115 Yale L.J. 356 (2005)

This Article presents the first empirical study of the domestic jurisdictional competition for trust funds. To allow donors to exploit a loophole in the federal estate tax, since 1986 a host of states have abolished the Rule Against Perpetuities as applied to interests in trust. To allow individuals to shield assets from creditors, since 1997 a handful of states have validated self-settled asset protection trusts. Based on reports to federal banking authorities, we find that, on average, through 2003 a state's abolition of the Rule increased its reported trust assets by $6 billion (a 20% increase) and increased its average trust account size by $200,000. By contrast, our examination of validating self-settled asset protection trusts yielded indeterminate results. Our perpetuities findings imply that roughly $100 billion in trust funds have moved to take advantage of the abolition of the Rule. Interestingly, states that levied an income tax on trust funds attracted from out of state experienced no observable increase in trust business after abolishing the Rule. Because this finding implies that abolishing the Rule does not directly increase a state's tax revenue, it bears on the study of jurisdictional competition. In spite of the lack of direct tax revenue from attracting trust business, the jurisdictional competition for trust funds is patently real and intense. Our findings also speak to unresolved issues of policy concerning state property law and federal tax law.

115 Yale L.J. 491 (2005)

In 2000, a year after the shooting of Amadou Diallo, a select committee of the New York City Council held a series of meetings in the Bronx to address police-community relations. The committee intended the meetings "to open a dialogue between police officers and city residents, perhaps even repair relations," but the first meeting degenerated into a torrent of accusations from over two hundred attendees on police mistreatment of African-Americans. "[O]ne resident after another relat[ed], with a mixture of passion and anger, humiliating encounters with the police" that they attributed to their race. By the end, police officers could do nothing but sit quietly and hear out the people they were supposed to serve.

The meeting failed for a simple reason: The committee placed too much faith in the power of open dialogue and overlooked the bitterness then underlying any discussion of police-minority relations. A similar problem afflicts R. Richard Banks's Beyond Profiling: Race, Policing, and the Drug War, which criticizes the current debate over racial profiling for focusing too much on profiling's alleged irrationality. For Banks, the argument that racial profiling is irrational is mere masking rhetoric, obscuring underlying grievances about the consequences of profiling for minorities and minority communities. Banks urges opponents of racial profiling to debate these grievances openly rather than cloak them with claims of irrationality.

This Comment argues that Banks does not properly take into account the dangers of open dialogue. Dan Kahan pointed to these dangers six years ago in The Secret Ambition of Deterrence, which argued that masking rhetoric is sometimes necessary to avoid conflicts over controversial topics. After providing background on the two articles, I argue that the debates Banks wants us to have about racial profiling are prone to the types of value conflicts that Kahan identified in Secret Ambition. I conclude that progress is possible if we forego Banks's contentious debates: The current rhetoric on racial profiling, despite its many weaknesses, enables us to make limited but important reforms.