sex offender legislation, under common law property rules such as touch and concern and the doctrine prohibiting restraints against alienation. The paper theorizes that courts use common law property rules to strike down personal “who” covenants, such as those based on race, age, disability, and often permanently debilitating sex offender status, that run afoul of public policy norms – most particularly, the wide availability of safe and decent housing for all.

The Article analogizes blanket sex offender covenants to their racially restrictive progenitors, arguing that both types of covenants are based on unsubstantiated fears that one population would sexually terrorize another. The modern-day fear is that convicted sex offenders will sexually prey upon children, whereas the underlying fear in the era of racial segregation was that black men, this country’s original sexual predators, would sexually prey upon infantilized white women. Finally, this Article looks to the sordid history of racial segregation for lessons and solutions to the modern-day problem of convicted sex offenders.

Ben Barros

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Kelo, the Meaning of "Public Use," and Beyond

A recent decision from the United States District Court for the Western District of Pennsylvania presents some interesting issues about the law of eminent domain.  In Whittaker v. County of Lawrence, 2009 WL 4744392 (Dec. 7, 2009), the plaintiffs challenged the condemnation of their parcels in connection with a proposed redevelopment project.  Specifically, the plaintiffs argued that the project – a 500-acre industrial park – was not a public use under the Takings Clause.  The district court rejected that argument, concluding that a local government’s economic revitalization efforts were “undoubtedly” public.

So far, all of this sounds familiar and in keeping with the Supreme Court’s decision in Kelo v. City of New London.  But here’s the twist – unlike Kelo, where the state courts interpreted the state statutes as allowing the economic development taking at issue, the state law here (as construed by the state courts) affirmatively declared that this type of use was not “public” for purposes of the eminent domain power.  Acknowledging this fact, the district court nonetheless held that the use was public for purposes of the Fifth Amendment.  Here’s the central portion of the opinion (omitting citations):

States are undoubtedly free to create “public use” standards that are more demanding than that contained in the Fifth Amendment.  Indeed, subsequent to the Supreme Court’s decision in Kelo, the Pennsylvania Legislature passed legislation generally prohibiting the use of eminent domain power for the purpose of facilitating “private enterprise.”  It does not follow, however, that actions taken in contravention of such state proscriptions are likewise taken in contravention of the Public Use Clause.  The content of the Public Use Clause does not “vary from place to place and from time to time.”  The “public use” requirement is “coterminous with the scope of a sovereign’s police powers.”  It does not change based on how a particular sovereign chooses to use (or not use) its police powers.  As far as the United States Constitution is concerned, a “public use” in Connecticut is a “public use” in Pennsylvania.  The Plaintiffs attempt to convert state statutory standards into federal constitutional requirements, “[b]ut constitutional law does not work that way.”

Whittaker, 2009 WL 4744392, at *18.

This is an interesting development, and one that I have wondered about since the Kelo decision came down.  Even though Justice Stevens’ majority opinion in Kelo admitted that states were free to impose stricter “public use” requirements than that announced by the Court, it also stated that the Court’s authority “extend[ed] only to determining whether the City’s proposed condemnations [were] for a ‘public use’ within the meaning of the Fifth Amendment to the Federal Constitution.”  Kelo, 545 U.S. at 489-90.  The district court in Whittaker apparently took this last statement to heart.

One potential ramification of the reasoning used in Whittaker could be that property owners increasingly look to state courts and state law claims (either constitutional or statutory) for relief from proposed condemnations of their properties, rather than proceeding under the Takings Clause.  But apart from that, there is another possible ramification:  If “public use” under the Takings Clause is a matter of federal law that is defined uniformly regardless of any state pronouncements, then one might also argue that “property” under the Takings Clause is equally a federal question subject to uniform definition.  In other words, perhaps there is some normative constitutional baseline that qualifies as “property,” beyond which the states cannot regulate without providing just compensation (regardless of their ability to regulate or define property interests in the first instance).

This latter argument has significant federalism implications, especially with regard to the question of judicial takings currently before the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection (about which Ben excellently blogged here and here).  If “property” as defined in the Takings Clause means the same in Connecticut as it does in Pennsylvania (to paraphrase Whittaker), then perhaps it becomes easier for a federal court to say that a state court decision has taken that “property” irrespective of the state’s ability to change or define property rights as a matter of state law.

Mike Kent

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Mike Leach, Texas Tech, and Property Interests

As an ardent fan of college football, I have followed with some interest the events surrounding Mike Leach’s firing as the head football coach at Texas Tech University.  Moreover, as a law teacher, I am always interested in ways to communicate legal principles through the medium of current events.  Over at ContractsProf Blog, Jeremy Telman (Valparaiso) has a good post providing the basics of the case.  I would point out here that the controversy has a property law connection, as well.  Leach’s suit against Texas Tech alleges that he had a property interest in continued employment with the university, of which the university allegedly deprived him without due process and which it allegedly took without providing him just compensation.  This could provide some interesting class discussion about how property interests are created, defined, and enforced.

