Volume 43, Number 3

Deeds and the Determinacy Norm: Insights from Brandt and Other Cases on an Undesignated, Yet Ever-Present, Interpretive Method

Donald J. Kochan

The land one holds is generally only as good as the property rights contained in the deed. The rights contained in the deed are only as good as the ability to get those rights enforced. And, the enforcement is only valuable if it recognizes a determinate meaning in the deeds from the point of conveyance. This Article pens the term “determinacy norm” to explain a collection of rules for the interpretation of deed terms that aim to make the meaning of deed terms de- terminate. I contend that, in order to satisfy the determinacy norm for deed interpretation, courts must (and arguably do) interpret the terms in deeds and land grants as having a fixed meaning set contemporaneously with the transfer and based on the discernable intent and expectations of the parties at the time of the conveyance or grant. This norm runs through existing case law and is pivotal to facilitating an effective property system. But, courts have failed to recognize either the term (or even the organizing principle) that is the determinacy norm.

As an illustrative example, some see the 2014 U.S. Supreme Court case of Brandt Revocable Trust v. United States as just a railroad right-of-way decision. But a closer look reveals that it is a good exemplar of courts striving to add determinacy to deeds and equivalent instruments like statutory land grants. Brandt reveals a pattern of U.S. Supreme Court juris- prudence that the Court itself is not adequately articulating where the determinacy norm lurks in the substructure of opinions.

We should more directly recognize the determinacy norm’s presence in private deed and public land grant cases. Doing so will allow us to better monitor and check the actions of judges to be sure that they are living up to the constraints of the determinacy norm. Such monitoring will help us better identify and protect the rights in the deeds that help organize our property system.

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The Road to the Gettysburg Address

Alfred L. Brophy

This Article recovers the forgotten ideas about public constitutionalism in seventy published addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, to the addresses by Edward Everett and Abraham Lincoln at Gettysburg in November 1863. It reveals an important, but forgotten, set of ideas that provided a precedent for Lincoln’s Gettysburg Address. Those addresses, including Lincoln’s, reveal the centrality of constitutional values—as opposed to constitutional text—in framing Americans’ interpretation of the Constitution. Pre-Civil War Americans had a vibrant public discussion of constitutional principles, in addition to constitutional text. These were ideas propagated on such diverse occasions as July Fourth celebrations, arguments in the Supreme Court, dedication of public monuments, lyceum addresses, and college literary society lectures.
For Americans, especially those of the Whig Party, the Constitution was a key component of culture and a key unifier of the nation. Cemetery dedications are one place where Whigs turned to promote their constitutional values. The cemetery supported constitutional values of Union, respect for property, and obedience to the rule of law. Rural cemeteries promoted Whig constitutional ideals about order, patriotism, and Union. Those values were at the center of the debate over the response to secession and they were put into practice by soldiers along Cemetery Ridge at Gettysburg in 1863. Lincoln’s address at Gettysburg reflects the appeals to sentiment and Constitution that were so frequently invoked in the thirty years before the War. This hidden history reveals how those ideas mobilized support for Union and, thus, how public constitutional thought affected the actions of voters, jurists, and politicians.

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Overtreatment and Informed Consent: A Fraud-Based Solution to Unwanted and Unnecessary Care

Isaac D. Buck

According to multiple accounts, the administration of American health care results in as much as $800 billion in wasted spending due largely to the provision of overly expensive, inefficient, and unnecessary services. Beyond inflicting fiscal pain on the nation’s pocketbook, this waste has no clinical benefit—and often results in unnecessary hospital stays, cascading follow-up procedures, and time-wasting inconvenience for American patients. But aside from the mere annoyance of unnecessary care, the administration of overtreatment—that is, unnecessary care in and of itself—causes harm to the patient. Excessive care is deficient care. Un- necessary care risks potential medical error and infection, and often subjects the patient to excessive recovery and rehabilitation. In addition to the fiscal reasons, it is not a stretch to observe that it makes little or no sense for American patients to desire unnecessary care.
But yet, as a general matter, today’s modern and patient-protective legal and bioethical framework governing American health care purportedly forcefully protects patients from un- desirable care by requiring their informed consent before any procedure or service. The importance of informed consent is well settled, and it is recognized as a sacred value in American health care. In law and bioethics, this value is so sanctified that in cases where providers fail to achieve informed consent, legal recourse is available for the wronged patient.
The prevalence of overtreatment, when juxtaposed with the sanctity of informed consent, is a perplexing legal and policy-based problem. Specifically, this disconnect that results— between the robust protection of informed consent and patient autonomy on one hand, and the nagging problem of undesirable and harmful overtreatment on the other—calls out for a reasoned legal resolution. While overtreatment plagues American health care, the legal academy has yet to creatively and sufficiently examine the role that the doctrine of informed con- sent, when coupled with the enforcement tools employed by the Department of Justice, could play in reining in unnecessary care.
This Article fills that gap. By suggesting a path forward that bolsters the legal force of informed consent to provide a patient-centered “backstop” and thereby prevent unnecessary procedures in American health care, this Article argues that a stronger version of informed consent must contain the answer to the intractable problem of overtreatment. Building on previous scholarship that sought to impose different legal and policy-based controls on providers to prevent overtreatment, this piece shifts the focus to the other side of the hospital bed, making clear that viable legal tools are available to the federal government and can be employed to protect patients from undesirable care. The patient’s protections can be expanded in an effort to limit the injurious effects of American overtreatment.

