Past and Present: The Dialectics of Property: An Essay in Honor of Gregory Alexander

Cornell Journal of Law and Public Policy Cornell Journal of Law and Public Policy

Volume 29 Issue 3 Spring 2020

Article 6

Past and Present: The Dialectics of Property: An Essay in Honor Past and Present: The Dialectics of Property: An Essay in Honor

of Gregory Alexander of Gregory Alexander

Shelly Kreiczer-Levy Ramat Gan College of Law & Business

Part of the Law and Society Commons, and the Property Law and Real Estate Commons

AN ESSAY IN HONOR OF PROFESSOR GREGORY ALEXANDER

PAST AND PRESENT: THE DIALECTICS OF PROPERTY

Shelly Kreiczer-Levy*

This Essay explores the dialectic between stability and dynamism in property, inspired by the work of Gregory Alexander. Its focus is inheritance law and the conflicting commitments between the past and the present. Inheritance contributes an added layer of complexity to the familiar dialectic. It complicates the tension between communities and individualism and adds a dialectic between a commitment to past values, tradition and customs and a commitment to individual values and a fresh voice. This complexity advances a double, contradictory meaning of current inheritance rules. On the one hand, testamentary freedom symbolizes individualism and dynamism, because it provides owners with the freedom to choose their beneficiaries, free from traditional expectations. On the other hand, adherence to the wishes of past owners represents stability and respect for the past generations, and restrains the free use of successors. This double dialectic serves as the framework for analyzing inheritance law dilemmas.

A. 611 B. The Double Dialectic of Inheritance................. 614 C. 615 619

Interpreting the Dialectic ...........................

607 609

There are those who search for property's core and attempt to articulate the most important feature of property as a legal concept.' Others

see property as a pluralist concept, encompassing a number of values.2 Alongside this theoretical and normative debate, Prof. Gregory Alexander reveals another approach, understanding property as a (partly) dialectic concept. Property is a social institution that embodies conflicting commitments: between the self and other people,3 the past and the future,4 dominance and governance.5 One of the larger, most important themes of Alexander's work is the dialectic between stability and dynamism in property law and in the history of property. The concept of property both promotes and undercuts stability. It promotes stability because property is a facilitator of relationships, a platform for communal activities, and a symbol of the current consensus. Property also undercuts stability as it supports independence from community, and the ability to relocate, grow and change. At the core of property lies this persistent dialectic, a dual quality of both stable commitment and individual opportunities to grow.

While this theme emerges in Alexander's work in various contexts, this Essay develops and critiques one particular aspect of this dialectic: the conflicting commitments to the past and the present, or in other words, stability and dynamism in inheritance law. Alexander's work on inheritance has always been an important source of inspiration for me. Although this Essay engages with several of his articles, its focus is Alexander's work on intergenerational communities and human flourishing.6

The stability-dynamism dialectic in inheritance concerns the conflicting commitment to past generations and to present generations. Honoring the wishes of previous generations respects the past, including past convictions, values, set of beliefs and the conditions of the property. However, this respect burdens the current generation, inhibits change and growth, and restrict new uses of the property. Restraints on property delivered from one generation to the next clearly reflect this burden. This problem is often referred to as an embedded tension between the powers of donors and donees.7 Thinking about it as a dialectic between

stability and continuity on the one hand, and flexibility and dynamism on the other hand, provides a fresh perspective for analysis.

This Essay develops and critiques the dialectic as it appears in AlexI argue that there are ander's work on intergenerational communities. two conflicting understandings of this dialectic in intergenerational communities. According to the first understanding, family protection reflects a commitment to stability, while testamentary freedom indicates dynamism and the ability to reinterpret relationships and life projects. The second understanding, however, positions testamentary freedom as a reflection of stability. When it comes to restraints on property use, adherence to the testator's plans for the property reflects a commitment to past generation's values. Free, uninhibited use of property is an example of dynamism. I analyze the principles Alexander offers in this work following this dual perspective, and propose we strike a different balance between the past and the present. This balance is based on my earlier work on inheritance, which is inspired by Alexander's work in the field.

