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"Horton, David"
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Probate standing
Few topics in civil justice have sparked as much criticism as the standing doctrine. The US 'Constitution' and some of its state counterparts require plaintiffs to allege that they suffered an \"injury-in-fact\" that the defendant caused and that a court can redress. A veritable ocean of commentary argues that this requirement is confusing, ahistorical, and unmoored from its objectives. Yet a different manifestation of the standing doctrine has long lurked in obscurity. Standing issues are also common in state probate courts, where the transmission of assets from the dead to the living can affect a variety of parties. But in sharp contrast to the vast literature on standing in general civil litigation, probate standing has never received sustained scholarly attention. This article explores this unique nexus of civil procedure and decedents' estates. First, it demonstrates that probate standing principles have long been a tangled mess. For hundreds of years, probate judges have tried to control their dockets by limiting the right to file petitions and objections to people who are \"interested\" in the outcome. However, \"interest\" is a slippery concept in a field where rights are often contingent. Indeed, the impact of an inheritance dispute can hinge on unknown variables, like future births, deaths, the validity of estate planning documents, or the result of other litigation. Thus, courts reach wildly different conclusions about basic probate standing matters. Second, the article argues that the costs of the standing mandate outweigh the benefits. For starters, the leading rationales for the standing doctrine - ensuring that claimants litigate zealously and preventing courts from ruling on issues that are better addressed by elected officials - do not apply to a system that is often inquisitorial and features questions about private rights, not social policy. Even worse, the standing mandate closes the probate courthouse door to assertions of grave misconduct. Thus, the article concludes that probate judges should presumptively grant standing to anyone who might gain something from their claim. Third, the article uses this insight to propose solutions to festering standing puzzles in will contests, creditor's claims, lawsuits for elder abuse, fiduciary litigation, and other forms of estate-related conflict.
Journal Article
A survey of voluntaristics : research on the growth of the global, interdisciplinary, socio-behavioral science field and emergent inter-discipline
\"This article provies survey of the growth of research on Nonprofit Sector and Voluntary Action Research, now termed simply voluntaristics. The author founded the organized, global interdisciplinary, socio-behavioral science field of voluntaristics in 1971, with his formation and establishment of the Association for Research on Nonprofit Organizations and Voluntary Action (ARNOVA; www.arnova.org). Both ARNOVA, and its interdisciplinary, academic journal, Nonprofit and Voluntary Sector Quarterly (NVSQ), have served as initial models for the global diffusion of this interdisciplinary field, now present in all inhabited continents and with upwards of 20,000 academic participants in at least 130 nations and territories, and likely more.\"
Book
Arbitration About Arbitration
The U.S. Supreme Court's interpretation of the Federal Arbitration Act (FAA) has nearly eliminated consumer and employment class actions, sparking vigorous debate. But another important development in federal arbitration law has flown largely under the radar. Traditionally, judges granted motions to compel arbitration only after confirming that the parties had formed a valid agreement to arbitrate that applied to the underlying lawsuit. But now, through the use of \"delegation clauses,\" businesses are giving arbitrators the exclusive power to decide these issues. Increasingly, critical questions about the arbitration—including whether the process is fair—are being resolved in the arbitration itself. This Article gives this trend the attention it deserves. It demonstrates that courts once regarded agreements to arbitrate about arbitration with greater skepticism than agreements to arbitrate the merits of a case. However, in 2010, the Supreme Court seemed to cast doubt on this distinction in Rent-A-Center West, Inc. v. Jackson by opining that delegation clauses are their own freestanding arbitration clauses: (1) agreements to arbitrate disputes (2) over the broader agreement to arbitrate the underlying complaint. Seen this way, delegation clauses are entitled to the same extraordinary deference enjoyed by conventional arbitration provisions. This Article challenges that account of delegation clauses. Drawing on the FAA's text and history and reading Rent-A-Center carefully, it argues that agreements to arbitrate the scope or enforceability of an arbitration clause should not enjoy the same exalted status as agreements to arbitrate substantive claims. Instead, delegation clauses should be understood as watered-down arbitration clauses that are more amenable to regulation than industrial-strength agreements to arbitrate a cause of action. Finally, this Article explains how its thesis would help resolve many of the questions about arbitral power that are currently dividing courts.
Journal Article
Trophic Hierarchies Illuminated via Amino Acid Isotopic Analysis
Food web ecologists have long sought to characterize the trophic niches of animals using stable isotopic analysis. However, distilling trophic position from isotopic composition has been difficult, largely because of the variability associated with trophic discrimination factors (inter-trophic isotopic fractionation and routing). We circumvented much of this variability using compound-specific isotopic analysis (CSIA). We examined the (15)N signatures of amino acids extracted from organisms reared in pure culture at four discrete trophic levels, across two model communities. We calculated the degree of enrichment at each trophic level and found there was a consistent trophic discrimination factor (~7.6‰). The constancy of the CSIA-derived discrimination factor permitted unprecedented accuracy in the measurement of animal trophic position. Conversely, trophic position estimates generated via bulk-(15)N analysis significantly underestimated trophic position, particularly among higher-order consumers. We then examined the trophic hierarchy of a free-roaming arthropod community, revealing the highest trophic position (5.07) and longest food chain ever reported using CSIA. High accuracy in trophic position estimation brings trophic function into sharper focus, providing greater resolution to the analysis of food webs.
