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Articles 1 - 16 of 16
Full-Text Articles in Law
Honoring Probable Intent In Intestacy: An Empirical Assessment Of The Default Rules And The Modern Family, Danaya C. Wright, Beth Sterner
Honoring Probable Intent In Intestacy: An Empirical Assessment Of The Default Rules And The Modern Family, Danaya C. Wright, Beth Sterner
Danaya C. Wright
This article provides preliminary analysis of an empirical study of nearly 500 wills probated in Alachua and Escambia Counties in the State of Florida in 2013. The particular focus of the study is to determine if there are noticeable patterns of property distribution preferences among decedents based on their diverse family relationships. Earlier empirical studies of distribution preferences indicated that a majority of married decedents wanted to give all or most of their estates to their surviving spouses. As a result of these studies, most states amended their probate codes to give surviving spouses a sizable percentage of a decedent …
Inheritance Equity: Reforming The Inheritance Penalties Facing Children In Non-Traditional Families, Danaya C. Wright
Inheritance Equity: Reforming The Inheritance Penalties Facing Children In Non-Traditional Families, Danaya C. Wright
Danaya C. Wright
This Article examines how more than 50% of children living today may be disadvantaged by 1950s era inheritance laws that privilege and protect only those children living in nuclear families with their biological parents. Because so many children today are living in blended families — single-parent families, lesbian, gay, bisexual, transgender, or queer/questioning (LGBTQ) families, or are living with relatives — their right to inherit from the persons who function as their parents are severely limited by most state probate codes, even though they would likely be entitled to child support under the parent-child definitions of most of those states' …
Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright
Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright
Danaya C. Wright
Historians of Anglo-American family law consider 1857 as a turning point in the development of modern family law and the first big step in the breakdown of coverture and the recognition of women's legal rights. In 1857, The United Kingdom Parliament ("Parliament") created a new civil court to handle all divorce and matrimonial causes, removing the jurisdiction of: the ecclesiastical courts over marital validity; the Chancery over custody of children and separate estates; the royal courts over marital property; and Parliament over full divorce. The new Divorce and Matrimonial Causes Court, a wing of the admiralty and probate courts, would …
A Requiem For Regulatory Takings: Reclaiming Eminent Domain For Constitutional Property Claims, Danaya C. Wright
A Requiem For Regulatory Takings: Reclaiming Eminent Domain For Constitutional Property Claims, Danaya C. Wright
Danaya C. Wright
For the past forty years, the United States Supreme Court has embraced the doctrine of regulatory takings, despite being unable to provide any coherent and reliable guidance on when a regulation goes so far as to require compensation. But Justice Thomas's admission in Murr v. Wisconsin (2017) that there is no real historical basis for the Court's regulatory takings jurisprudence offers a chance to reconsider the doctrine anew. Looking back to Justice Holmes's prophetic statement in Pennsylvania Coal Co. v. Mahon, that a regulation can go too far and require an exercise of eminent domain to sustain it, I argue …
Doing A Double Take: Rail-Trail Takings Litigation In The Post-Brandt Trust Era, Danaya C. Wright
Doing A Double Take: Rail-Trail Takings Litigation In The Post-Brandt Trust Era, Danaya C. Wright
Danaya C. Wright
After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW …
Reliance Interests And Takings Liability For Rail-Trail Conversions: Marvin M. Brandt Revocable Trust V. United States, Danaya C. Wright
Reliance Interests And Takings Liability For Rail-Trail Conversions: Marvin M. Brandt Revocable Trust V. United States, Danaya C. Wright
Danaya C. Wright
On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case,Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, "[t]he right of way [200 feet wide] through the public lands of the United States." The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over 94 …
Theorizing History: Separate Spheres, The Public/Private Binary And A New Analytic For Family Law History, Danaya C. Wright
Theorizing History: Separate Spheres, The Public/Private Binary And A New Analytic For Family Law History, Danaya C. Wright
Danaya C. Wright
There is an extensive scholarship on separate spheres, the public/private binary, and family history that reveals a nuanced understanding of the interconnections and constructedness of these metaphors and rubrics traditionally used in family law history. In exploring the current understandings and limitations of these subjects as analytics for doing my own history of English family law, I turn to Michelle Zimbalist Rosaldo’s critique that we limit our subjects and reinforce power differentials when we use a lens of difference in our scholarship. I first explore the lessons learned about the enduring nature of separate spheres and the power imbalances of …
New Era Of Lavish Land Grants: Taking Public Property For Private Use And Brandt Revocable Trust V. United States, Danaya C. Wright
New Era Of Lavish Land Grants: Taking Public Property For Private Use And Brandt Revocable Trust V. United States, Danaya C. Wright
Danaya C. Wright
J.R. Pole's new book, Contract and Consent: Representation and the Jury in Anglo-American Legal History, is a delightful romp through centuries of Anglo-American history, law, and political theory. It would be better titled Contract, Consent, Juries, Sovereignty, and the State: A History of the Anglicization of Western Political Ideas. But in any event, this delightful set of essays, some more closely linked together than others, spans a breathtaking set of ideas--from sovereignty to the social compact to slavery to the moral agency of juries--through a breathtaking set of sources--from Slade's Case to Shakespeare to Aquinas to Faust to the Federalists--with …
