Prop1 Class 19 – Marital Property II

Class 19 – 3/23/17

Marital Property II

  • Divorce, 393-395
  • In re: Marriage of Graham, 395-400
  • Notes, 400-401
  • Elkus v. Elkus, 401-406
  • Notes, 406-407
  • Termination of Marriage by Death, 407-409
  • Problems, 409
  • Modern Elective Share, 409-410

The lecture notes are here.


What is the value of a law degree? According to a (controversial) article, titled The Economic Value of a Law Degree, the value of a law degree, as opposed to stopping with a bachelor’s degree is roughly $1 million over the course of the year:

After controlling for observable ability sorting, we find that a law degree is associated with a 60 percent median increase in monthly earnings and 50 percent increase in median hourly wages. The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historical norms.

We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.

This chart depicts the value of a law degree over the course of a persons’ career.


This chart breaks down the lifetime earnings from a law degree by decade across percentiles (ranging from people the bottom to the top of law degree holders):


Here are the numbers broken down by gender:


This is the great diva Frederica von Stade.


Here is Stade singing at the 1991 Metropolitan Opera Gala

And more opera.

Justice Ginsburg, one of the most famous opera fans in the country, is a huge fan of von Stade, listing her work as among her favorite:

Mozart, “The Marriage of Figaro”; Samuel Ramey, Lucia Popp, Thomas Allen, Kiri Te Kanawa, Frederica von Stade, Kurt Moll, Robert Tear, Georg Solti conducting the London Philharmonic and London Opera Chorus (Decca).

The duo also share something else in common. They were both selected by the Georgia O’Keeffee Museum as Woman of Distinction: RBG and van Stade.

Sec. 2.401.  PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1)  a declaration of their marriage has been signed as provided by this subchapter; or

(2)  the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

(b)  If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

(c)  A person under 18 years of age may not:

(1)  be a party to an informal marriage; or

(2)  execute a declaration of informal marriage under Section 2.402.

(d)  A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

Also relevant for our discussion is 2.001 (emphasis added):

Sec. 2.001.  MARRIAGE LICENSE. (a) A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state.

(b)  A license may not be issued for the marriage of persons of the same sex.


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The Enactment of the ACA and the AHCA

The ongoing fight in Congress over the American Health Care Act–between purist, pragmatist, and pusillanimous members–reminds me of the internecine conflicts during the enactment of the Affordable Care Act. Speaker Pelosi had to delicately balance her caucus between single-payer advocates, the pro-Life caucus, and moderate members who feared losing reelection. Indeed, the shuttle diplomacy between President Trump and the Freedom Caucus reminds me of the hand-holding and phone calls President Obama made seven years earlier.

Chief Justice Roberts’s description of the ACA’s enactment in King v. Burwell could just as well be said of the AHCA’s enactment.

Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amend- ment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”).

In the end, you’ll recall, the votes were there for the ACA.


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Property I Midterm – Spring 2017

I have finished grading your Property I midterms. You can download the exam here, and the A+ paper here.

Here is the distribution. On the whole, the papers were quite strong, and the class had a solid grasp on the material. These midterms were better than the students from my previous property class.

For the most part, everyone understood the issues. What separated the As from the Cs was how your paper discussed caselaw. Far too many of you did not mention the relevant cases. Some of you referred to cases, but didn’t name them (it is Pierson v. Post, not the “fox case”). Here are some high-level thoughts on the five questions:

  1. The first question tested you on–shocker–hunting an animal. The fact patter was fairly complicated, as the boar ran from one part of the island to another, then as it was about to be captured, fell into a river, froze solid, and floated downstream. The best answers cited both cases (Pierson, Ghen, and Keeble), the natural/common law doctrines (ratione soli, rule of capture,  labor theory), philosophers (Locke, Grotius, Pufendorf), and policy (efficiency/fairness).
  2. The second question concerned the acquisition-by-find doctrine. Note that discovery and conquest doctrine are not relevant. Rather, you should be citing cases like Armory, Hannah v. Peel, and others.
  3. The third question concerned a future interest in a flashlight. The present interest was a life estate, and the future interest was a vested remainder in fee simple. Many of you noted that because it was not written down, it would be void under the statute of frauds. This case was similar to Gruen v. Gruen.
  4. The fourth question concerned a gift in anticipation of death. Many of you discussed gifts causa mortis which was correct. The present interest was a life estate. Don’t get confused by the “but if” language–because the estate terminates at Tom’s death, this is not a defeasible estate. The future interest is a vested remainder in fee simple.
  5. The fifth question presented a riparian issue. Good answers discussed the Western rule and the common law rule. The better answered incorporated the Coase Theorem, and how the parties could bargain to reach an optimal result.


