Teaching Trusts & Estate as Critical Wealth Genealogy

Allison Tait–

Step into a Trusts & Estates classroom and you’ll find the first thing most students learn is that the guiding principle in U.S. wealth transfer law is freedom of disposition. As the Restatement (Third) of Property tells us: “The organizing principle of the American law of donative transfers is freedom of disposition. Property owners have the nearly unrestricted right to dispose of their property as they please.” From the very beginning, students are trained to understand that wealth transfer law is designed to facilitate testator intent, which is the lodestar of both rulemaking and interpretation.

Teaching Trusts & Estates from a perspective of critique, accordingly, starts with an inquiry into the foundations of this core principle and an excavation of its genealogy, as defined through critical theory. Focusing on the critical genealogy of unrestricted property disposition rather than the principle itself requires that we identify not the “origins” of inheritance practices but “the accidents, the minute deviations—or conversely, the complete reversals—the errors, the false appraisals, and the faulty calculations that gave birth to those things that continue to exist and have value for us.” (Foucault, Nietzsche, Genealogy, History)

Consequently, in the classroom we not only inquire into the contingencies of history and the social practices that have shaped and reshaped the doctrine; we also focus on outcomes, rules, and reversals that deviate from and push against the principle of freedom of disposition. And indeed, from this perspective, we can glimpse several ways in which freedom of disposition is not all-encompassing but, rather, bounded. Freedom of disposition is bounded for individual testators by the norms of family formation and freedom of disposition is bounded for certain groups by the lack of material resources that would allow them to benefit from rules designed for families with income and wealth. These forms of boundedness, unearthed through critical genealogy, reveal a more nuanced conception of testamentary freedom while underscoring the substantial privileges that come with both family status and wealth.

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Teaching Penal Abolition

Amna Akbar –

In April, the New York Times ran a profile on abolitionist visionary and scholar Ruth Wilson Gilmore, and the Harvard Law Review published an entire issue on prison abolition. This fall, the University of Texas Law School Human Rights Center is hosting a conference on abolition. The new journalistic outlet The Appeal runs abolitionist pieces as a matter of course, and outlets like Rolling Stone, The Nation, and Jacobin have too. Podcasts like Chris Hayes’s Why Is This Happening, The Appeal’s Justice in America, and Beyond Prisons have featured probing conversations on abolition with leading organizer-intellectuals Rachel Herzing and Mariame Kaba. And behind it all is a growing movement of abolitionist organizing and campaigns, calling to defund and delegitimize police and prisons, shift resources towards the social wage, and build alternative methods to dealing with the pains and crises of capitalism, white supremacy, and patriarchy that prisons and police now deflect and exacerbate: Critical Resistance, BYP100No New Jails Seattle, Mijente, Survived and Punished, INCITE, and more.  

Like the movements abolitionist ideas emerge from and are circulating in, abolitionist praxis is shaping the urgency and discourse around criminal law reform. A primary difference between abolitionists and mainstream reformers is the end goal: Abolitionists work toward eliminating prisons and police, and building an alternate and varied set of political, economic, and social arrangements or institutions to respond to many of the social ills to which prison and police now respond. Importantly, abolitionists see their struggle as part of the unfinished work of transforming  the afterlives of slavery in economic, political, and social life.

Abolitionist thinking is central to contemporary debates over how to interpret the meaning of the criminal law and our criminal processes and enforcement mechanisms: it is literally part of the subject of “criminal law” today. We should teach it that way. More broadly law scholars teaching any course touching on criminal law and procedure, police and prisons, borders and border enforcement, should teach abolition. I have written before, including with Jocelyn Simonson, about how to teach criminal law differently, in this movement moment, and attune to the centrality of racialized and anti-black violence to our criminal legal system. Here, I share some notes and resources on teaching abolition. In my experience, teaching abolition requires study, but the study and teaching are more fruitful than I can say in this brief post. Teaching and learning abolition has deepened my study of the history of the United States and the unfinished social movements that define its shape, expanded my imagination of the future, and profoundly reshaped my sense of the work ahead. 

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Against the Economic Pie: How “Redistribution” Limits Political Economic Analysis

Martha T. McCluskey –


What gets lost when we describe social or environmental justice as redistribution?   This retrenches a fundamental binary—maximization versus distribution—in which maximizing logically comes first. By initially producing a bigger “economic pie,” law will be able to provide more generous slices to those who currently receive too little.

The term “re-distribution” makes explicit the hierarchical, temporal ordering of this binary. As part of a framing dualism, the term leads us to imagine that law sets up an essential baseline distribution, which afterward may be modified to advance contingent and secondary concerns about fairness, equality, or a healthy and stable environment. This presumed secondary and supplemental position leads to the common conclusion that these justice-oriented goals are best addressed not by substantive legal change disrupting the baseline order, but instead through a second-order, ancillary process of government taxation and spending.

