Inequality—How We Got Here & Why We Stay
Wealth inequality is stark in American society. This is because inequality is structural. Specifically, it stems from the fact that property rights have never been distributed equally by the State. With a few exceptions, the State originally limited property ownership to straight, white men. Since then a myriad of laws and legal regimes have ensured that the original unequal distribution of property would continue and become an entrenched part of the American social fabric. Notwithstanding this reality, there is a pernicious myth that the State has nothing to do with these “inequalities of fortune.” This panel contests this myth by tracing the ways in which usually overlooked legal regimes, like contract law, family law, trusts and estates, and tax law, have all contributed to creating and perpetuating structural inequality.
Danielle Kie Hart, Southwestern Law School (email@example.com): “About Those Inequalities of Fortune”
Erez Aloni, Peter A. Allard School of Law, University of British Columbia (firstname.lastname@example.org): "The Trinity of Inequality: Wealth, Marriage, and Masculinity."
Allison Tait, University of Richmond School of Law (email@example.com): “Trusting Marriage”
Francine Lipman, University of Nevada, Las Vegas, William S. Boyd School of Law (firstname.lastname@example.org): "Taxing Women: Herstory of Lucas v. Earl and its Inequality Implications (from the Feminist Tax Judgments Project)”
Enabling the Self-Represented Layperson as the Golden Age of Estate Planning Dawns
Victoria J. Haneman
A demographic change colloquially referred to as the “silver tsunami” will be sweeping the United States between 2010 and 2040. In three decades, the total number of U.S. residents over the age of 65 will double from 40 million to 60 million. The largest transfer of wealth in the history of the nation will be changing hands in the next few decades as the aging Baby Boomer population passes an estimated $30 trillion to Generation X and Millennials. Estate planners sometimes excitedly refer to the anticipated boon of business as the Golden Age of estate planning, as they anticipate being kept busy with retirement planning, asset protection planning, estate planning, and so forth. Less discussed is the access to justice problem that will reach a significant portion of the aging persons who find themselves unrepresented or underrepresented.
Despite best efforts to create options for the self-represented to execute wills, the majority of Americans die intestate—or without a valid will in effect at the time of death. The property of the will-less masses is distributed in accordance with a set of default rules referred to as intestacy statutes. Intestacy statutes are problematic, however, in that they are becoming increasingly anachronistic against the modern landscape of family relationships. Further, there is reason to question the role of these statutes in perpetuating economic inequality from generation to generation. The purpose of this Essay is to discuss the importance of carving an easier path for the self-represented layperson to pass testate and to propose several easily implemented ideas.
Phyllis C. Taite (Florida A&M University College of Law)
“Disinheritance in America: The Children Left Behind”
Responsibility to take care of children during your lifetime is without question. Child support laws have been implemented in every state under the premise that there is an inherent duty to support dependent children because this represents the best of the child. Some laws even extend that duty to provide financial support to a child over the age of majority when the child pursues higher education. Just as entrenched is the right to dispose of your property as you please after death. Every state has some version of intestacy provisions that provide for disposition of property after a decedent’s death, trumped by specific wishes of the decedent in the form of a will or other testamentary document.
When these two principles clash, what public policy principle should prevail? Should testamentary intent trump the best interest of a child? This paper will explore why the best interest of a child should prevail. Further, the specific proposal in this paper is to balance testamentary freedom with parental responsibility. I submit this balanced approach will represent the best interest of the child. To accomplish this goal, decedents should be required to support minor children during life and after death. In other words, the doctrine of “forced shares” should be implemented to provide support for children after death in the same manner that financial support is required during life.
Forced shares is entrenched in most international countries. Still, the overwhelming majority of U.S. states have not adopted this policy. Research demonstrates that a majority of the children who are impacted by inheritance are children born out of wedlock. The relationship (or lack of relationship) with the mother directly impacts the father’s relationship with the child. In addition, when parents are divorced, children often live with their mothers and this typically represents the lower income household with the greater financial responsibility for child rearing. In each of these cases, the children are economically impacted by the adult relationships. By providing for minimum property protections for children, we may be able to bridge the gap in economic equalities for both women and children.
This paper will discuss specific policies under the civil and common law systems that warrants a change in our policies. This paper also offers specific proposals to balance property rights and parental responsibilities.
Orit Gan, Sapir College, School of Law
Does contract law uphold modern standards of gender equality? Does contract law treat women and men equally? Is contract law applied equally to men and women? Does the application of contract law result in equal outcomes for men and women? Though women long ago gained the right to contract, these questions are still relevant today, in that they focus on the substance of contract law doctrines, their interpretation and their application. There are many different theories that measure equality; this Article examines contract law using Ruth Bader Ginsburg's anti-stereotyping theory.
According to Ginsburg’s anti-stereotyping theory the State may not reinforce traditional gender roles. Ginsburg challenged laws that reflected a “separate sphere” mentality and reinforced the breadwinner-homemaker dichotomy. She highlighted the ways in which the State's perception of differences between men and women translated into concrete social inequalities and gender-differentiated sex and family roles. These stereotypes, Ginsburg claimed, perpetuate the oppression and subordination of women and are the root of societal inequality between the sexes.
The notion that the State may not reinforce stereotypical sex-based roles goes further than an equal protection analysis of statutes under the fourteenth amendment. The notion that laws reflecting stereotypical gender norms are discriminatory is applicable in the field of contract law, as well. The application of the anti-stereotyping theory to contract law doctrines, such as consideration, duress, promissory estoppel, unconscionability and damages, reveals the gender dimensions, aspects and biases of contract law. It challenges the ways in which contract law reinforces an economic men - domestic women dichotomy. In other words, contract law reinforces a market-home dichotomy which directly correlates to a men-women dichotomy. In the past, contract law doctrines excluded non-economic women's experiences and perspectives. While men's economic concerns were addressed by contract law, women's domestic concerns remained outside the scope of contract law. Nowadays, contract law formulates an economic rule and a non-economic exception. This binary in contract law perpetuates stereotypes of contractual parties as being economic men, while domestic women are relegated to the margins of contract law. Contract law specially treats women, carving out paternalistic rules to protect them.
However, the anti-stereotyping theory is optimistic: just as the law adopted traditional gender norms, so too can it reject stereotypical thinking. Contract law can be used to battle stereotypical thinking and gender bias. As a simple start, contract law should reject old-fashioned notions about women and men. More demandingly, in order to make contract law more inclusive, there is a need to incorporate women's experiences and not only men's interests. The most challenging change is the rejection of the rule-exception model and the endorsement of a contextual contract law.
The argument that contract law is not neutral and objective but rather gendered and biased is not new. However, the analysis in this Article based on Ginsburg’s anti-stereotyping theory provides a framework for exploring the gender dimensions, applications and aspects of contract law. Likewise, the call for a contextualized contract law is also not new. However, this Article offers guidelines for contract law to begin to rid itself of antiquated stereotypes and thereby to become more contextual, inclusive and egalitarian. Furthermore, by applying an equal protection theory to contract law, this Article further explores the intersection of gender and economic inequality and the interplay between contract law and constitutional law.