Usufructuary Rights and the Chippewa

I am only kidding when I tell my Property students that using the word “usufruct” on their finals will yield extra credit, but I am in fact intrigued by the venerable notion of usufructuary rights. The holders of usufructuary rights may use and enjoy real property that is vested in another as long as they do not use up that property or do harm to it.

The potential assertion of usufructuary rights has surfaced recently in conjunction with Governor Walker’s efforts to prompt iron ore mining along the northern rim of Wisconsin and to create sales opportunities for manufacturers of mining equipment. Native Americans and particularly several bands of Chippewa (formally recognized branches of the Ojibwe people) have opposed the development of the mines because mining waste contains sulfides that pollute wetlands, streams, and groundwater. And, as it turns out, the Chippewa have usufructuary rights related to the lands where the projected mines will be located!

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Residency Requirements and the Sense of Community

Ray Papke, my late father, was a maintenance man for Milwaukee Public Schools and proud of it. He had no quarrel with the requirement that City of Milwaukee employees live within the City. He was born in Milwaukee, worked for Milwaukee, and pleased to live in Milwaukee.

Were he alive today, Ray Papke would have opposed Governor Scott Walker’s proposed elimination of residency requirements for City employees, but I can’t imagine him voicing the common arguments against the proposal. To wit, (1) Property values in the city will fall, (2) The City’s racial and ethnic diversity will decline, and (3) People are more effective working for others if they know and live with them.

No, Ray Papke’s position was one based on a more fundamental sense of community, one that literally had a geographic foundation. He lived and worked for this town in this place. This view of social life is of course missing in the Governor’s vision of free-floating individuals who should be able to live wherever they want. It’s also missing in the arguments of the Governor’s opponents, arguments primarily couched with reference to socio-economic concerns and workers’ efficiency.

I fear that the vision of community held dear by Ray Papke was buried along with him and his generation of honest, patriotic, blue-collar Americans. We cannot relive the past, but these Americans were in touch with something that added depth and meaning to their lives.

 

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Trusts & Estates and the “Businesslike” Practice of Law

In 1980, I had the opportunity to interview Louis Auchincloss. Known for his novels about New York’s traditional elite, Auchincloss also maintained a successful and sophisticated trusts and estates practice. In fact, I interviewed him in his corner office on Wall Street. His thoughtfulness, dignified manners, Brooks Brothers clothing, and elegant office stuck in my mind over the years as an illustration of top-drawer T & E.

It came as a surprise to me over thirty years further down the road to learn that the white-shoe Manhattan firm of Debevoise & Plimpton was eliminating its T & E practice. It turns out that Debevoise & Plimpton is only the latest big firm to take this step. Weil, Gotshal & Manges and also Gibson, Dunn & Crutcher, among other big firms, have also in recent years done the same.

Why are the big firms ending their involvement with T & E? According to the analysts, T & E is an uncomfortable fit in the emerging big-firm business model. Genteel and personalized, the T & E practice of somebody like Louis Auchincloss cannot assign large numbers of junior associates and run up the tab in the process. Drafting wills and trusts generates fewer billable hours and profit than big-time litigation, corporate bankruptcies, and mergers and acquisitions.

The contemporary legal profession has its share of problems, but the elimination of big-firm T & E practice underscores the problem that is perhaps the most troubling. Namely, the market economy is swallowing up the legal profession. Every day, we see the practice of law becoming just a business. If legal educators share my perception and are troubled by it, we might reduce skills training and hold off teaching law students “to hit the ground running,” that is, graduate ready to make a buck. Legal educators might instead redouble efforts to teach ethics, honor professional norms, and endorse genuine humanistic values. These are the features of professionalism that distinguish it from unbridled profit-seeking.

 

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