The Essay continues as follows. Part I explains the stability-dynamism dialectic in property and focuses in particular on Alexander's work. Part II engages with the tension in intergenerational communities. It develops the unique attributes of inheritance and fleshes out the stability-dynamism dialectic in inheritance law.

I.

Property is a dialectic institution-it is caught between conflicting symbols and commitments.8 Property has a physical presence in the world, thus connecting the individual to a place and a community.9 Communities become stronger when members share a physical space in the neighborhood, the workplace, or the city. Relationship in the community, family or the neighborhood foster stability of location and strong, enduring ties. At the same time, property is also a symbol of freedom and autonomy.10

Because the right holder can freely use and alienate property, it becomes flexible and presents an opportunity to disconnect, relocate, and change environments. People are not as committed to a single location or

to a community and are possibly unattached and unencumbered by relations. Property thus both creates ties and frees from commitment.

Alexander's work on the history of land alienability in American civic republic illustrates this point perfectly. It describes a fierce debate among Republicans on whether freely transferable property would commodify land and on the social implications of this commodification.11 Mobile forms of property support dynamism because people can easily relocate, free from the stable social order, but they also raise an anxiety that relationships will become meaningless. The that "[i]ndividuals would relate to each other as interchangeable buyers or sellers in the marketplace rather than as land-holding neighbors and human beings."12 This dialectic reflects the basic conflict between the self and society. As Alexander explains:

fear was

Stability represented adherence to shared traditions and a sense of one's place in the social order. Dynamism represented individual capacity to break free of stifling social conventions and entrenched hierarchies. Stability and dynamism, tradition and fluidity, embeddedness and uniqueness: though differently articulated, these sets of antinomies reflect cultural anxiety that we can now see as linked together.13

Individualism is thus linked to freedom, autonomy, and dynamism, while communities are associated with stability and tradition. At a higher level of generalization, this same dialectic is evident in the conflicting commitments to the past and the present. The present symbolizes change and dynamism, and attends to current needs, values, and ideas. A commitment to past is associated with customs and traditions, the shared notions of the community over time. Thomas Jefferson's approach to the past, discussed in Alexander's work, clearly prefers the dynamism of the present. According to Jefferson, "each generation is free to create its own social order and is under no constraints from actions taken by past generations."14 Following this strong opinion, Jefferson suggested that the constitution naturally expires at the end of each generation.15

This provocative statement reflects only part of the dialectic of stability and dynamism between the present and the past. When it comes to multigenerational communities, the dialectics become ambivalent and contradictory. The next part considers inheritance, one of the strongest

examples of commitment to the past in our legal system. It fragments this dialectic and articulates its complexity.

A.

Inheritance

Inheritance is a legal field that reflects a commitment to the past. It is not an abstract commitment or a general respect of past laws, customs, and traditions.16 It is a concrete commitment to particular, identifiable individuals. Property owners that have passed away belong to the previous generation and are entitled to decide who will control and use their property after their death.17 This principle reflects the great normative power of testamentary freedom, the ability to execute a will and provide a post-mortem distribution of one's estate, in American jurisprudence.18 Owners are thus responsible for shaping the property landscape of the next generation.

Nonetheless, this conclusion remains true even in legal systems that do not adhere to testamentary freedom. All inheritance systems reflect a commitment to the past, even when testamentary freedom is either limited or even non-existent because the law begins with the owners' nearest relations and thus respects past entitlement.19 As long as the law begins with owners and seeks out their immediate family, the system in itself respects the past. Inheritance law in many legal systems-in fact, all the legal systems that I have encountered in my research-begins with the owner of property or her close and immediate surroundings.20 These sys-

tems promote devolution of property after death either as the continuation of the will of the owner or as rules that connect her to her family, narrowly or broadly defined. Inheritance thus reflects a deep respect for the past, and, more concretely, for individuals in past generations.