Mike Kent

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Green on Tort Liability to Trespassers

Over at the TortsProf Blog, Mike Green (Wake Forest) has an interesting post on propertyowner liability to trespassers and the proposed language of the draft Restatement (Third) of Torts on the subject.

Ben Barros

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Rizzolli on the Law & Economics of Building Encroachments

The latest issue of the Review of Law & Economics has an article by Matteo Rizzolli (University of Milan - Bicocca) titled Building Encroachments.  Here's the abstract:

Property law usually addresses encroachments with ejectment. Building encroachments differ, however, as restoring a landowner’s property claims implies the reversal of often large costs sustained by the builder. The authority thus confronts the following dilemma: either it stands by the landowner, thereby facing the social costs of undoing significant investments and possibly supporting an opportunistic landowner that tries to hold up the builder, or it defends the investment of the builder thereby endorsing a kind of private eminent domain. In addressing building encroachments, national property laws have deployed different remedies ranging from a property rule in favor of the landowner to a property rule in favor of the builder with a variety of liability rules, often hybridized with property rules, in between. This paper models the builder-owner conflict after the theory of optional law (Ayres, 2005); it frames different national solutions into a common analytical setting; and it evaluates the different laws in their relative allocative and distributive outcomes and their capacity to constrain opportunistic behavior.

Ben Barros

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Rosser on Reservation Resources

Ezra Rosser (American U.) has posted Ahistorical Indians and Reservation Resources on SSRN.  Here's the abstract:

This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.

Ben Barros

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Atticus Finch: Friend or Foe?

The year 2010 marks the fiftieth anniversary of the publication of To Kill a Mockingbird.  Of course, this novel has been very influential both inside and outside the legal profession, and it was again the subject of headlines a few months back.  Many readers will recall that, last August, Malcolm Gladwell published an article in the New Yorker critical of the central hero in the book -- lawyer Atticus Finch.  Given Finch's iconic status, several writers quickly rose to his defense (see here, for example).  Others suggested that Gladwell's criticism did not go far enough.

I am happy to report that my colleague at John Marshall, Lance McMillian, has entered the fray with his new article, Atticus Finch as Racial Accommodator:  Answering Malcolm Gladwell's Critique, which he recently posted on SSRN.  Here's the abstract:

Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

I think these discussions of Finch raise interesting and important questions about our role as lawyers, and the role models we choose.  And it's worth pointing out that there is a tenuous connection to property law here.  Finch's fictional law practice included property matters, and the most notable case in which he was engaged in the book (aside from the criminal trial of Tom Robinson) was helping Walter Cunningham overcome issues arising from an entailed estate.

Mike Kent

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Home Sales and Fraudulent Concealment

I currently am teaching a brief unit on real estate transactions in my Property course, and tonight we are covering disclosure and fraudulent concealment.  As luck would have it, a recent article in the Wall Street Journal discusses this exact issue.  The article indicates that disclosure issues have taken on added significance in the current housing market because buyers cannot expect increasing home values to help them recover from mistakes made in the initial purchase.  Additionally, the article suggests that faulty disclosures may result not just from lying on the part of sellers, but also from the complexity of the disclosure requirements themselves.

Mike Kent

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Mossoff on Epstein and Patent Conveyances

Adam Mossoff (George Mason) has posted A Simple Conveyance Rule for Complex Innovation on SSRN.  Here's the abstract:

This article, written for the Eighth Annual Legal Scholarship Symposium celebrating the work of Richard A. Epstein, assesses Epstein’s advocacy of a default rule for patent conveyances. The article first explains how nineteenth-century patent doctrine supports Epstein’s argument for a conveyance default rule, detailing how early courts adopted for patents the same conveyance default rule they applied to real property. In real property, the default rule provides that, barring words of limitation or restrictive covenants, a conveyance transfers the entire estate, i.e. fee simple. Since patents are property rights – early courts often analogized patents to real property – a similar rule was adopted for patent conveyances. This historical case law confirms Epstein’s critique of the recent decision in Quanta Computers v. LG Electronics as unprecedented “formalism,” because the Quanta Court adopted a mandatory rule that all conveyances as such exhaust all property rights in patents. In shifting from a default rule to a mandatory rule, Quanta undermines the rights of patentees to use and dispose of their property.

The article then discusses some potentially costly complications arising from Epstein’s support for rule-of-reason antitrust review of patent conveyances. The virtue of the conveyance default rule, according to Epstein, is that it is a simple matter of administration. These gains in low administration costs, however, may be lost given the inherent complexity in the ex post application of rule-of-reason antitrust standards to innovative commercialization of inventions. The inherent unpredictability and indeterminacy in such contextual assessments threaten the dynamic efficiencies achieved by the patent system. This is especially salient when rule-of-reason standards require unsophisticated courts to predict and to regulate new, innovative commercial practices arising from inventions. This counsels against antitrust review of patent conveyances, even in Epstein’s second-best world of simple rules for complex innovation.

