The federal estate tax is in abeyance this year. The popular press has picked up on the possibility that the estates of billionaires such as the late George Steinbrenner, who owned the New York Yankees, will escape the tax. The House Ways and Means Committee, chaired by Representative Sander Levin of Michigan, and the Senate Finance Committee, chaired by Senator Max Baucus of Montana, are now considering two questions: what the maximum rate and exemption will be when the estate tax returns and whether the tax will be reinstated for this year. Lurking behind the headlines but equally important is another tax, the federal generation-skipping transfer tax ("GST Tax"), which is also in abeyance this year.

In 1986, the 99th Congress passed the GST Tax in order to supplement the federal estate and gift taxes. When private wealth shifts from generation to generation or bypasses a generation without incurring federal estate or gift taxes, the GST Tax fills that void.

The 99th Congress included a provision known as the GST Exemption when it passed the GST Tax. The GST Exemption allows trust settlors to create trusts without incurring GST Tax. The maximum amount originally exempted was $1 million (or $2 million for a married couple), but over time Congress increased the maximum to $3.5 million (or $7 million for a married couple).

When the 99th Congress fashioned the GST Exemption, state perpetuity law controlled the duration of private trusts. State perpetuity law was then undergoing reform, but the reforms retained the basic durational limit that has been part of Anglo-American law for centuries. Presumably relying on the states to honor that tradition, the 99th Congress did not impose a federal durational limit on trusts that qualify for the GST Exemption.

With federal law out of the way, the only law blocking a tax exemption for perpetual trusts was state perpetuity law, but that obstacle soon crumbled. As a result of interstate competition for trust business, the state-law perpetuity landscape changed dramatically. The absence of a durational limit on the GST Exemption spawned a movement in the states to repeal or modify state perpetuity rules to allow trust settlors to create trusts that can last forever or for several centuries. It is now well-documented that the wealthy are creating GST-exempt perpetual or near-perpetual trusts in large numbers in these trust-friendly states. Considerable private wealth is pouring into GST-exempt trusts from out-of-state settlors, thereby escaping federal transfer taxation for centuries and in some cases forever. The loss of tax revenue will become more acute as time passes.

The 111^th Congress now has a perfect opportunity to close the loophole in the GST Exemption. The 2010 tax bill is still being finalized. Congress should adopt a durational limit that is calibrated to the generations-based policy of the GST Tax. A few years ago, the Staff of the Joint Committee on Taxation wisely proposed a two-generation limit. Under the Staff proposal, a trust would not qualify for the exemption if it can continue beyond the death of the youngest beneficiary who is no more than two generations younger than the trust settlor. A less-intrusive approach, but one that would delay raising revenue, would be to provide that a trust initially qualifies for the exemption but loses its exemption once the youngest beneficiary who is no more than two generations younger than the trust settlor passes away. Either approach would put a halt to the ill-advised perpetual or near-perpetual trust movement and the unwarranted loss of tax revenue that is now occurring. Unless and until Congress acts to stop them, trust settlors will continue to pour private wealth into GST-exempt perpetual or near-perpetual trusts this year, next year, the year after, and every future year, more and more states will modify their perpetuity rule to encourage them to do so, and more and more trust companies will move to or open offices in perpetual-trust-friendly states in order to offer and promote perpetual trusts.

Although Citizens United has been roundly criticized for its potential effect on elections and its display of judicial immodesty (or "activism"), the effect of the case which may be both most profound and perhaps most pernicious is its effect on the commercial speech doctrine. This is an aspect of the case which has been largely overlooked. Most people seem to be unaware of any connection between election law and the commercial speech doctrine-except, that is, those who have been working long and hard to accomplish the change it foreshadows. They are keenly aware of its implications.