These are not the only possible methods for distributing property after death. It is possible to imagine an alternative system that is completely committed to the present generation. This alternative system could hold a raffle or divide the property into small portions and give it to the poor. This disconnection between the owners, the origin of property, and their successors effectively creates a new property distribution with each new generation. It cuts off any connection to the past. Much like Jefferson's proposition that all laws will naturally expire with each passing generation, this type of alternative also creates a clean slate.

Scholars have raised similar clean-slate suggestions regarding inheritance law. Reasons supporting these reforms often include promoting distributive justice. The argument is that inheritance creates unfair advantages in life and impairs the equal opportunity principle of a liberal society.21 In addition, critics have claimed that, unlike ordinary transactions, postmortem transfers do not entail careful deliberation because the owner will not experience the outcomes of her will and will not bear its costs.22

Against these strong contentions, there are also arguments that support inheritance as a legal institution for reasons of efficiency, autonomy, and familial care of the elderly.23 Yet, I suggest that a stronger interpretation of the benefits of inheritance is rooted in stability. Inheritance is a legal and social institution that creates intergenerational continuity and supports a stable connection among individuals of different generations.24

Anthony Kronman advanced an argument in favor of a more abstract version of intergenerational stability. He explains that the world of culture has two important features. The first feature is the cumulative (or potentially cumulative) character of achievements in the world.25 Each generation builds upon the previous generation's achievements. Culture thus enables humanity to take projects that extend the time of individual life. The cumulative value of culture enables us to be part of something that started before us and will continue after us. We are all part of projects that outlive us.

The second feature is that the world of culture is continuously at risk of destruction.26 All artifacts and creations can be deliberately destroyed, they also can lack proper maintenance. Everything in life eventually decomposes. This cycle is part of life. This feature poses a real threat to culture as a whole. The two features together capture the dialectic between stability, whereby generations combine forces to preserve the achievements of the past, and dynamism, whereby current generations focus on new projects and do not tend to previous endeavors.

Kronman's depiction focuses broadly on culture. It does not promote an argument regarding individuals' commitment to stability. Thinking about property and inheritance requires a more specific perspective, looking at individual people's commitment to past owners. Alexander's work discusses a specific obligation, which is distinguishable from a general obligation. The specific obligation concerns a specific project and the obligation of the current generations to continue the projects that were created in the past.27 According to Alexander, the reason for recognizing such an obligation is the natural dependency among generations. Creators of projects depend on succeeding generations to preserve and promote their life-transcending projects.28 From a different perspective, I have previously argued that inheritance promotes continuity through property, and that continuity is an individual good because it "offers individuals a connection to the world of culture, which potentially may transcend their concrete existence."29 Continuity is thus tied with mortality, and can also be understood as an expression of the wider principle of stability: a continued connection of belongingness to a community of the past. Both of these accounts understand inheritance as tied with stability, supported by either dependency or continuity.

B. The Double Dialectic of Inheritance

Inheritance, in various forms and fashions and in different legal systems, is an institution that promotes stability. The inheritance dialectic builds on the common tension in general property law and adds the complexity of commitment to the past. Nonetheless, the differences among various legal rules prove important for the balance between stability and dynamism. The dialectic in inheritance presents contradictory interpretations of stability.

I return to the notion of testamentary freedom, which reflects "the idea that a person has the right to choose who will succeed to things of value left behind at death."30 Testamentary freedom is often perceived as an expression of the owner's autonomy, one that provides the owner the freedom to break free from conventional commitments.31 A testator can be petty, eccentric, and vindictive.32 Family members are not entitled to inherit the estate. The common wisdom is that forced heirship systems value obligations to the family and a strong sense of familial continuity over generations, while testamentary freedom represents the rise of individualism. According to this view, modern rules of property emphasize choice, property rights, and relationships.33 Restraints on testamentary freedom in favor of family members, commonly known as family protection, inhibit individual freedom. They protect the family as a basic economic unit, a social institution, with dynastic components.34 In other words, this analysis characterizes testamentary freedom as an expression of dynamism, lack of commitment to tradition and customs. Family protection, on the other hand, reflects stability and commitment to the past. This is one interpretation. The second interpretation positions testamentary freedom as an example of adherence to the past, and more concretely, to stability. This principle grants owners control of property after their death. The protection of this freedom by the living expresses respect for the preceding generations' wishes and opinions. It reflects a deep commitment to values and perceptions of the past. The problem of the dead hand control illustrates this argument.35 In current American law,