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Constitutional Law Midterm – Spring 2017

I have now finished grading your constitutional law midterm. You can download the exam here, and the A+ paper is here. On the whole, the papers were solid.

Here is the distribution:

This exam was based on current events–indeed, it was the easiest fact pattern I’ve ever written. I copied, nearly verbatim, from President Trump’s January 27, 2017 executive order. I even copied President’s Trump distinctive signature to make it even more real. I twisted the facts around, such that Washington enacted the “Immigration Resistance Act of 2017.” Rather than focusing on the Establishment Clause and Due Process, which we have not yet covered, this question framed the issue in terms of federalism.

Here are some high-level thoughts about the answers.

  1. The first question considered whether the Attorney General, pursuant to 8 U.S.C. s 1373, could withhold $1 billion from Washington, a sanctuary state, that refused to share immigration information with the federal government. The best answers would discuss South Dakota v. Dole (and in particular Justice O’Connor’s discussion of “germaneness”) and the Chief’s opinion in NFIB (with a focus on the clear statement rule, and the coercion line). The top answers engaged with math, and analyzed where the withholding of $1 billion falls between the line in Dole and the line in NIFB.
  2. The second question considered whether a state could prohibit its state officials from sharing information about immigrants with the federal government. The best answers discussed the commandeering doctrine, and in particular, New York v. United States and Printz. The top answers questioned whether a requirement to merely share information amounted to commandeering. Indeed, this is a question currently being debated by scholars now.
  3. The third question threw a number of students for a loop: Washington criminalized federal requests for information about immigrants in the state. The key case here is M’Culloch v. Maryland, where the state tried to tax federal bank officials. CJ Marshall found that such a tax was designed to destroy the federal institution, and the power to tax is the power to destroy. Here, Washington would actually throw federal officials in prison. This is unconstitutional.
  4. The fourth question asked you to consider the interaction of two statutes through the lens of Justice Jackson’s pivotal concurring opinion in Youngstown. Virtually all of you recited Jackson’s three tiers. (Watch Judge Gorsuch explain the tiers during his confirmation hearing). However, few of you tried to reconcile the two statutes, which are in tension, based on whether Congress has, or has not sanctioned the executive’s action. There was no single correct answer, but I wanted more than merely restating Jackson’s opinion.
  5. The final question–the policy question–asked whether Judge Robarts should respond in his opinion to President Trump’s tweets. On the whole, all of you articulated opinions–the better papers incorporated precedent.The best answers brought to the fore clashes between the President and the Court: Marshall and Jefferson (Marbury), Taney and Lincoln (Merryman), FDR and Court-packing, Cooper v. Aaron, etc.


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Judge Gorsuch Talks about Justice Jackson’s Concurring Opinion in Youngstown

During his colloquy with Senator Leahy, Judge Gorsuch offered an engaging summary of Justice Jackson’s concurring opinion in Youngstown. Alas, contrary to early reports, he did not say that the Youngstown framework applies to the pending case concerning the travel ban. Indeed, Gorsuch assiduously avoided any such answer. Rather, his discourse about Youngstown came in response to a question from Leahy about whether the President’s actions are subject to judicial review.

Here is a rough transcript (from a media aggregation service):

LEAHY:  well, is the president’s national security determinations, are those reviewable by the court?

GORSUCH: senator, no man is above the law.

LEAHY: okay. because they’ve asserted that their national security determinations are unreviewable by the court. i’ve heard presidents — other presidents say that in the past. i disagree when they say that. do you disagree?

GORSUCH: senator, as a judge i i apply the law and the law here i think is “youngstown.” i look to justice jackson and justice jackson wrote a brilliant opinion in “youngstown.” now it’s important to know who he was —

LEAHY: i wrote a paper on that in law school.

GORSUCH:  i know you did. we talked about it. and here was the fiercest advocate of executive power as fdr’s attorney general. fierce advocate of executive power and when he became a judge he said “the robe changes a man where it should.” and you go from being an advocate to being a neutral adjudicator. and the youngtown system of analysis when it comes to presidential power and foreign affairs has three categories. one, the president acting with the concurrence of congress. that’s when the president is acting at his greatest strength because they’re shared responsibilities in our constitution.this body has power of the purse and the power to declare war assigned to it in article one. when the congress and the president are in disagreement, that’s the other end of the spectrum spectrum. the president is acting at the lowest ebb of his authority. and when congress is silent, that’s the gray area in between. that’s how a court as opposed to a lawyer or advocate approaches the problem.

