The laws of most states unconditionally purge a testamentary gift to an individual who serves as an attesting witness to the will. Under this approach, the will is valid despite the presence of an interested witness, but the witness forfeits all, some, or none of her gift, depending on the particularities of state law. While the outcome of the interested witness’s gift varies amongst the states that adhere to this majority approach, the determination of what the interested witnesses can retain is the same. The only consideration is whether the beneficiary is also a witness; whether her gift is purged is conditioned on nothing else.

This Article illuminates a substantial, yet largely overlooked, minority approach to the purging of wills–an approach that, contrary to the majority approach, conditions a testamentary gift on considerations other than simply whether the beneficiary served as an attesting witness. This conditional approach to purging is of three types. First, some states condition an interested witness’s gift on considerations related to the testator’s subjective intent. Second, other states condition the purging of testamentary gifts on procedural considerations regarding how the testator executed the will or how the will was proven at probate. Finally, one state conditions gifts to an interested witness on considerations concerning the substance of the gift.

While generally ignored by legal scholars, conditional purging of wills has steadily grown in favor among policymakers, with ten states now following this approach, including California and Texas. Given state legislators’ increasing appetite for conditional purging, a critical analysis of this minority approach is needed now, more than ever, to ensure that conditional purging statutes are founded upon sound policy considerations. To meet this need, this Article analyzes conditional purging statutes in light of the law of will’s overarching goal of accurately and efficiently carrying out the testator’s intended estate plan.

Ultimately, this Article argues that this minority trend is largely misguided because existing conditional purging statutes (1) do not protect the testator from wrongdoing aimed at undermining her intent, (2) make the probate court’s task of administering the decedent’s estate less efficient, and (3) have proven difficult for policymakers to clearly draft and for probate courts to predictably implement. State policymakers should therefore either adhere to the majority approach or more carefully tailor conditional purging statutes to further the policy goals of the law of wills.

Mark Glover *

* Professor of Law, University of Wyoming College of Law.

Recent events have shone a light on the particular vulnerability of people with dementia to police violence. Police are arresting people with dementia and using excessive force to do it—drawing their firearms, deploying tasers, and breaking bones.

To date, little attention has been paid to the burgeoning number of people with dementia, one of society’s most vulnerable populations, and their experiences with the criminal justice system. This Article examines how dementia leads people to engage in activity that appears criminal (shoplifting (forgetting to pay), and trespass (wandering), for instance) and the disproportionate response of police. In several cases where people with dementia (PWDs) have committed “crimes” as a result of their condition, police have misread confusion for defiance and used excessive force. These cases display a pattern of police conduct consistent with the “warrior model” of policing—one that undermines the relationship between police and the community, makes police see obvious symptoms of dementia as rebelliousness, and encourages the unnecessary use of force. This model is at odds with how the public sees the role of the police. These cases provide another reason that the “guardian model” of policing should be adopted instead. As with so many other instances of police brutality against marginalized and minority populations, the warrior model contributes to police violence and impedes the adoption of new ways of policing. The calls for police reform should not ignore this population, who not only deserve our particular respect but are also the among the most fragile and vulnerable.

Rashmi Goel *

* Associate Professor, Sturm College of Law, University of Denver.

Recently, the Texas Supreme Court breathed new life into some ancient zombies—zombie precedents, that is!—which have long lurked in the shadows of the nation’s partnership formation caselaw. This Article tells the story of those undead cases—describing them, debunking them, and plotting their demise.

This zombie tale begins with the supposed black-letter law of partnership formation. In nearly every state, formation of a general partnership is governed by one of two uniform partnership acts. Under both acts, a business relationship ripens into a partnership whenever the statutory definition of partnership is satisfied. The parties’ intent to become “partners” (or not) is always, either explicitly or implicitly, one of the required elements of this definition. However, a storied line of cases holds—and the more recent uniform partnership act explicitly states—that the parties’ subjective intent to be partners (or not) is not dispositive as to formation. Therefore, law students learn as “settled law” that two parties cannot avoid formation of a partnership simply by signing a contract not to be partners. If the two parties’ business relationship satisfies the elements of partnership as a factual matter, the supposed “black-letter law” dictates that the two parties have formed an inadvertent partnership, even if they previously agreed not to become partners.

Thing is, the caselaw was never really settled. In fact, an even more ancient—but far less famous—line of cases holds that the parties’ intent not to form a partnership is dispositive as between themselves. Further, from time to time courts have mistakenly given effect to parties’ agreements not to be partners without even considering the applicable partnership statute. Both types of cases appear in some modern treatises but have largely escaped scholarly attention because they are directly at odds with the uniform statutes.

This Article finally brings the obscure, subjective-intent line of cases out of the shadows and gives them a close review. After briefly describing the ancient line of cases and the uniform partnership
acts, this Article concludes that the latter were enacted (in part) to eliminate the former. Yet, modern courts unwittingly continue to cite the old subjective intent cases, as well as the cases that simply ignore partnership law—occasionally allowing parties to contract around partnership as a matter of law. Hence, the subjective-intent cases are zombies—killed by the uniform acts, but still wandering the treatises, upending partnership law.

Two years ago, the Texas Supreme Court faced a case that pitted the two lines of cases—one famous, one forgotten—against each other. It all began with a massive, highly publicized jury’s verdict that two energy companies had formed a joint venture (a form of partnership) despite initially agreeing not to do so unless and until their boards approved (which never happened). Subsequently, an appellate court overturned the verdict and held that the parties contracted around partnership formation as a matter of law; the Texas Supreme Court later upheld the reversal. This erroneous decision could revitalize the undead subjective-intent cases, sending them on a nationwide rampage to destroy inadvertent partnership formation.

