Deliberative Accountability Rules in Inheritance Law: Promoting Accountable Estate Planning

In the last few decades, the emerging trend in trust and estate law has been a steady loosening of the limitations on testamentary freedom. The 1990 Uniform Probate Code pioneered some of these developments. Construction rules are no exception. It is widely accepted that testamentary construction rules should track the owner\u27s presumed intent. In this Article, I argue that there is also room, alongside these intent-furthering rules, for intent-defeating rules in inheritance law. A property owner lacks incentives to internalize the relational, familial, or economic effects of her allocation. Such rules, termed deliberative accountability rules, are therefore designed to foster accountability in estate planning. These rules burden the owner with requirements to think her decision through, and to give reasons for and face the relational consequences of her act. These rules work to counterbalance the freedom of the owner by requiring her to make an informed decision

Consumption Property in the Sharing Economy

Various doctrines from different areas of the law provide special legal protection for property that is produced and used for personal use, creating the legal category of consumption property. Zoning, criminal procedure, discrimination, foreclosure and bankruptcy, taxes and eminent domain all treat property for consumption differently than commercial property. Recently, a new social phenomenon known as the sharing economy allows owners to rent out personal assets such as a room in their home, their private car, a bicycle, and even pets. The sharing economy challenges the foundational distinction between privately used property and commercial property and leads to fragmentation of uses and symbolic meanings. This fragmentation raises new questions: what are the boundaries of intimacy in the realm of modern consumption? How should the law regulate business transactions in intimate locations? This article presents the category of personal consumption property, arguing that the sharing economy profoundly challenges it, and then offers new ways to reinvent this category, introducing the framework of consumption property as a nexus of connections. The new framework also has numerous legal implications ranging from fair housing law and public accommodations law to taxes, business licenses and other regulatory regimes

Share, Own, Access

Millennials are losing interest in ownership. They prefer to access property as needed on a casual, short-term basis. Prompted by the sharing economy, online platforms, and ethical consumerism, access presents a radical alternative to established property forms. This type of property use is popular among younger, technology-savvy generations

The Duties of Online Marketplaces

Is Amazon a seller for the purpose of product liability law? Is it obligated to stop price gouging by its sellers in the midst of the COVID-19 pandemic? Is Airbnb responsible for discrimination practiced by its users? These legal issues are discussed separately, and courts are typically divided into two camps. Some courts force platforms into unfitting categories such as a seller, a hotel chain, or an employer in order to establish liability; others exempt platforms from liability altogether. This Article argues we need to think of these legal duties holistically, and suggests a new legal category: the market-constituting platform. Certain online platforms constitute a market: they create the infrastructure for the activity, the mechanism for closing a deal, the code of acceptable behavior, and the rules of participation in this activity. The challenge to legal thought and practice is to properly conceptualize the legal role of market-constituting actors and the duties that this role entails. This novel legal category has broad implications in different legal areas, including antidiscrimination law, tort law, and consumer protection

Deliberative Accountability Rules in Inheritance Law: Promoting Accountable Estate Planning

In the last few decades, the emerging trend in trust and estate law has been a steady loosening of the limitations on testamentary freedom. The 1990 Uniform Probate Code pioneered some of these developments. Construction rules are no exception. It is widely accepted that testamentary construction rules should track the owner\u27s presumed intent. In this Article, I argue that there is also room, alongside these intent-furthering rules, for intent-defeating rules in inheritance law. A property owner lacks incentives to internalize the relational, familial, or economic effects of her allocation. Such rules, termed deliberative accountability rules, are therefore designed to foster accountability in estate planning. These rules burden the owner with requirements to think her decision through, and to give reasons for and face the relational consequences of her act. These rules work to counterbalance the freedom of the owner by requiring her to make an informed decision

Better Left Forgotten: An Argument Against Treating Some Social Media and Digital Assets as Inheritance in an Era of Platform Power

Restraining technological platforms’ power has become one of the main concerns of our era. The control over cyberspace and data ownership are among the key issues addressed in the literature. Yet, the ongoing vigorous debate surrounding the inheritance of digital assets remains surprisingly oblivious of the platform’s involvement in shaping memory and continuity. Current legal scholarship and legislation ask whether social network profiles are inheritable property; they balance the user’s privacy and wishes against family members’ interests, without addressing or even considering the corporate power at play. This article argues that we are constantly asking the wrong questions. Instead of asking whether profiles are property, we need to ask how to protect the agency of the user considering this balance of powers. This article adds this important consideration to the current debate on inheriting digital assets, promoting the counterintuitive argument that under certain circumstances social network profiles should not be considered as inheritable property, but rather be deleted at death

Family Formation and the Home

In this article, we consider the relevance of home sharing in family formation. When couples or groups of persons are recognized as families, they are afforded significant benefits and given certain obligations by the law. Families have their own category of laws, rights, and obligations. Currently, the law of family formation and recognition is in a state of flux. Although in some respects the defining legal lines of the family have been well settled for centuries around blood and the formal legal ties of marriage and parenthood, in significant ways, the family form has been fundamentally altered over the past few decades. The law of family formation has finally flexed to include normalization of same-sex couples through marriage equality. And, Assisted Reproductive Technologies ( ART ) and gamete donors have broken the essentiality of the conjugal, genetic link between parents and children, making reproduction more widely accessible to a greater range of persons. Thus, the traditional channeling function of family law-into the nuclear sexual family including a heterosexual couple and its biologically and genetically related children-is expanding to include alternate family forms

The Informal Property Rights of Boomerang Children in the Home

Adult children living with their parents represent an increasingly common social phenomenon in the United States that challenges the boundaries of both the family and formal property rights. What is the legal status of adult children living with their parents? Do parents have any additional duties when they rescind permission for their child to live with them? Property and family scholars have not addressed this important issue. This Article fills the void. Instead of treating people who live together as strangers, owing no legal obligations to one another, I argue that under certain conditions living with others creates a property community in the home. I call this community “home-sharing.” Conceptualizing living with others as a property community allows us to legally recognize the deep commitment between people who share a home. I urge scholars to reconsider the rule that allows an owner to unilaterally revoke permission to live in the home, and I argue that eviction law should stipulate additional responsibilities when the owner seeks to evict a cohabitee. I do not claim that the child should continue to live at home, but argue for remedies that recognize the child’s voice, for example, a duty to explain and justify the decision, to listen to the child’s arguments, and to respect a predetermined cooling-off period