owners are not only free to bequeath their property, but they can also stipulate various conditions and restrain property use of future generations. Through the use of donative trusts, owners can restrict the sale of the property, deny certain types of use, and even direct the beneficiary's personal behavior.36 This vast freedom to control and manipulate the use of property and individuals' behavior manifests a deference to stability, to the values, traditions and beliefs of the previous generations. Limitations on donative freedom, on the other hand, reflect a concern for dynamism and individuality. These limitations make sure that successors will be able to use their property based on their own values and worldviews. Ultimately, then, testamentary freedom supports individualism and dynamism, but also tradition and stability. Protection of successors similarly manifests a concern for stability and support for individual voice. This complexity adds to the traditional dialectic of property a new dimension that focuses on stability as a commitment to the past.

C.

Interpreting the Dialectic

The dialectic creates a dilemma. It uncovers the complexity of commitment to the past, but it does not provide the necessary normative tools for crafting inheritance rules. How does one choose among these conflicting commitments? One approach concludes that it is impossible to decide between the power of the donor and the donee. This is Alexander's position in his work on the dead hand control in the nineteenth century, as far as free alienability is concerned.37 However, his later work on intergenerational communities provides normative guidelines when it comes to complex dilemmas involving conflicting commitment to the past and the present.38

His guidelines begin with the fundamental question: what do we owe past generations? The duty, according to Alexander, is based on dependency. Although dependency is an inherent condition of communities more generally,39 the dependency of intergenerational relations stems from the need to achieve life-transcending projects.40 Alexander explains:

People have interests in having life-transcending projects carried through and realized after their deaths, some-

times many years after their deaths, but obviously they cannot do so themselves. They are dependent upon the living to honor the interest that the dead have in seeing their life-transcending projects continued and realized beyond the death of their creators.41

This concept effectively connects past owners and their successors, and serves to unite, rather than disintegrate the opposing interests. However, the concept raises additional questions. Why are life-transcending projects socially and culturally important? What makes them valuable to their creators? The answer to this puzzle brings us back to stability and continuity. The vulnerability of the human conditions stems from its inherent discontinuity. Individuals' lives have a concrete beginning and end, and are potentially meaningless, especially compared to the evercontinuing world of culture.42 As I have argued before, the need to transcend this limited existence is well documented in a vast array of research from a number of disciplines.43 The problem of a limited existence of individuals explains and gives content to the disconnection between previous and following generations, thus creating the conceptual complication of intergenerational communities. People are supposedly unattached, disconnected individuals. The desire to overcome this disconnection is the reason people search for a connection to the past and the future. The concept of life-transcending projects explains the connection. We now need to explain its value.

Think of Jefferson's call for full emancipation from the past. This disruption has its allure: we can reimagine a world, unencumbered by the commitment to old values and traditions, embodying true dynamism; the complete freedom to search for what is right for our own generation. And yet, we resist this disruption in the search for continuity. Life-transcending projects establish continuity, a connection to the world of culture that transcend our concrete existence.44 Various cultural artifacts, including customs, traditions, art, family and friendship, and also property establish intergenerational continuity.45 This search for continuity is an example of stability, a way to connect to one's past and a way to imagine one's influence on the future. Individuals can thus contribute to

the values, ideas, and symbols of their stable communities and transcend their limited existence.

