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Testation and Speech

Posted By David Horton On February 4, 2013 @ 1:01 am In Georgetown Law Journal, Law Review Article | No Comments


When I was practicing, I represented a mechanic, Barry, who was bitter rivals with his brother, Stan. Their father had left the lion’s share of his property to Barry. Stan challenged the will on the grounds of undue influence. Barry and Stan proceeded to litigate tooth-and-nail until they’d spent more on attorney’s fees than the estate was worth. When I pointed this out, Barry—a mullet-wearing, talk-radio-listening, martial-arts aficionado—replied, “We’re not fighting about money. We’re fighting about my dad’s love.”

That statement was the germ for Testation and Speech. Courts and scholars think of testation—the exercise of a will or a trust—in one of three ways. According to the conventional view, testation is the exercise of a property right: a posthumous echo of our lifetime ability to consume, transfer, and exclude. In addition, testation can also be seen as a contract-like conveyance: an agreement to pay an executor or trustee in return for their management of the estate. Finally, testation also resembles creation of a kind of personal mini-corporation. Indeed, trusts and corporations share the same internal architecture: both empower fiduciaries (trustees or directors) to manage property for others (beneficiaries or shareholders). But none of these perspectives capture what was driving Barry and Stan. Their father’s estate plan was arguably the most important thing he’d ever said to them. It made me realize that, unlike any other decision to use or invest property, testation is profoundly expressive.
In this Legal Workshop essay, I summarize Testation and Speech. In Part I, I make the descriptive claim that testation is—and has always been—a powerful form of speech. In Part II, I consider the normative implications of this insight.

I. The Evolution Of Testamentary Self-Expression

Testation first became common among wealthy Romans in the late Republic. Although Rome had a comprehensive intestacy regime, Sir Henry Maine remarked that its citizens viewed the prospect of dying without a valid will with “singular horror.”1 According to Maine, “[n]o evil [was] a heavier visitation than the forfeiture of [t]estamentary privileges.”2 In fact, the phrase “may you die intestate” was a “curse to hurl at your enemies.” 3

This preoccupation with testation reflected that it was a rare opportunity to comment on one’s life. For instance, Paul Veyne describes Roman wills as part “manifesto” and part “confession.”4 Likewise, as Edward Champlin notes after reviewing testamentary instruments from that era, wills were seen as “vessels of truth”:

What naturally catch the eye are the explicit expressions of emotion: the dearest, most affectionate, most pious (or most ungrateful) of children, the rarest (or most obnoxious) of friends, the most (or least) deserving of slaves, the most beloved of fatherlands. Seldom do the actual documents that survive at any length omit some overt indication of the testator’s feelings. Hope, fear, anger, delight, satisfaction, and disappointment . . . can visibly tumble over each other in the succeeding paragraphs of a single will . . . . In one’s will, one said, at last, what one truly felt.5

And even when testators were less forthcoming, their choices were seen as statements. Some named dozens of contingent beneficiaries, including politicians, writers, and celebrities whom they had never met.6 These “substitute heirs” were unlikely to receive anything of pecuniary value; rather, mentioning them was a way to single them out for high esteem. Conversely, glaring omissions in wills were taken as a sign of serious disrespect.

Gradually, testation’s communicative function waned. During the Justinian period, each of a testator’s children became entitled to a fixed portion of her possessions under a concept known as the legitim. By forbidding disinheritance, the legitim institutionalized the view that testation was a transfer of wealth to be regulated, rather than an opportunity to convey one’s individualism. The legitim and the related concept of dower—which entitled wives to share their husbands’ estates—held sway over England throughout the early Middle Ages. Then, in the eleventh century, the Norman Conquest introduced primogeniture: a regime in which a decedent’s land passed automatically to his eldest son. Because land was the basis of political and economic power in a feudal society, primogeniture diminished the importance of testation.