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Against the Economic Pie: How Economic “Maximizing” Skews Legal Analysis

Martha T. McCluskey –

Should law maximize or divide the “economic pie”? Law students learn that smart thinking begins by asking this question. But this question skews legal analysis against a political economy perspective. It implicitly presumes a hierarchy where an abstract idea of economic gain normally stands above and beyond political and moral concerns, bigger in size and first in order.

Economic-Pie.jpgA recent New York Times commentary by pundit Thomas L. Friedman exemplifies the ideological work of this binary. Friedman contrasts the “redivide-the-pie” political left with various “grow-the-pie” political visions grounded in what he presents as the more realistic understanding that private economic power, not egalitarian democracy, is the foundation of good jobs and general prosperity. Similarly, legal academics often use terms like “economic efficiency” or “economic welfare” to define the optimal legal order as a matter of maximizing economic gain aside from fairness or the well-being of particular persons. For example, students learn to use efficiency to rationalize tort law limits on corporate liability for consumers’ injuries from risky products, or to justify contract law rules upholding agreements that produce harsh or exploitative results.

This first of two posts on this framing question challenges the implicit spatial metaphor embedded in the distinction between maximizing and dividing the economic pie. By definition, the whole is always greater than any particular part. We skip over many hard and important questions when we imagine the societal “whole” as a maximum “pie,” that can then be sliced and distributed for particular interests. The efficiency-distribution binary distorts legal analysis in three ways. First, the image of “maximizing” emphasizes quantity, rather than quality; second, it presumes economic gains normally and objectively expand rather than tightens the boundaries of prosperity and well-being; and third, it represents gain as a sum of separable parts, rather than as an interdependent system.

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Contextualizing Contract Law: An LPE 101 Reading List

Luke Herrine—

Contract is, of course, part of the core legal infrastructure that makes markets possible. But it is more than that. As an ideal type, it is at the core of all individualist social, moral, and political theories that seek to account for human sociality while avoiding social structure. Contract represents the ideal of being able to choose how to calibrate others’ demands with one’s own life plan. It presents the possibility of a social obligation that is not imposed upon one from the outside—by family or tradition or etiquette or the state. The rational choice theories that form the basis for neoliberal economic thought do not just understand chosen obligation as an ideal or a possibility: it is how they model all social institutions, even highly complex ones. No wonder “social contract” has been such an enduring model of the legitimate exercise of state power in the liberal tradition.

Theories based on the contractual ideal have proven especially useful for justifications of capitalist ordering. When the law has taken such theories too seriously, it has found it easy to endorse and even mandate all sorts of market-mediated exploitation as necessary to a free society. Lochner and its ilk were supposed to protect freedom of contract, after all.

The contractual ideal and the promissory morality that comes with it is part of our culture, and not just our legal culture. Even those of us who have been on the business end of exploitative contracts—for debt, for labor, for rent, for whatever else–have a hard time shaking the notion that we are obligated to do what we said we would (even if we didn’t know what we “said we would” via the fine print): that we chose, and therefore have responsibility for, the rules imposed upon us.

Thinking about—and teaching—contract from an LPE perspective requires denaturalizing with this tendency of thought and the forms of moral, political, and legal justification that have grown out of it. And doing that requires dealing with contracts not as the shadows of an ideal Form but as institutions shaped by socio-legal context. It requires dealing with the law of contract not as a self-contained and coherent body of judge-made doctrine but as an overlapping set of rules that deal with different contractual forms in different contexts. And it requires highlighting how the decontextualized contractual ideal can serve ideological functions when used as a map for this complex terrain.

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Labor Relationships & and the Legal Vision of 1L Contracts

Sanjukta Paul—

Contracts is more than an area of law; it is a key piece of the vision we lawyers bring to many other areas of law. The 1L Contracts course supplies a foundation-stone of the “pre-analytic vision” with which lawyers will eventually think about many other things, including labor relationships. Labor regulation as such is addressed only in the optional upper-level curriculum, and it is relatively marginalized even there. As a result, many lawyers, notably in the commercial and business sphere, will bring to their dealings with labor issues the contracts “vision.” That vision ultimately tends to erase the law’s deep involvement in constituting labor relationships. It thus tends to furnish apparent justification for the exercise of power by the already-powerful, in pursuit of private ends rather than the public interest, on the stage created and sustained by law.

The specific pre-analytic vision transmitted by the conventional Contracts curriculum is of atomistic individuals contracting at arms’ length. In this vision, any pre-contracting power differentials, including those power differentials that are created or sustained by law, are rendered invisible. In our historical imagination this vision is symbolized by ‘the Lochner Era,’ which was characterized by the frequent judicial invocation of contract principles to either invalidate or undermine democratic attempts to structure labor relations and markets more generally.

But apart from ignoring, for example, “the background distribution of property rights,” this vision also sits uneasily with the present-time legal constitution of labor relationships. Moreover, perhaps because of its foundation in the pre-analytic vision of contracts, commercial law is generally selective about when it chooses to treat labor contracts as “special” on the one hand, or as instances of a more general type on the other. Continue reading

The Public Law of Private Promising, And Not Even That: LPE 101 for Contracts

Noah Zatz—

What would a 1L Contracts course look like from a law and political economy perspective? I can’t claim to have designed my course from the ground up to answer that question—and indeed I am intentionally more eclectic than that. Nonetheless, several of my choices—about how to thematize the material and what to include at all—clearly reflect an LPE approach.

