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Abstract:
This Article examines an aspect of trust fiduciary law historically ignored in the law reviews: the trustee's duty to provide information to the trust's beneficiaries about the trust and its administration. The time is ripe for analysis, because the scope of the duty to inform provoked contentious debate during the drafting of the recently promulgated Uniform Trust Code (UTC), and all twenty of the enacting jurisdictions, including North Carolina, have substantially modified the UTC's provisions. Part I lays the descriptive foundation, explaining the requirements of the duty to inform under the UTC, under North Carolina's version of the UTC, and in the other nineteen enacting jurisdictions. Part II contains the normative analysis, addressing the central questions about the duty to inform: should trust law contain a duty to inform and, if so, should the duty be mandatory or should it be a mere default? To answer the first question, the Article draws on two interdisciplinary perspectives: legal history and law-and-economics. These perspectives reveal that the duty to inform has a distinguished pedigree within the history of Anglo-American law reaching back nearly two centuries, and that the duty performs a vital function today. Establishing the duty's normative basis, the Article then considers whether the duty should be mandatory at least in part, as in the UTC, or wholly default law, as in North Carolina. To answer this question, the Article enters into and extends the ongoing debate over whether trusts are primarily contracts or property arrangements. Rejecting the strong contractarian approach as inconsistent with the direction of the modern law of fiduciary administration and drawing attention to the beneficiaries' unique position and incentives to supervise and enforce the trustee's fiduciary obligations, the Article concludes that the beneficiaries must have the information needed to exercise their supervisory and enforcement powers, irrespective of the wishes of the settlor. The duty to inform can be default law at the margins but must maintain a mandatory core.

trusts, fiduciary, information, duty, beneficiaries

Abstract:
This Article emerges from the aftermath of the terrorist attacks on September 11. The loss of nearly three thousand lives prompted understandable calls for compensation to be paid to each victim's surviving family. Yet who would count as "family"? The administrator of the federal government's compensation fund, Kenneth R. Feinberg, announced in December 2001 that he would look to state inheritance law to answer this question. It was at this point that many lawyers and lawmakers realized what specialists in probate had long known: state inheritance laws provide strong protection for a decedent's surviving spouse but little or none for a decedent's surviving same- or opposite-sex domestic partner.

The American Bar Association's Section on Individual Rights and Responsibilities asked the ABA's Section on Real Property, Probate and Trust Law to examine whether and how inheritance rights might be extended to domestic partners. In turn, the Real Property, Probate and Trust Law section referred the question to the Joint Editorial Board for Uniform Trust and Estate Acts (JEB). In December 2002, the JEB appointed me as a special reporter to prepare a study including, if possible, a model statute. The study and statute were prepared and, at the JEB's November 2003 and February 2004 meetings, discussed. A concern was raised about whether the JEB would have the authority to approve statutory language or even to circulate such language for broader consideration; put conversely, whether the JEB would be acting ultra vires. At the February 2004 meeting, it was concluded that such activity would be beyond the JEB's authority. However, there was substantial agreement that, with issues of domestic partnership much in the news, state legislatures and legal scholars would be keen to see and could benefit from the study and model statute that had been prepared. I am therefore publishing the study in a law review. I wish to emphasize that I am acting purely in my individual capacity, not as a special reporter to the JEB.

This Article is divided into four parts. Part I provides social and demographic background on domestic partnerships within the United States. Part II examines the extent to which state inheritance law currently provides protections for domestic partners. Part III discusses the recent decision by the American Law Institute to provide rights for domestic partners in situations akin to divorce. Part IV contains a proposal for inheritance-law reform, including a model statute and accompanying commentary.

The draft being circulated on LSN contains the Introduction, Part IV, and the Conclusion. It is on Part IV that I particularly welcome feedback.

