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Revising Reasonableness in the Cloud

By March 1, 2021July 22nd, 2022No Comments

Abstract: This Article argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic stations of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom, or the freedom to distribute property in a will as one sees fit, fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy (i.e., the system of property distribution for a person who dies without a will) splinters property rights and inhibits their transfer, especially to nontraditional heirs.

Holistically, this Article argues that T&E should promote mean regression of the wealth distribution curve over time. This can be accomplished by loosening spending in ultrawealthy households and spurring savings and investment in low-income households.

T&E scholars are tackling inequality with greater urgency than ever before, yet basic questions remain. For instance, what do we mean by “inequality”? How can we remediate inequality? And what goals should we advance in redressing inequality? This Article contributes to these conversations by articulating a comprehensive framework for progressive inheritance law that redresses long-term inequality.

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Abstract: Save everything—just in case—and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such communications, the existing protections for them are insufficient under the Fourth Amendment. To prevent broad intrusions into users’ reasonable expectation of privacy, this Comment proposes an approach akin to Berger v. New York, where the Supreme Court invalidated a statute that allowed invasive real-time eavesdropping because the statute did not require sufficient particularization. Like in Berger, seizures of private communications in the cloud should require a warrant based on probable cause that is sufficiently particularized to protect against indiscriminate, large-scale data collection and roving searches by the government.

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