The only way to destroy a zombie is to obliterate its brain. In this case, the “brain” of the subjective-intent cases—i.e., what animates them—is the failure of legal research websites to recognize their death at the hands of the uniform partnership acts. Accordingly, the next court to address the issue of whether parties can contact around partnership should describe these cases as abrogated, thereby marking them with a red flag. Squarely repudiating the subjective-intent cases will effectively blow those ancient zombies to smithereens.

Joseph K. Leahy *

* Professor of Law, South Texas College of Law—Houston.

In a substantial minority of states, wealthy and powerful individuals can, without much consequence, bring defamation lawsuits against the press and concerned citizens to silence and intimidate them. These lawsuits, known as “strategic lawsuits against public participation” (“SLAPP”s), are brought not to compensate a wrongfully injured person, but rather to discourage the defendants from exercising their First Amendment rights. In other words, when well resourced individuals feel disrespected by public criticism, they sometimes sue the media or concerned citizens, forcing these speakers to defend themselves in exorbitantly expensive defamation actions. In states without anti-SLAPP statutes—statutes aimed at protecting speakers from these chilling lawsuits—these cases can take months, and sometimes years, to resolve. The result is that speakers—those targeted by the lawsuits and otherwise—will be less inclined to criticize the plaintiff in the future, lest they face a devastatingly burdensome and drawn-out (albeit not meritorious) defamation lawsuit.

Even in the thirty-two states that have passed anti-SLAPP statutes, the statutory regimes widely vary. For instance, anti-SLAPP statutes in some populous states like Florida and, until recently, New York are not particularly helpful to the media because they only apply in limited contexts, such as citizens being sued for their comments at public meetings. Other anti-SLAPP statutes, like Virginia’s, lack procedural mechanisms that would require a plaintiff whose lawsuit has been declared a SLAPP to pay the defendants’ legal fees. As a result of these and other differences in anti-SLAPP regimes, plaintiffs strategically forum shop when deciding where to bring their defamation lawsuits, choosing jurisdictions with less protections for defendants whenever possible. However, even where an action is brought in a jurisdiction that does provide strong anti-SLAPP protections, federal courts are split on whether anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure. Consequently, it is currently unclear whether such statutes can be applied in federal cases at all.

Because anti-SLAPP statues are needed to ensure that the public can exercise their First Amendment rights and freely exchange information of public interest, it is vital to fill the gaps that the current statutory regimes have created. In exploring the current legislative landscape, this Article will consider methods for protecting citizens’ First Amendment rights to speak on issues of public interest, such as urging state and federal governments to pass broad anti-SLAPP legislation. In so doing, this Article will suggest specific tools and language that should be incorporated into a federal anti-SLAPP law. Indeed, to date, no federal anti-SLAPP statute has ever been enacted. This Article seeks to change that by outlining provisions for a potential federal anti-SLAPP statute and exploring the benefits and value that enacting strong anti-SLAPP legislation on both the federal and state levels could have on protecting First Amendment rights.

Nicole J. Ligon *

* Visiting Professor of Law at Campbell University Norman Adrian Wiggins School of Law.

On April 6, 2018, the Trump administration announced a “zero tolerance” policy for individuals who crossed the U.S. border illegally. As part of this policy, the administration prosecuted parents with minor children for unlawful entry; previous administrations generally placed families in civil removal proceedings. Since U.S. law does not allow children to be held in immigration detention facilities pending their parents’ prosecution, the new policy caused thousands of children to be separated from their parents. Hundreds of families have yet to be reunited.

Despite a consensus that the family separation policy was cruel and ineffective, there has been minimal focus on the attorneys who implemented it. One exception is Professor Bradley Wendel, who recently defended border prosecutors for following the zero-tolerance policy rather than pursuing their own conceptions of the public interest. Since immigration is not the only context in which prosecutors’ charging decisions may have the effect of separating families, the question of prosecutors’ ethical responsibilities in these situations continues to be of paramount importance.

This Article contends that prosecutors, as ministers of justice, should consider their charging decisions’ effects on children and families. Because of limited resources and opportunity costs, prosecutors cannot pursue every criminal misdemeanor and inevitably take the public interest into account in making charging decisions. The Trump administration’s “zero-tolerance” policy may have limited prosecutors’ discretion but did not eliminate it. Prevailing prosecutorial standards recognize prosecutors’ broad charging discretion but focus predominately on culpability in individual cases. Prosecutors should instead seek justice for the situation, which could include declining to prosecute nonviolent misdemeanors to keep families intact.

Milan Markovic *

* Professor of Law & Presidential Impact Fellow, Texas A&M University School of Law.

The earliest trade secret cases recognized that remembered information raised unique issues in trade secret misappropriation claims. However, courts struggled with exactly how to address remembered information, as opposed to information taken in tangible form. The modern trend, according to one case from the Washington Supreme Court, is to ignore the distinction and treat remembered information the same as information taken in tangible form for purposes of trade secret misappropriation claims. However, this case may have prematurely signaled the demise of remembered information’s relevance to a trade secret claim. Particularly during the pandemic era, where increased employee mobility is placing new pressure on existing trade secret law, the issue of remembered information is of increasing importance. This Article discusses the historical development of trade secret law with respect to remembered information and suggests the continued importance of the distinction between information taken in tangible form and that taken solely in memory.

Timothy E. Murphy *

* Assistant Professor at University of Idaho College of Law.