The nest puzzle becomes the interpretation of continuity-building life-transcending projects. Do projects belong to their creators, and their preservation simply reflects respect for the past, or does it benefit successors as well? Focusing on property related projects, Alexander argues that the obligations to past generations respect the vision of past owners, the donors, because they are dependent on the current generations. They cannot accomplish their projects on their own. Nonetheless, the obligation towards the past has its limits. Ideas that are offensive, impractical or dated do not create a normative duty.46

I suggest a different interpretation. Life-transcending projects are the thread of continuity. Instead of understanding them as belonging to past generations and granting the present generation a duty to respect, we should understand them as joint projects. Indeed, one cannot accomplish continuity alone; continuity requires cooperation. The owner created the project, but the project gains new meaning when the successor uses the property and continues to engage with it. Think of the family business, now owned the founder's children. Without the new use of the business, the project itself will become meaningless. Indeed, the owner depends on the successor to accomplish their goals. However, the successor depends on the owner as well. Successors must continue projects that they did not start, because engaging with these projects symbolizes their connection to the past and their belongingness to intergenerational communities. The children want to inherit the business because it represents their roots. Instead of a clear, one-sided dependency, people found intergenerational communities, I argue, on mutual dependency.47

Characterizing life transcending projects as joint projects is important, as it affects our conception of the stability-dynamism dialectic. Understanding a life transcending project as a reflection of the owner's vision, a one-sided project, prefers stability to dynamism. Alexander emphasizes the moral duty of recipients to accept the life transcending projects of their creators.48 Because members of each community become dependent on their successors to carry out their project, successors have a duty to accept the project and employ reasonable efforts to continue it. Dynamism has an exception for cases where owners create impractical or offensive projects. Successors must live their own lives and offensive, immoral, impractical restraints, or restraints that harm the recipients' personal autonomy, burden their lives. On the other hand, understanding life-transcending projects as joint projects, detracts from

stability but recognizes the new voices of successors, allowing them to reinterpret the property and give it new content.

To illustrate this point, let us compare property-centered projects to other, more abstract projects. Think of an author and his or her readers. The author writes the book, which is a life-transcending project. Readers are the successors. They can give the book new content and a new meaning that connects it to their world. The author needs the readers, but the readers need the author as well to provide context and richness to their life stories. Think of inventors, philosophers, and teachers that develop theories and create new knowledge, their life-transcending projects. Users and students reinterpret theories, apply them differently and criticize them. This new content continues the life-transcending project, not as passive recipients, but as active participants in the project. In similar vein, successors of property can change the purpose and use of the property, update several practices, or change the property's size. If life-transcending projects are joint projects, characterized by mutual dependency, legal rules should create more balance between the donor and the donee. For example, the law should be more suspicious towards restraints on bequests.

Finally, the last puzzle is the intergenerational community itself. How do we define the relevant community? Alexander focuses on the moral duty to transfer assets to one's family.49 His argument does not dispute the power of testamentary freedom in American law, but maintains there is a moral duty to transfer one's assets to family members upon death. This argument begs the question: why is the relevant community the family? There are other imaginable options for life-transcending projects. Intergenerational communities can be diverse and inclusive. One can interpret life-transcending projects as involving the transmission of knowledge from one generation to the next, with the relevant community being the teacher-student relationship. Another example derives inspiration from Chinese succession law, as characterized by Frances Foster.50 Chinese law incentivizes care for the elderly and the disabled. Persons could establish continuity through care and support rather than through familial relations. Decedents' caretakers are the ones who continue decedents' projects.

However, in American law, the relevant community of intergenerational relations is the family.51 Alexander argues for a moral duty towards the family, which he justifies as a protection of a certain kind of

stability?-stability of relations, and a commitment to the family as a symbol of continuity. American inheritance law scholars have continuously struggled to acknowledge diverse lifestyle and associations, and to broaden the strict definition of the family.52 These efforts seek to infuse dynamism into the concept of commitment and responsibility. But there are more radical choices that push dynamism even further. Consider this following example. The Portuguese aristocrat, Luis Carlos de Noronha, had no living relations, and he decided to execute an extraordinary will. He randomly picked seventy people out of a Lisbon phonebook as his beneficiaries.53 After his death, executors contacted these people and the people were astonished when informed they would inherit his estate.54 This will is radical because it immensely digresses from social norms. After all, Luis had many "reasonable" options. He could have bequeathed the money to a charitable organization. He could have left the money to a neighbor or friend. Yet, Luis chose to create a life-transcending project with complete strangers. His decision serves to remind us of the limits of stability, and the possibilities for inclusion.