Ben Barros

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Turnbull & Salvino on Eminent Domain and the Size of Government

Geoffrey K. Turnbull (Georgia State - Economics ) and Robert F. Salvino (Coastal Carolina - Economics) recently published their article, "Do Broader Eminent Domain Powers Increase Government Size?" in the Review of Law & Economics.  Here's the abstract:

The 2005 U.S. Supreme Court decision Kelo v. New London allows using eminent domain to transfer property from one private party to another when it serves a broadly defined public purpose such as economic development. This paper examines the effect of this doctrine on the size of state and local governments. In the leviathan model, constitutional constraints are needed to control government expansion. The Kelo decision removes one such constitutional constraint on how state and local governments gain command over privately owned resources. The empirical results show that the breadth of eminent domain power affects the size of the public sector; states that explicitly empower their local governments to use eminent domain for private economic development have larger state and local public sectors than those that do not.

Mike Kent

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Houston Symposium on Climate Change, Water, and Adaptive Law

The University of Houston Law Center and the Environmental & Energy Law & Policy Journal are pleased to announce a Symposium on Climate Change, Water, and Adaptive Law to be held on Friday, February 26, 2010, from 8:00 a.m. to 5:00 p.m. at the Czech Center Museum, 4920 San Jacinto, Houston, Texas 77004.  Leading experts from diverse universities, disciplines, professional backgrounds, and policy making roles will address how law and the legal system need to adapt to address the impacts of climate change on water resources and regimes, and the extent to which it can.

Speakers include:

Panel on State and Local Adaptation to Climate Change’s Impacts on Water:

1. Robin Kundis Craig, Attorneys’ Title Professor and Associate Dean for Environmental Programs, Florida State University College of Law (Opening Presentation of the Symposium)

2. Noah Hall, Assistant Professor of Law, Wayne State University Law School; Visiting Professor, University of Michigan Law School; Executive Director, Great Lakes Environmental Law Center

3. Craig Anthony (Tony) Arnold, Boehl Chair in Property & Land Use, Professor of Law, Affiliated Professor of Urban Planning, Chair of the Center for Land Use & Environmental Responsibility, University of Louisville; Symposium Visiting Professor, University of Houston Law Center

4. Kathleen Miller, Scientist III, Institute for the Study of Society and the Environment, National Center for Atmospheric Research

5. Daniella Landers, Shareholder, The Sutherland Law Firm, Houston, TX

Luncheon Keynote Speech:  The Hon. Eliot Shapleigh (D-El Paso), Texas State Senate

Panel on Energy, Climate Change, and Water: The Complex Intersection

1. A. Dan Tarlock, Distinguished Professor of Law and Director of the Program in Environmental and Energy Law, Chicago-Kent College of Law, Illinois Institute of Technology

2. Lea-Rachel Kosnik, Assistant Professor of Economics, University of Missouri-St. Louis; Dispute Resolution Panel Member for Federal Hydropower Dam Relicenses, Federal Energy Regulatory Commission

3. Amy Hardberger, Attorney, Environmental Defense Fund, Austin, TX

4. Elizabeth Burleson, Assistant Professor of Law, University of South Dakota School of Law; Consultant, United Nations

5. Scott Deatherage, Partner, Environmental Law Section, & Practice Group Leader, Climate Change & Renewable Energy Practice Group, Thomspon & Knight, LLP, Dallas, TX

Symposium Description: "Water use and climate change share a complex, dynamic, multiscalar interdependence.  Water use contributes to climate change in the energy used to transfer water substantial distances, the destruction of carbon-sequestering vegetation and erosion of soils (and the subsequent release of greenhouse gases into the atmosphere) from too much or too little water, and the facilitation of sprawling (and arguably unsustainable) development, among other relationships. Hydropower has been suggested as an alternative energy source that reduces emission of greenhouse gases, but poses a variety of other ecological and social concerns.  Perhaps most importantly, climate change will affect water supplies and watersheds, contributing to water scarcity, rising sea levels, saltwater intrusion into groundwater, more severe storm-event cycles that alter watershed hydrology, and changes to riparian vegetation and stream structures that similarly alter watershed functioning and composition.  This symposium will address the capacity of water law to adapt to the changing, uncertain, and potentially extreme demands and stresses that climate change -- and our responses to climate change -- will put on water resources."

For more inhttp://www.law.uh.edu/eelpj/symposium.html, or contact Chief Symposium Editor/Director - Lisa Baiocchi-Mooney, [email protected].  The Symposium will offer 8 hours of CLE credit for the State of Texas.

