Volume 2016, No. 5

Table of Contents

Articles

Moving Forward by Looking Back: The Retroactive Application of Obergefell
Lee Ford Tritt

The recent Supreme Court decision of Obergefell v. Hodges has forever altered American jurisprudence. Not only did this decision make same-sex marriage legal in all fifty states, but it also required states to recognize same-sex marriages from other states in accordance with the 14th Amendment. The Court’s holding in Obergefell raises a fundamental question with serious legal and financial significance: when exactly do these once unrecognized marriages legally begin? And to what extent must courts apply Obergefell retroactively? The stakes are high and substantive financial effects are pending on the answer to this question—for, with marriage, comes wide-ranging rights and obligations. The decision will predominately impact the realm of real property law, property succession law, employment benefits, and family law. There currently are, and will continue to be, complicated lawsuits concerning the potential retroactive vestment of marital property rights for same-sex married couples, which may also impact third parties such as purchasers, mortgagees, and title insurers. Unfortunately, the Obergefell decision provided no guidance on its retroactive application. Therefore, this Article articulates and defends a rich positive and normative jurisprudential framework through which to analyze the rapidly growing number of real property, trusts and estates, and employment benefits disputes that continue to be initiated in the wake of the Obergefell decision. More importantly, this Article will proffer specific, effective, and tailored remedies to resolve subtle, but important, variances in these rapidly growing number of disputes. This Article is the first to examine the retroactivity of Obergefell as it applies to trusts and estates and property issues.

Access to Justice: What to Do About the Law of Wills
Iris J. Goodwin

Recently there has grown up an industry—drawn not just from the estate planning bar, but also from the broader financial press—all intent upon raising the hue and the cry with respect to online, do-it-yourself wills. This cautionary chorus has undertaken to chronicle the disasters that have resulted where laypersons attempt to assemble a will using one of the inexpensive programs that have appeared on the legal landscape over the last ten or fifteen years. The message is clear: when it comes to estate planning, the law is not congenial to lay-endeavors. But over much the same period of time, poverty lawyers and their kindred spirits in the academic bar have focused attention on the paucity of legal representation in civil law matters available to people of modest or moderate means—in the area of estate planning as well as otherwise. To ameliorate problems of access to justice, some have proposed expanding the opportunities for pro se representation so that the underrepresented can represent themselves. In light of this movement to expand pro se representation in civil law matters, the possibility of making a will online without assistance (and cost) of counsel can only be taken as a positive development and any resistance embedded in the law viewed with a degree of skepticism and puzzlement that argues for legal change. But furthermore, the normative imperative that would render the law more hospitable to the online, do-it-yourself will does not merely emanate from the access-to-justice movement. The law of wills itself harbors values with respect to testamentary freedom that mandate some sort of accommodation with an innovation that could empower significant numbers of people when it comes to directing the disposition of their property at death.

Any effort to improve the standing of these lay-created wills in the legal firmament must ultimately come to terms with the various ways in which these documents commonly run afoul of the law of wills—a notoriously technical and unforgiving area of the law.

Scaffolding: Using Formal Contracts to Support Informal Relations in Support of Innovation
Gillian K. Hadfield & Iva Bozovic

In a study that follows in Stewart Macaulay’s (1963) footsteps, we asked businesses what role formal contract law plays in managing their external relationships. We heard similar answers to the ones Macaulay obtained fifty years ago from smaller companies that described important but non-innovation-oriented external relationships. But we also uncovered an important phenomenon: companies, large and small, that described innovation-oriented external relationships reported making extensive use of formal contracts to plan and manage these relationships. They do not, however, generate these formal contracts in order to secure the benefits of a credible threat of formal contract enforcement. Instead, like Macaulay’s original respondents, they largely relied on relational tools such as termination and reputation to induce compliance. In this paper we first present examples of this phenomenon from our interview respondents, and then consider how conventional models of relational contracting can be enriched to take account of a very different role for formal contracting, independent of formal enforcement. In particular, we propose that formal contracting—meaning the use of formal documents together with the services of an institution of formal contract reasoning—serves to coordinate beliefs about what constitutes a breach of a highly ambiguous set of obligations. This coordination supports implementation of strategies that induce compliance—despite the presence of substantial ambiguity ex ante at the time of contracting—with what is fundamentally still a relational contract.


Commentary

Exploding Trains in the Wake of the Crude-by-Rail Boom: The Distribution of Liability in Crude-Train Derailments
Jack Huerter

American crude oil production has reached an all-time high, with hundreds of millions of barrels of crude oil being delivered to market each year. As a consequence, the transportation system has been stressed to the max to meet the crude oil delivery needs of energy producers, with the burden largely being born by the United States rail transportation network. Large volumes of crude oil are carried through the United States by train from production points, such as the Bakken Formation in North Dakota, to refinery locations throughout the country. This market phenomenon has created risks to health and safety from crude-train derailments, which often result in large explosions that cause harm to persons and property.

The threat of crude train derailments has also placed pressure on the legal system to respond and adapt to new safety concerns. Specifically, the dispersive structure of the crude-by-rail industry, which involves the combined efforts of multiple different actors, has caused confusion about the source of liability in the event of derailments. Additionally, the effect of federal preemption of state law causes of action relating to rail safety and hazardous materials transportation has caused confusion about the possibility for plaintiff recovery in the event of injury from a crude train derailment. In part to clarify the uncertain legal terrain for crude-by-rail transportation, the United States Department of Transportation recently enacted a comprehensive suite of regulations to govern all aspects of the crude-by-rail industry, ranging from crude oil labeling and packaging, train speed limits, train braking standards, tank car equipment specifications, and crude oil chemical testing and reporting.

This Comment argues that recently enacted United States Department of Transportation regulations help clarify liability in the event of a crude train derailment by creating and enhancing standards of care for which industry actors must comply. Additionally, this Comment argues that the increased standards of care created by the new United States Department of Transportation regulations modestly increase the chances for plaintiff recovery. Finally, this Comment argues that, despite the increased standards of care created by the new regulations, plaintiffs will continue to face a difficult environment for recovery given the effects of federal preemption of state law causes of action, thus typically limiting recovery to instances of negligence per se. This Comment concludes by considering the questions that courts will ultimately be required to answer in an effort to delineate the contours of federal preemption of state law causes of action relating to crude-train derailments.