Abstract:
This is a substantial review of James Whitman's book on "The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial" (Yale University Press 2008). The review proceeds in three main parts. Part I outlines the book's argument. Part II highlights four significant aspects of the book meriting high accolades. Part III raises four questions prompted by the book's thesis. The review concludes that "The argument challenges the conventional wisdom and prompts fresh thinking about seemingly well-understood institutions and doctrines. The thesis is not bulletproof and leaves some questions insufficiently answered. But the questions do not undermine the significance of the accomplishment. This is a groundbreaking book that deserves a broad readership."

legal history, common law, trial, criminal law, reasonable doubt, ordeal

Abstract:
This article proffers a hypothesis about a persistent historical mystery: Why did the use of defense lawyers in felony trials at the Old Bailey in London increase so noticeably in the last quarter of the eighteenth century?

legal history, Old Bailey, criminal trial, counsel

Abstract:
Future interests are essential to the Anglo-American law of property. They permit ownership to be shared among generations, hence giving our property transactions a degree of flexibility historically unavailable to the countries rooted in Roman law. Yet the current law of future interests still carries much of its late-medieval baggage: it revels in unhelpful complexity, elevates form over substance, and frustrates the very transactions it should facilitiate.

This Article proposes a medieval solution: simplification. It is one of history's ironies that as the English courts were laying the foundation for our complicated structure of future interests, an English philosopher was preaching the virtues of conceptual simplicity. His name was William of Ockham, his lasting contribution the principle "pluritas non est ponenda sine necessitas": plurality should not be posited without necessity. The principle is known as Ockham's Razor, its blade ready to cut away purposeless complexity.

The law of future interests needs Ockham's Razor. The system of future interests is built on unhelpful and unnecessary classifications and burdened with outmoded rules of substantive law. Part I of this Article proposes five fundamental reforms to future interest law. These eliminate the classificatory superstructure and the outdated substantive rules while retaining the temporal division of ownership that is at the heart of modern family property transactions. Part II codifies these reforms in a proposed Uniform Future Interests Act, with accompanying commentary. The Article concludes by urging the Uniform Act's promulgation by NCCUSL and its adoption by state legislatures.

property, future interest, rule against perpetuities, law reform

Abstract:
Discrimination against sexual minorities pervades American law. Much of this discrimination exists in the form of "mandatory" rules denying equal rights in areas such as marriage, parenting, employment, housing, military service, immigration, taxation, and sexual privacy. Organizations and individuals within the gay, lesbian, and bisexual community are working mightily to combat this injustice. But as Professor Gallanis argues in this Article, the movement for same-sex equality has had too little to say about the "default" rules that likewise discriminate on the basis of sexual orientation. Using examples from the law of intestacy, health-care surrogacy, and guardianship, Professor Gallanis demonstrates how these rules can have significant and detrimental consequences, and urges the gay, lesbian, bisexual (GLB) movement to view the reform of these rules as an essential prerequisite to full equality.

Abstract:
This article challenges the conventional wisdom that modern evidence law developed first in civil litigation, where lawyers had long been active, and spread later to criminal trials as lawyers began appearing regularly in ordinary criminal cases. Using newly-available pamphlet accounts of civil and criminal trials, Professor Gallanis argues instead that the modern, exclusionary approach to evidence emerged first in the rough-and-tumble arena of criminal trials, and that it spread from there to civil cases as lawyers familiar with criminal practice began to use a more aggressive approach to evidence on behalf of their civil clients.

Abstract:
Much of modern American law is based on the unarticulated premise that the best way to record human arrangements is to reduce them to writing. But documents have inherent limitations and are not always the best means of communicating information. The weaknesses of documents are particularly apparent in the context of health-care decision-making. Advance medical directives ? known colloquially as living wills and health-care proxies ? create substantial problems precisely because their existence on paper makes them unattractive to potential consumers and ill-suited to the realities of medical practice. Professor Gallanis analyzes these problems and proposes a solution: amending the Uniform Health-Care Decisions Act to enable states to experiment with non-documentary advance directives, such as bracelets to be worn on the wrist or "smart" ID cards to be carried in the wallet or purse.