Eminent Domain, Exactions, And Railbanking: Can Recreational Trails Survive The Court’S Fifth Amendment Takings Jurisprudence, Danaya C. Wright
Eminent Domain, Exactions, And Railbanking: Can Recreational Trails Survive The Court’S Fifth Amendment Takings Jurisprudence, Danaya C. Wright
Danaya C. Wright
This article attempts to locate the legal aspects of recreational trail development within the increasingly powerful property rights movement. The most complex result of this rising property rights rhetoric is a clear shift in constitutional takings doctrine to be more sympathetic to landowners' arguments. Thus, the interplay of takings decisions and trails development will be the focus of most of this article. Part II provides a brief account of the legal structure of governmental land use controls and the current state of takings jurisprudence to form a basic background for the different ways in which recreational trails have been developed. …
A New Time For Denominators - Toward A Dynamic Theory Of Property In The Regulatory Takings Relevant Parcel Analysis, Danaya C. Wright
A New Time For Denominators - Toward A Dynamic Theory Of Property In The Regulatory Takings Relevant Parcel Analysis, Danaya C. Wright
Danaya C. Wright
This Article explores the question of how the courts should calculate the denominator in the just compensation equation. The denominator is the amount of property a claimant owns, against which the effects of regulation will be measured. If a landowner owns a single acre that is severely regulated, the takings fraction for the amount of property taken compared to that owned will approach one. If, on the other hand, the landowner owns 100 acres and only one is regulated, the amount of harm is only 1% in comparison to the total amount owned. This Article advocates a paradigm shift in …
The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright
The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright
Danaya C. Wright
The U.S. Supreme Court's June 2003 decision in Lawrence v. Texas may prove to be one of the most important civil rights cases of the twenty-first century. It may do for gay and lesbian people what Brown v. Board of Education did for African-Americans and Roe v. Wade did for women. While I certainly hope so, my enthusiasm is tempered by the fact that discrimination on the basis of race or gender has not disappeared. Will Lawrence signal meaningful change, or will its revolutionary possibilities be stifled by endless cycles of excuse and redefinition? The case is important, but I …
"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright
"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright
Danaya C. Wright
In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and …
Collapsing Liberalism's Public/Private Divide: Voldemort's War On The Family, Danaya C. Wright
Collapsing Liberalism's Public/Private Divide: Voldemort's War On The Family, Danaya C. Wright
Danaya C. Wright
As a legal scholar setting out to explore themes of law in Harry Potter, I am acutely aware of the absence of family law conflicts in these different family structures and relationships. Rowling's obvious fascination with different family structures and her relatively strong sense of an isolated, private sphere that is free of state intervention seems in keeping with traditional liberal values of the public/private divide. Yet her rejection of state interference in the private sphere of the family does not correspond to an autonomous state that is focused on the public sphere. Where liberalism separates the private world of …
Foreword: Toward A Multicultural Theory Of Property Rights, Danaya C. Wright
Foreword: Toward A Multicultural Theory Of Property Rights, Danaya C. Wright
Danaya C. Wright
This panel, sponsored by the Minority group and Property Sections of the AALS for the January, 2000 annual meeting, was composed of an exciting group of scholars critically analyzing traditional theories of property and current distribution of resources. The panel, entitled "Reviewing the Legacy of Liberalism: Life, Liberty, and the Pursuit of Happiness -- Linking Property to Rights," challenged traditional notions of property rights, from a discussion of the gender implications of African property law, to a critique of traditional analyses of Johnson v. M'Intosh, to property as heteronormative. Because the articles provide so much rich and thought-provoking material, …
The Shifting Sands Of Property Rights, Federal Railroad Grants, And Economic History: Hash V. United States And The Threat To Rail-Trail Conversions, Danaya C. Wright
The Shifting Sands Of Property Rights, Federal Railroad Grants, And Economic History: Hash V. United States And The Threat To Rail-Trail Conversions, Danaya C. Wright
Danaya C. Wright
This Article is an analysis of a federal circuit case from 2005 that has spawned some disturbing precedents in the area of federal transportation and railbanking policy. Specifically, the National Trails System Act (NTSA) provides a mechanism for preserving unused railroad corridors for future reactivation while allowing interim recreational trail and mixed utiity use along the corridor. Converting rail corridors to recreational trails is a very popular process and communities across the country are demanding more and more conversions, as people seek the amenities of linear parks and greenways. Hash v. United States, however, deals with the property rights underlying …
The Legacy Of Colonialism: Law And Women's Rights In India, Varsha Chitnis, Danaya C. Wright
The Legacy Of Colonialism: Law And Women's Rights In India, Varsha Chitnis, Danaya C. Wright
Danaya C. Wright
The relationship between nineteenth century England and colonial India was complex in terms of negotiating the different constituencies that claimed an interest in the economic and moral development of the colonies. After India became subject to the sovereignty of the English Monarchy in 1858, its future became indelibly linked with that of England's, yet India's own unique history and culture meant that many of the reforms the colonialists set out to undertake worked out differently than they anticipated. In particular, the colonial ambition of civilizing the barbaric native Indian male underlay many of the legal reforms attempted in the nearly …