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Through the Lens of Innovation

Mirit Eyal-Cohen

The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of entrepreneurship. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Entrepreneurship turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviation as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes. Through specific legal classifications, it points to significant distortionary effects. It theorizes that a legal culture that wishes to entice entrepreneurship is one that requires legal agents to think like entrepreneurs. Thereafter, it offers a bridge between law and entrepreneurship by providing policymakers with tools to recognize its distinctive modus operandi.

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Six Degrees of Graduation: Law and Economics of Variable Sanctions

Alex Raskolnikov

From parking tickets to tax fines and punitive damages, legal sanctions matter in people’s lives. Yet neither the legal nor the economics literature offers a comprehensive treatment of sanctions. Their practical complexity is not well understood, and their theoretical analysis is fragmented. This Essay addresses both limitations using tax law as a primary example. Sanctions are complex because they vary along at least six different dimensions: aggressiveness, magnitude, culpability, effort to comply, likelihood of detection, and offense history. These six degrees of sanction graduation are distinct, and potentially independent, but often inter- twined in obscure and perplexing ways. After clarifying the unique nature of each degree (or axis) of graduation, this Essay reviews the literature in search of the economic rationale for varying sanctions along each axis in light of the incentives such variation creates. I conclude that three graduation axes of great practical significance—aggressiveness, culpability, and offense history—are the least developed theoretically. Two other dimensions—the likelihood of detection and the effort to comply with the law—are more conceptually advanced, although the theory is still fairly removed from the enforcement realities. In contrast, economic analysis reveals a good grasp of the magnitude axis and a clear path to modelling the real-life features that have remained overlooked thus far. By highlighting the complexity of sanctioning regimes and emphasizing the related theoretical successes and shortcomings, this Essay identifies fruitful areas of future research, some of which I pursue in related work.

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Embracing Third-Party Litigation Finance

David R. Glickman

All litigation invariably requires financing. Let us be proactive and add Third-Party Litigation Finance (“TPLF”) providers to the list of major participants in the American legal system. TPLF is, generally speaking, the process through which the inherent value of a legal claim is used to secure financing. TPLF providers almost exclusively offer nonrecourse financing, i.e., consumers are only obligated to re- pay an investment to the extent their suit is successful. In its ideal form, providers recognize a litigation claim as a financial asset and offer its owners the flexibility to use it strategically in their business decisions. At this moment in time, however, contracts vary widely across this budding and unregulated industry. A characteristic split exists in the industry between consumer legal funding and investment in commercial claims, the latter including loans to lawyers and law firms. Investment in commercial claims is developing into a legitimate industry that provides historically unavailable solutions to businesses and lawyers involved in litigation. But intelligent regulation is necessary to achieve maximum protection for consumers and streamline the industry’s growth. Most important, the implementation of intelligent regulation will protect the integrity of the American legal system.

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A Rose by Any Other Name: Florida’s Return to Consolidated-Tomoka

Jacqueline Van Laningham

Florida has historically provided less discretionary power to agencies than the federal system has. Compared to the federal regulatory scheme, Florida is downright stingy. The federal system starts from a position of deference to agency decisions and often gives broad discretion to agencies in terms of rulemaking authority. Florida starts from a position of inherent distrust: agency rulemaking authority is limited to specific delegation by the legislature and, in the event of ambiguity in the statutory text, the text is to be interpreted to provide less agency power.

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