Journal Article
The global historical and contemporary impacts of voluntary membership associations on human societies : a literature review
\"Reviewed here is global research on how 13 types of Voluntary Membership Associations (MAs) have significantly or substantially had global impacts on human history, societies, and life. Such outcomes have occurred especially in the past 200+ years since the Industrial Revolution circa 1800 CE, and its accompanying Organizational Revolution. Emphasized are longer-term, historical, and societal or multinational impacts of MAs, rather than more micro-level (individual) or meso-level (organizational) outcomes. MAs are distinctively structured, with power coming from the membership, not top-down. The author has characterized MAs as the dark matter of the nonprofit/third sector, using an astrophysical metaphor. Astrophysicists have shown that most physical matter in the universe is dark in the sense of being unseen, not stars or planets.\"--Page 4 of cover.
Book
Psyllids in Natural Habitats as Alternative Resources for Key Natural Enemies of the Pear Psyllids (Hemiptera: Psylloidea)
The pear psyllids (Cacopsylla spp.; Psylloidea) comprise ~24 species of sap-feeding insects distributed in Europe, temperate Asia, and (as introductions) in the Americas. These pear-specialized insects are among the most damaging and difficult to control pests in orchards. Biological control increasingly is being used to replace or partially replace insecticidal management of pear psyllids. Many key natural enemies of pear psyllids regularly occur in non-orchard habitats on native plants. The presence of beneficial species both in orchard and non-orchard habitats (here referred to as “spillover”) has prompted suggestions that native plants and their associated psyllids should be conserved as alternative resources for natural enemies of pear psyllids. The expectation is that the natural enemies will move from those habitats into psyllid-infested orchards. This review shows that psyllids in native habitats are important resources for several key predators and parasitoids of pear psyllids. These resources are critical enough that some beneficials exhibit an almost nomadic existence as they move between plant species, tracking the seasonal appearance and disappearance of psyllid species. In contrast, other natural enemies show minimal or no spillover between orchard and non-orchard habitats, which likely is evidence that they exhibit limited movement at best between orchard and non-orchard habitats. To show conclusively that spillover also indicates that a beneficial species disperses between native habitats and orchards requires difficult research on insect movement. This review concludes with a brief discussion of these difficulties and possible solutions.
Journal Article
CLAUSE CONSTRUCTION
For decades, the U.S. Supreme Court has insisted that forcing a plaintiff to arbitrate — rather than allowing her to litigate — does not affect the outcome of a dispute. Recently, the Court has invoked this “parity assumption” to expand arbitral jurisdiction. Reasoning that it does not matter whether an arbitrator or a judge resolves a particular issue, the Justices have allowed arbitrators to decide important questions about the arbitral proceeding itself.
The parity assumption has proven impossible to test. First, cases that are arbitrated differ from those that end up in the judicial system, complicating efforts to compare outcomes from each sphere. Second, arbitral awards are rarely published and thus remain shrouded in mystery.
However, one important topic defies these limitations. Jurisdictions are divided over whether courts or arbitrators should perform a task known as “clause construction” — determining whether an arbitration clause that does not mention class actions permits such procedures. As a result, both judges and arbitrators have been weighing in on the same question. Moreover, because class members are entitled to notice of rulings that impact their rights, the American Arbitration Association requires arbitral clause-construction awards to be available to the public. For once, then, it is possible to assess how the two kinds of decisionmakers resolve the same issue.
This Article capitalizes on this opportunity by analyzing a dataset of 150 recent judicial and arbitral clause-construction decisions. Its logit regression analysis concludes that arbitrators are nearly 64 times more likely than judges to allow class actions. This Article then uses its findings to propose a solution to the circuit split over clause construction and to inform the broader debate over the boundaries between judicial and arbitral power.
Journal Article
INFINITE ARBITRATION CLAUSES
For decades, the Supreme Court has expanded the Federal Arbitration Act (FAA) and companies have placed arbitration clauses in hundreds of millions of contracts. This Article examines a less-obvious way in which arbitration's tendrils are growing. Once, even the broadest arbitration provisions only governed allegations that were somehow connected to the agreement between the parties (the \"container contract\"). As a result, they often did not cover shocking and unforeseeable misconduct, or parties who did not sign the container contract, or claims that arose after the agreement lapsed. But now businesses are experimenting with what this Article calls \"infinite\" arbitration clauses: those that mandate arbitration for all disputes between any related party in perpetuity. Moreover, to cut courts out of the loop, drafters are coupling infinite provisions with so-called \"delegation\" clauses, which give the arbitrator the exclusive right to determine whether to send a cause of action to arbitration. The Article reveals that courts are divided about whether to take infinite provisions literally. At first, most judges refused to allow companies to compel arbitration in such broad strokes. Yet the Court has recently decided a rash of cases that imply that the FAA overrides judicial hostility to boundless arbitration provisions. Thus, infinite clauses are caught in a tug-of-war between state contract rules that protect individuals from overreaching and the Justices' view that the FAA makes arbitration agreements bulletproof. To resolve this conflict, the Article offers a theory about the limits of corporate power to opt out of the judicial system. First, it argues that some infinite provisions are not valid because they attempt to impose arbitration on plaintiffs who did not truly agree to the process. Second, it contends that even when a plaintiff did agree to arbitrate, the robust federal policy in favor of arbitration does not apply to lawsuits that have no logical relationship to the container contract. Finally, the Article uses these insights to propose solutions to the numerous problems raised by ultra-broad arbitration clauses.
Journal Article