Gregory Alexander's work has been a source of inspiration for me. It helped develop my understanding of property, obligations, and intergenerational dilemmas. In this Essay, I reflect on the intersection of Alexander's work on property and the past, and my own work on inheritance. I build on Alexander's work on the dialectic of stability and dynamism in property and integrate my findings with Alexander's work on intergenerational communities. This Essay advanced the argument that inheritance law holds a double, contradictory meaning of the stabilitydynamism dialectic. It then returned to Alexander's work and used the new prism to analyze and develop some of its normative conclusions.

--- FOOTNOTES ---

INTRODUCTION .................................................

I. STABILITY IN PROPERTY II. THE DIALECTIC OF PAST AND PRESENT .................. Inheritance ........................................

................................

C ONCLUSION ...................................................

.611

INTRODUCTION

* Professor of Law, Ramat Gan College of Law & Business. 1 See J. E. PENNER, THE IDEA OF PROPERTY IN LAw 2 (1997); Ernest J. Weinrib, Poverty and Property in Kant's System of Rights, 78 NOTRE DAME L. REV. 795, 803-14 (2003); Larissa Katz, Exclusion and Exclusivity in Property Law, 58 U. TORONTO L.J. 275, 275-78 (2008).

2 See generally Gregory S. Alexander, Eduardo M. Penfalver, Joseph William Singer &

Laura S. Underkuffler, A Statement of Progressive Property, 94 CORNELL L. REV. 743 (2009). 3 See Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745, 745-51 (2009); Gregory S. Alexander, Takings and the Post-Modem Dialectic of Property, 9 CONST. COMMENT. 259, 260-61 (1992).

4 See, e.g., Gregory S. Alexander, Intergenerational Communities, 8 LAw & ETHICS

HUM. RTS. 21, 21-23 (2014).

5 See Gregory S. Alexander, Governance Property, 160 U. PA. L. REV. 1853, 1853-57

(2012).

6 See GREGORY S. ALEXANDER, PROPERTY AND HUMAN FLOURISHING 103-33 (Oxford

Univ. Press 2018).

? See Gregory S. Alexander, The Dead Hand and the Law of Trusts in the Nineteenth Century, 37 STAN. L. REV. 1189, 1189-93 (1985) (presenting the problem as a dilemma be-

STABILITY IN PROPERTY

tween donor and donee that can be resolved, according to the argument, only by a naked

preference).

8 See Alexander, The Social-Obligation Norm in American Property Law, supra note 3,

at 780.

9 See SHELLY KREICZER-LEVY, DESTABILIZED PROPERTY: PROPERTY LAW IN THE SHAR-

ING ECONOMY 16 (2019).

10 See generally TIMOTHY SANDEFUR, CORNERSTONE OF LIBERTY: PROPERTY RIGHTS IN 21ST CENTURY AMERICA (2006); RICHARD PIPES, PROPERTY AND FREEDOM (1999); JEDIDIAH

PURDY, THE MEANING OF PROPERTY: FREEDOM, COMMUNITY, AND THE LEGAL IMAGINATION (2010); JAMES M. BUCHANAN, PROPERTY AS A GUARANTOR OF LIBERTY (1993).

11 See Gregory S. Alexander, Time and Property in the American Republican Legal Cul-

ture, 66 N.Y.U. L. REV. 273, 278-94 (1991).

12 Id. at 292. 13 Id. at 277. 14 Id. at 282. 15 Id.

II. THE DIALECTIC OF PAST AND PRESENT

16 Cf Anthony T. Kronman, Precedent and Tradition, 99 YALE L.J. 1029, 1031-32

(1990) (discussing precedent as a commitment to the past).

17 See Adam J. Hirsch & William K.S. Wang, A Qualitative Theory of the Dead Hand, 68 IND. L.J. 1, 12-13 (1992); John H. Langbein, Substantial Compliance with the Wills Act, 88 HARV. L. REV. 489, 491 (1975).