PATRICK LEAHY: well, let’s go to that then. president trump has declared torture works and he’s said, and i quote him “bring a hell of a lot worse than waterboarding.” in 2002 a memo from the office of legal counsel claimed that any effort by congress to regulate the interrogation ttd combatants would violate the constitution’s sole vesting of the vesting of the commander and chief in the president. now considering the fact that congress has passed a law on this, what controls?

GORSUCH: well, we have a convention against torture and implementing legislation which ban torture. we have the detainee treatment act which we talked about earlier which bans cruel and inhumane and degrading treatment. amendment. we also have an eighth

Though, for reasons I’ve stated at Lawfare, Youngstown is the correct framework to consider the constitutionality of President Trump’s travel ban.
Update: Gorsuch is now the 5th consecutive nominee to cite Justice Jackson’s framework during a confirmation hearing.

Then-Judge Roberts stated this fact clearly at his confirmation hearing during a colloquy with Senator Leahy:

SENATOR LEAHY: But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?
ROBERTS: I think the approach in the case is one that has guided the court in this area since 1954, ’52, whatever it was . . . . Youngstown’s a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR’s attorney general and certainly a proponent of expansive executive powers . . .

As fate would have it, John G. Roberts clerked for Justice Rehnquist the term that the Court decided Dames & Moore v. Regan, 453 U.S. 654 (1981), which (mostly) reaffirmed Youngstown.

Ditto for then-Judge Alito:

SENATOR SPECTER: Judge Alito, I want to turn now to executive power and ask you first if you agree with the quotation from Justice Jackson’s concurrence in the Youngstown Steel seizure case about the evaluation of presidential power that I cited yesterday.
ALITO: I do. I think it provides a very useful framework. And it has been used by the Supreme Court in a number of important subsequent cases: in the Dames and Moore case, for example, involving the release of the hostages from Iran. And it doesn’t answer every question that comes up in this area, but it provides a very useful way of looking at them.

And then-Judge Sotomayor:

The best description of how to approach those questions was done by Justice Jackson in his concurring opinion in the Youngstown’s case. And that opinion laid out a framework that generally is applied to all questions of executive action, which is that you have to look at the powers of each branch together.

Same for then-General Kagan:

And we have actually never argued that Article 2 alone would provide such authority, and the question you raise really — the usual framework that people use when they think about this question is something called Youngstown, the — of course, Justice Jackson’s opinion in Youngstown. And he sets forth three different zones

So yeah, Jackson is the rule of law.

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ConLaw Class 18 – Gender Discrimination and “Intermediate Scrutiny”

Class 18 – 3/21/17

Gender Discrimination and “Intermediate Scrutiny”

  • Frontiero v. Richardson (1001 – 1006)
  • Craig v. Boren (1006 – 1009).
  • United States v. Virginia (1009 – 1020).
  • Cleburne v. Cleburne Living Center, Inc. (1020 – 1028)

The lecture notes are here.

Frontiero v. Richardson

This is Sharron and Joseph Frontiero


Craig v. Boren

Here is a photograph take in 1996 on the 20th anniversary of Craig v. Boren.

The photo shows Fred Gilbert (criminal defense attorney who argued for Oklahoma), Carolyn Whitener (co-plaintiff and owner of Honk n Holler convenience store)
Justice Ginsburg (who argued the case), Curtis Craig (college student and co-plaintiff, now president of Explorer Pipeline Co.).

 This is the Honk-N-Holler Grocery store, where the light-beer was sold.

(Courtesy of Clare Cushman)

United States v. Virginia

This is the Virginia Military Institute.



Here are some of the first female cadets that graduated from VMI.


And here is Ruth Bader Ginsburg, also known as the Notorious R.B.G. (Yes, there is a tumblr)


And here is a picture of Scalia and Ginsburg riding an elephant in India.


Cleburne v. Cleburne Living Center

This is the location of the former Cleburne Living Center at 201 Featherton Street.

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Prop1 Class 18 – Marital Property I

Class 18 – 3/21/17

Marital Property I

  • Marital Interests, 383-384
  • Common Law Marital Property, 384-385
  • Sawada v. Endo, 385-390
  • Notes, 390-393

The lecture notes are here.

This is the 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton, and other leading suffragists at the Seneca Falls Convention in July of 1848. Relevant to our discussions are the provisions concerning coverture, and the inability of women to own, use, and dispose of property. Among the other “”injuries and usurpations on the part of man toward woman”:

  • He has made her, if married, in the eye of the law, civilly dead.
  • He has taken from her all right in property, even to the wages she earns.
  • He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.


The 19th Amendment, which prevented states from denying the franchise to woman, was ratified on August 18, 1920.


Texas Code 2.401 governs “common law” or “informal marriage”


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