The Supreme Court recently handed down its decision in Graham v. Florida. The case involved a juvenile, Graham, who was sentenced to life in prison after being convicted as an adult of a nonhomicidal crime. The offense, a home invasion robbery, was his second; the first was attempted robbery. Due to Florida's abolition of parole, the judge's imposition of a life sentence meant that Graham was constructively sentenced to life without parole for a nonhomicide crime. Graham challenged this sentence as unconstitutional under the Eighth Amendment.

Somewhat surprisingly, the Supreme Court invalidated Graham's sentence by a 6-3 majority. By a 5-4 majority, the Court declared the practice of sentencing juveniles to life without parole for nonhomicide crimes categorically unconstitutional under the Eighth Amendment's Cruel and Unusual Punishment Clause. Chief Justice Roberts was the lone crossover vote; he agreed that the sentence in Graham's particular case violated the Eighth Amendment, but was unwilling to declare such sentences categorically unconstitutional. Otherwise, the case was split along the traditional ideological lines, with Justice Kennedy playing his usual role as the swing vote. What makes the result in this case unusual is that the Court seems to have made a significant break from its past jurisprudence on sentencing. In fact, Graham may have completely altered the landscape of the Court's Eighth Amendment jurisprudence. While the old approach was summed up by the adage "death is different," the new approach may be that "kids are different." In addition, the Court may have exposed itself to a whole host of difficult sentencing issues down the line.

The Lacey Act was first enacted in 1900 as a narrow measure for domestic bird preservation and agriculture protection. It was significantly amended in 1981 and 1988 to prohibit trafficking in fish and wildlife "taken, possessed, transported, or sold" in violation of state and foreign laws. For the past three decades, the amended statute has provided the federal government with a powerful tool for regulating imports of fish and wildlife. In 2008 Congress expanded its reach still further, responding to widespread concern about the effects of illegal logging on local governance, the environment, and American business by extending the Act's protections to imported plants.

The Lacey Act's penalty provision imposes both civil and criminal liability for wildlife trafficking. At its most stringent, the Act imposes felony liability on those who "knowingly" import fish and wildlife harvested in violation of foreign laws. Importers and subsequent purchasers of imports who fail to exercise "due care" in determining whether their products are legal may be subject to misdemeanor liability or civil penalties. The due care standard, which originated in the 1981 amendments, is now almost three decades old, yet key differences exist between companies in the timber market and the business enterprises whose operations were traditionally regulated under the Lacey Act's fish and wildlife provisions. These differences limit the applicability of the few existing precedents that have interpreted and applied this standard.

A response to Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 462 (2010).

Crediting the perception that the Constitution is a poorly cut puzzle whose variously configured pieces don't match, Nelson Tebbe and Robert Tsai propose that the stand-alone parts of freedom and equality can be merged and mutually enlarged through the act of borrowing. They are mistaken. While Thomas Jefferson wrote that ideas may be appropriated without being diminished and so "freely spread from one to another over the globe," the equality and freedom the Constitution addresses as actualities are constrained by a basic, familiar, and inescapable rule of financial accounting. Just as assets and liabilities must be in balance, freedoms are only acquired at the exacting expense of equality; no amount of borrowing can alter the equation. While as a matter of principle we are all equally entitled to be "let alone," this "most comprehensive right . . . the right most valued by civilized men," is not a one-size-fits-all proposition. While "the poorest man in his cottage" and the richest man in his mansion may both "bid defiance to all the forces of the Crown," the amount of privacy they enjoy as a matter of fact is incomparable. The privacy enjoyed by those unable to afford lodgings of any kind and forced to take refuge in their cars is further diminished as a matter of law, while the "homeless" sleeping out of doors and exposed to the elements enjoy no expectation of privacy apart from what they manage to secure in duffle bags. The Court's express rejection of the claim that the "‘need for decent shelter' and the ‘right to retain peaceful possession of one's home' are fundamental interests which are particularly important to the poor"-like its assertion that education is not a "fundamental right"-follows from the proposition that laws "having different effects on the wealthy and the poor" are not unconstitutional, and from the consequence of that proposition: that the freedoms most valued by Americans are for purchase. The wealthier the man, the more unequal the share he can afford.