18 See Daniel B. Kelly, Restricting Testamentary Freedom: Ex Ante Versus Ex Post Jus-

tifications, 82 FORDHAM L. REV. 1125, 1133-34 (2013).

19 Various systems limit testamentary freedom in different ways. See, e.g., E. L. G.

TYLER, FAMILY PROVISION 3-5 (1971); C. H. SHERRIN ET AL., 1 WILLIAMS ON WILLS 971 (8th

ed. 2002); Joseph Laufer, Flexible Constraints on Testamentary Freedom -A Report on Decedents' Family Maintenance Legislation, 69 HARV. L. REV. 277, 278-82 (1955); Marie L. Revillard, France, in EUROPEAN SUCCESSION LAWS 211, 211 (David Hayton ed., 2d ed. 2002);

George A. Pelletier, Jr. & Michael Roy Sonnenreich, A Comparative Analysis of Civil Law Succession, 11 VILL. L. REV. 323 passim (1966).

20 See David R. Green & Alastair Owens, Introduction: Family Welfare and the Welfare

Family, in FAMILY WELFARE: GENDER, PROPERTY, AND INHERITANCE SINCE THE SEVENTEENTH

CENTURY 1, 2 (David R. Green & Alastair Owens eds., 2004) (discussing the strong connection between family and inheritance throughout cultures and historical eras); JACOB NEUSNER

ET AL., JUDAISM AND ISLAM IN PRACTICE 79-100 (2000); David S. Powers, The Islamic Inheri-

tance System: A Socio-Historical Approach, 8 ARAB L.Q. 13, 13-15 (1993); Frances H. Fos-

ter, Linking Support and Inheritance: A New Model from China, 1999 WiS. L. REV. 1199, 1217-26 (1999); Deborah A. Batts, I Didn't Ask to Be Born: The American Law of Disinheritance and a Proposal for Change to a System of Protected Inheritance, 41 HASTINGS L.J.

1197, 1197-98 (1990); Susanna L. Blumenthal, The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America, 119 HARV. L. REV. 960, 966-69 (2006).

21 See generally Adam Swift, Justice, Luck, and the Family: The Intergenerational

Transmission of Economic Advantage from a Normative Perspective, in UNEQUAL CHANCES: FAMILY BACKGROUND AND ECONOMIC SUCCESS 256 (Samuel Bowles et al. eds., 2005); Nigel

Tomes, The Family, Inheritance, and the Intergenerational Transmission of Inequality, 89 J. POL. ECON. 928 (1981).

22 See Mark L. Ascher, Curtailing Inherited Wealth, 89 MICH. L. REV. 69, 83-84 (1990). 23 JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY AND CHAPTERS ON SOCIALISM 33 (Jonathan Riley ed., Oxford Univ. Press 1994); Hirsch & Wang, supra note 17; Kelly, supra note 18; James M. Buchanan, Rent Seeking, Noncompensated Transfers, and Laws of Succession, 26 J.L. & ECON. 71, 71-72 (1983); J. J. Waldron, Locke's Account of Inheritance and Bequest, 19 J. HIST. PHIL. 39, 39-40 (1981); Joshua C. Tate, Caregiving and the Case for Testamentary Freedom, 42 U.C. DAVIS L. REV. 129, 176-80 (2008).

24 I have argued in favor of inheritance as a form of continuity through property in two

main articles. See generally Shelly Kreiczer-Levy, Property's Immortality, 23 CARDOZO J.L. &

GENDER 107 (2016); Shelly Kreiczer-Levy, Inheritance Legal Systems and the Intergenerational Bond, 46 REAL PROP. TR. & EST. L.J. 495 (2012).

25 Kronman, supra note 16, at 1051-53. 26 Id.. 27 ALEXANDER, supra note 6, at 104. 28 Id.

29 Kreiczer-Levy, Property's Immortality, supra note 24, at 109.

30 Lawrence M. Friedman, The Law of Succession in Social Perspective, in DEATH,

TAXES AND FAMILY PROPERTY 9, 12 (Edward C. Halbach, Jr. ed., 1977).