From start to finish, I present Contracts—perhaps the quintessential “private law” topic—as a study in public power. That is among the main reasons to start with remedies (as many Contracts professors do). Ultimately, the question is whether a government institution (a court) will render a judgment and back it up with the threat of publicly authorized violence: seizing property to satisfy a judgment or throwing someone in jail for contemptuously defying a court order. I underline this point on the first day of class by assigning a recent ACLU report on incarceration for nonpayment of private consumer debt. This reading also challenges conventional field boundaries, enabling students to follow a thread of debt and poverty that connects their Contracts class to Ferguson and racialized mass incarceration.

The publicness of Contracts goes beyond the brute fact that it is law. Rather, the field reflects policy judgments about when to make the force of law available to private parties. Although invocations of party intent typically submerge this point, it actually appears on the surface of the most conventional place to start Contracts: the very first section of the Restatement (Second) of Contracts. “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”  Well then, when and how does “the law” (speaking for we, the people) choose to transform private promises into legal duties? Continue reading

It’s Mine, and Yours

Rashmi Dyal-Chand –

I teach in a law school where most students and faculty pride themselves on falling somewhere along a spectrum of progressive, extremely progressive, socialist, and left anarchist. Thus, every year, usually within the first month of starting my first-semester property law course, I find myself surprised that the vast majority of my students appear to be intuitively and deeply committed to the idea that property ownership is and should be fundamentally about exclusion. Many of the same students who demonstrate depth of understanding about issues of discrimination, inequality, and power, voice the intuition that exclusion is somehow essential to those of us in the 99% (including their family and friends) without really considering the ways in which exclusion produces and maintains maldistribution.

Regularly, the first instance when students voice this commitment during class is when we discuss Jacque v. Steenberg Homes, in which an elderly couple sued a manufacturer of mobile homes for trespass when the defendant crossed an unused portion of their land for the purpose of delivering a mobile home to their neighbors. I have long used Joe Singer’s casebook, and I start my course with a unit on trespass that begins with State v. Shack. Thanks to Singer’s pioneering analysis of public accommodations law as central to understanding the principle of access in property law, I spend much of the trespass unit discussing the balance in trespass law between exclusion and access. Yet when we get to Jacque v. Steenberg Homes, students voice their intuition that the Jacques had the right to exclude the mobile home company from their property. “Why?” I ask, “Their property was in no way harmed by the defendant’s use of it.” They typically answer with some version of: “Because the defendant is a big corporate entity and the Jacques have very little power. The only power they have is over their property. We can’t take that power away.” “Well,” I ask, “what about the fact that mobile homes are a major source of affordable housing in this country? What if the company was doing its best to limit the costs of installing affordable housing on the neighboring property in order to avoid transferring those costs to the Jacques’ neighbors, who may not have been able to afford those costs?” For years, when we had this conversation, the students remained resolute. They said, for example, that the larger point still remained that corporations have too much power in this country and that property rights are our defense to such power.

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The Racial Wealth Gap and the Question of Time Zero

Michelle Wilde Anderson

Each year teaching Property Law, I have taught many of the big cases and topics on race and property law, such as M’Intosh and Dred Scott; segregationist turbulence in rights of reasonable access; public accommodations law; racially restrictive covenants; the Fair Housing Act. I never quite had a cohesive idea about this—they each seemed formative.

Meanwhile, evolving case law and politics have made it clear that we still have a basic disagreement at the heart of American law and politics, and my students carry that question with them into class: On matters of race, did we reset the playing field of property to start a merit system where fair access to markets would govern? Did we create a new Time Zero—for instance, when LBJ signed the Fair Housing Act as a gesture of solace and appeasement seven days after Martin Luther King, Jr.’s assassination?

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Property Law as Poverty Law

Michelle Wilde Anderson –

I recently interviewed a man in a weakened rural town who makes sausages for a local meat packing business on the 3am shift. He told me about a homeless woman who had come to the meat shop one dark morning with blood-soaked hands. Delirious with cold and exhaustion, she had punched in the glass on an abandoned burrito shack to shelter from the cold rain overnight.

For her, housing and land still matter. The forces of weather and gravity mean that 100% of people need shelter, with a patch of dirt for it to stand on. More than ever, it seems that housing and land matter most for understanding poverty and rising inequality. An average of more than 550,000 people were homeless each night in 2017, and 6,300 people are evicted in the US every single day. I live in San Francisco, where just yesterday I passed by 40 or so tent shelters on sidewalks, plus two Lamborghinis worth at least $250,000. I’ll guess that those cars don’t spend their nights outside.

The 1L introductory Property Law course isn’t usually about how law helps protect money and drive poverty, but I think it could be. Teaching it as a class mostly centered on land helps it get there.

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