In our article, Negligence and Insufficient Activity, we proposed that tort scholarship has overlooked the risk that injurers will behave strategically in setting their activity levels. Whereas the standard literature has predicted that injurers who are subject to a negligence regime will often invest efficiently in care but choose excessive activity levels, we showed that they may do exactly the opposite: injurers may deliberately restrict their activity to avoid investments in socially desirable precaution. After reviewing the conditions that may give rise to the risk of insufficient activity, we examined the ways in which the legal system can minimize the costs of such behavior. We hoped that our article would spark new interest in the interplay between tort liability and levels of care and activity. We are fortunate that three prominent tort scholars have already provided important insights on both our positive argument and our policy recommendations.

These responses vary in their assessments of our contribution to legal scholarship. While some find that our article addresses an "interesting omission in tort law scholarship" and highlights a "missing paradigm" that is "central to negligence doctrine," others consider it a "novel brick on a road that runs in the wrong direction." Nevertheless, and although the responses focus on different parts of the article, they share several important objections to our analysis.

A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009).

Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the cases embrace as "a window into the commonalities, if any, between statutory and constitutional interpretation." But Manning's overly programmatic approach does not so much open this portal as close it shut. His insistence that legislative acts and the Constitution are alike is impossible to square with the theory of our written constitution that has prevailed ever since John Marshall and Alexander Hamilton first propounded it: that the acts of a superior must trump those of every inferior authority.

A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009).

In Negligence and Insufficient Activity: The Missing Paradigm in Torts, David Gilo and Ehud Guttel argue that negligence law encourages inefficiently high and low levels of activity because negligence law ordinarily does not take activity levels into account. They suggest that the law should impose liability for failing to take safety precautions-even where precautions would not be cost-justified-whenever the threat of this liability negates the incentive for an actor to choose an insufficient level of activity. Until now, the literature on the interaction between liability standards and activity levels has failed to recognize the possibility of inefficiently insufficient activity. I commend Gilo and Guttel for both their insight and their explication of it.

A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009).

Professors David Gilo and Ehud Guttel have written an important article on the tendency of the negligence rule to produce inefficiently low activity levels. In Negligence and Insufficient Activity: The Missing Paradigm in Torts, the authors claim insufficient activity to be the "missing paradigm" in tort theory. Although I agree with Gilo and Guttel that this missing paradigm is central to negligence doctrine, I disagree with them about how insufficient activity levels arise.

A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich. L. Rev. 277 (2009).

Within the law and economics field, there often surfaces a near hypnotic attraction to the Hand formula as the one and only tool that drives tort law toward economic efficiency. Hand's intuition was, of course, that the test for efficiency requires a balancing of three variables. The burden of taking particular precautions is compared to the expected loss from some activity, which in turn consists of the likelihood of some particular harm multiplied by its anticipated severity. Liability attaches only where the burden of precautions is lower than the anticipated accident costs. By forcing cost-effective precautions and no others on potential tortfeasors, so the story goes, tort law weeds out desirable from undesirable conduct.

A Response to Ariel Porat, Private Production of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. (2009).

One of the more intriguing questions in tort law is the case of joint and several tortfeasors and the dilution-of-liability puzzle. When harm materializes and there are multiple potential tortfeasors, the law tends to limit the number of joint tortfeasors, focusing the final burden on a small number of actors. This limitation is achieved by several legal mechanisms, such as a no duty rule, a narrow interpretation of negligence, a restrictive implementation of the causal link (be it the but for test, the proximate cause test or the rule of intervening cause test), and a doctrine of remoteness of damage. Thus, in the typical accident example, if A, B, and C inflicted risk upon D, often times the tort system will filter out A and B and leave only C to carry the final burden. Ariel Porat's outline of the Expanded Duty of Restitution in his article, Private Production of Public Goods: Liability for Unrequested Benefits, provides an interesting and provocative solution to the dilution of liability puzzle.