31 MARY ANN GLENDON, THE NEW FAMILY AND THE NEW PROPERTY 15-20 (1981). 32 See, e.g., Jane B. Baron, Empathy, Subjectivity and Testamentary Capacity, 24 SAN

DIEGO L. REV. 1043, 1045-46 (1987).

33 LAWRENCE M. FRIEDMAN, PRIVATE LIVES: FAMILIES, INDIVIDUALS, AND THE LAW 1-3

(2004).

34 Friedman observes that the right to devise property at death has always been in tension

with forced heirship. See Lawrence M. Freidman, The Law of the Living, the Law of the Dead: Property, Succession, and Society, 1966 WiS. L. REV. 340, 353 (1966).

35 RONALD CHESTER, FROM HERE TO ETERNITY?: PROPERTY AND THE DEAD HAND 2-3 (2007); Alan Newman, The Intention of the Settlor Under the Uniform Trust Code: Whose Property Is It, Anyway?, 38 AKRON L. REV. 649, 650 (2005).

36 See, e.g., Shapira v. Union Nat'l Bank, 315 N.E.2d 825 (Ohio Ct. Com. Pl. 1974) (conditioning the bequest upon the son marrying a Jewish woman). There are important limitations to this freedom based on public policy. See RESTATEMENT (THIRD) OF TRUSTS § 29 (AM. LAw INST. 2003).

37 Alexander, supra note 7. 38 See ALEXANDER, supra note 6. 39 Gregory S. Alexander & Eduardo M. Penalver, Properties of Communities, 10 THEO-

RETICAL INQUIRIES L. 127, 134-35, 143 (2009).

40 See ALEXANDER, supra note 6.

41 Id. at 110. 42 Kronman, supra note 16, at 1050-51. 43 Kreiczer-Levy, Property's Immortality, supra note 24, at 109. The literature includes ROBERT J. LIFTON, THE BROKEN CONNECTION: ON DEATH AND THE CONTINUITY OF LIFE 13-14 (1979); ZYGMUNT BAUMAN, MORTALITY, IMMORTALITY AND OTHER LIFE STRATEGIES (1992); ERNEST BECKER, THE DENIAL OF DEATH 33 (1973); Eric Strachan et al., Coping with the Inevitability of Death: Terror Management and Mismanagement, in COPING WITH STRESS 114, (C.R. Snyder ed., 2001).

44 Kreiczer-Levy, Property's Immortality, supra note 24, at 122-25.

45 Id. at 109. See also Kronman, supra note 16, at 1051-53.

46 ALEXANDER, supra note 6, at 111-13. 47 Kreiczer-Levy, Property's Immortality, supra note 24, at 135. 48 ALEXANDER, supra note 6, at 116-17.

49 Id. at 115. 50 See Foster, supra note 20, at 1202. 51 See, e.g., Ray D. Madoff, Unmasking Undue Influence, 81 MINN. L. REV 571, 625 (1997); Veena K. Murthy, Undue Influence and Gender Stereotypes: Legal Doctrine or Indoctrination?, 4 CARDOZO WOMEN's L.J. 105, 106 (1997).

CONCLUSION

52 See, e.g., Danaya C. Wright & Beth Sterner, Honoring Probable Intent in Intestacy: An Empirical Assessment of the Default Rules and the Modern Family, 42 ACTEC L.J. 341, 370 (2017); Danaya C. Wright, Inheritance Equity: Reforming the Inheritance Penalties Facing Children in Non-Traditional Families, 25 CORNELL J.L. & PUB. POL'Y 1, 15 (2015); E. Gary Spitko, The Expressive Function of Succession Law and the Merits of Non-Marital Inclusion, 41 ARIZ. L. REV. 1063, 1094 (1999).

53 Patrick Jackson, Where There's a Will There's a Whim, BBC NEWS (Jan. 17, 2007),

http://news.bbc.co.uk/2/hi/europe/6268015.stm.

54 Id.