Property, Government, and Florida's Amendment 4

Spring semester begins this week at Stetson, where I am teaching both Real Property II and Local Government Law.  In looking over my course materials for these classes, I was reminded of something that often comes up in my own research – the close relationship between theories of property and theories of government.  For example, a liberal view of property that emphasizes individual rights and choices will clearly have implications about the role of government, the nature of government power, and where that power should reside.  Likewise, a more communitarian view of property often will lead to very different conclusions about these same questions.

A current political battle here in Florida over a proposed constitutional amendment provides a practical illustration.  Amendment 4, if enacted by the voters this coming November, would require that any local government desiring to adopt or amend a comprehensive land use plan first submit that plan or amendment to a voter referendum.  Proponents of the amendment argue that it is necessary to curb unplanned growth, preserve quality of life, and ensure that growth occurs in accordance with community consensus.  Opponents respond that the measure would harm individual property owners, slow down economic growth, and result in costly political campaigns and litigation.

This skirmish obviously raises questions about how property should be used and who should get to make that decision.  But, on a deeper level, it forces one to think about what property is, what functions it should serve, who should receive its benefits, and how it relates to individual and community identities.  Also at work are questions about the design of governmental institutions, the advantages and disadvantages of participatory democracy, and the provision of government services (such as land use regulation).  The way in which one answers the “property” questions will inevitably influence one’s answers to the “government” questions, and vice versa.

I’m a fan of showing students how theory works itself out practically in the “real-world,” and it’s always nice to see interesting examples close to home, especially when those examples cover multiple subject areas.

Mike Kent

P.S.  A big thanks to Ben for allowing me the opportunity to do some guest blogging here at PropertyProf.  I'm really looking forward to it!

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Michael Kent Guest Blogging

I'm pleased to announce that Michael Kent (John Marshall/Atlanta, visiting this year at Stetson) will be guest blogging here at PropertyProf.  Michael writes on land use and takings issues, and shares my fascination with Lingle v. Chevron.

Welcome!

Ben Barros

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Bellemare on De Jure and De Facto Land Rights

Marc F. Bellemare (Duke - Public Policy) has posted The Productivity Impacts of De Jure and De Facto Land Rights on SSRN.  Here's the abstract:

There is an important literature on the causal relationship between the quality of institutions and macroeconomic performance. This paper studies this link at the micro level by looking at the productivity impacts of land rights. Whereas previous studies used proxies for soil quality and instruments to control for the endogeneity of land titles, the data used here include precise measures of soil quality, which allow controlling for both the heterogeneity between plots and the endogeneity of land titles. Results indicate that de jure rights (i.e., titles) have no impact on productivity and de facto rights have heterogeneous productivity impacts. Productivity is higher for plots on which landowners report having the right to plant trees, but lower for plots on which landowners report having the right to build a tomb and the right to lease out. Moreover, while the right to lease out increases both the likelihood that the landowner has the intention to seek a title for her plot and her willingness to pay to do so, whether her children will enjoy similar rights on the plot has the opposite effect.

Ben Barros

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MacLeod on Suicide and Gifts Causa Mortis

Adam MacLeod (Faulkner) has posted A Gift Worth Dying For?: Debating the Volitional Nature of Suicide in the Law of Personal Property on SSRN.  Here's the abstract:

This article examines the debate in personal property law over the question whether suicide is ever a volitional act and the attendant issue whether a gift causa mortis ought to be enforced when made conditional upon an act of suicide. Scholars have missed substantial doctrinal changes in the law of gifts causa mortis during the last thirty-three years. These changes bear upon other contested, legal issues, such as the wisdom of legalizing assisted suicide.

The article tests the modern rule that all gifts made in contemplation of suicide are enforceable and the assumption on which this rule is predicated, namely that all suicides are wholly non-volitional acts, products of mental or emotional infirmities. It tests the assumption against human experience, other bodies of law, and the best contemporary learning of psychology and sociology.

The article also offers a new understanding of the traditional rule (voiding gifts conditioned upon suicide), answers a strong doctrinal criticism, and attempts to fashion a more advanced version of the traditional rule, which avoids the shortcomings of both the traditional rule and the modern rule. It posits a stronger doctrinal basis for the traditional rule: strict adherence to the Statute of Wills, to which gifts causa mortis constitutes exceptions, best protects the donor’s intentions.

The article examines a stronger policy basis for the traditional rule, namely that the traditional rule, like parallel doctrines in tort law, criminal law, and insurance law, affirms the intrinsic value of each human person. This teaching helps promote a cultural commitment to the dignity of all human persons and informs contemporary debates on more complex problems, such as the question whether our nation recognizes a fundamental right to assisted suicide. This article concludes with a proposed revision of the traditional rule that is intended to reflect and advance contemporary learning about suicide.

Ben Barros

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