Yet it did not destroy testation’s expressive function. For one, in a spiritual culture, wills offered testators a chance to prove that they were worthy of salvation. In lengthy “pious clauses,” they made gifts to charitable and religious institutions and tried to bequeath their souls to heaven. These provisions were then inscribed on plaques and hung in churches. In addition, the manner in which testators disposed of personal property often expressed their thoughts about loved ones. Consider one of the best-known wills of all time: William Shakespeare left his “second-best bed” to his wife, Anne.7 There has been no shortage of debate in college English departments about this bequest. Some scholars have argued that the seemingly paltry gift signified “how little he esteemed her.”8 Others have claimed that because it was the bed in which the couple actually slept, the bequest would have been understood as a tender, winking message.9 The passage of time has obscured the meaning of this statement about the relationship. Tellingly, though, both camps agree on one overarching matter: the bequest was a statement about the relationship.

Today, although the vast majority of testamentary instruments do not openly communicate the testator’s or settlor’s views, there are some vibrant exceptions. For instance, testators and settlors have articulated their opinion that Christianity is “a ‘blasphemy,’”10 accused their spouse of infidelity,11 or urged their children to “[b]e good to each other.”12 In fact, some of these discursive wills and trusts have given rise to libel claims—underscoring the link between testation and speech. Libel is triggered by the publication of false and malicious assertions that damage a person’s reputation. Most importantly for my purposes, libel is deeply entangled with the First Amendment. The U.S. Supreme Court has imposed rigorous requirements on state libel laws in cases involving public figures.13 To be sure, the Court has held that claims founded on “matters of purely private concern”—which includes many of the personal and insular statements in wills—qualify for “less stringent” constitutional protection.14 Yet the fact that the First Amendment applies at all reveals that the conventional views of testation do not fully capture the act’s essence.

Testators and settlors also communicate by dividing their property. Although they memorialize this decision in writing, its true expressive impact comes not from the actual text of the document, but from what it implies. A testator’s or settlor’s distributional choices are a potent “speech act”—a species of expressive conduct. According to the test for “symbolic speech” under the First Amendment, behavior is communicative if “[a]n intent to convey a particularized message was present, and . . . the likelihood was great that the message would be understood by those who viewed it.”15 The manner in which a testator or settlor allocates her possessions will often satisfy these prongs. Indeed, estate planning decisions are usually intended to be—and perceived as—commentary on relationships. Because testation requires us to divide everything we own among many potential recipients, it is “like a quadratic equation being solved for the value of love.”16 It creates a stark comparison between family and friends, and thus can be one of the most revelatory acts of our lives.

For instance, testation is sometimes the only way to convey the full depth of a testator’s gratitude. Even on cold appellate records, courts have little trouble interpreting bequests as a testator’s way of thanking beneficiaries for care-giving,17 decades of faithful service,18 or “a deep and abiding friendship extending over at least 57 years.” 19 On the flipside, children who inherit less than their siblings view their parents’ estate plan as a deliberate insult. Indeed, disgruntled beneficiaries are notoriously litigious. Because of the high volume of incapacity and undue influence challenges—attempts to show that unequal bequests do not reflect the testator’s authentic, autonomous wishes—wills and trusts are “more apt to be the subject of litigation than any other legal instrument.”20 Paradoxically, “smaller estates generate at least as much, if not more, controversy than larger estates.”21 One probate judge reports presiding over bitter, protected cases “where, literally, you wouldn’t get $1,000 for the property involved.”22 These beneficiaries are not fighting about the pecuniary value of the gifts. Instead, they are challenging something else: the message encoded in the testamentary scheme.

And although people often use, transfer, or invest property in a way that expresses their individuality, two factors make testation unique. First, it takes place against the backdrop of death. Relationships ebb and flow during life, but testation is the last act. As the final note, it resonates. Second, testation is comprehensive. Although we constantly exercise dominion over our possessions during life, only once—when we make a will or a trust—do we exercise our dominion over all of our possessions. This inclusivity makes testation intensely personal. Beginning with William James, psychologists have noted that we define our personhood, in part, by our possessions:

[B]etween what man calls me and what he simply calls mine the line is difficult to draw. We feel and act about certain things that are ours very much as we feel and act about ourselves . . . . [A] man’s Self is the sum total of all that he can call his, not only his body and psychic powers, but his clothes and his house . . . his lands and horses, and yacht and bank-account.23

Similarly, Margaret Jane Radin has argued that “[m]ost people possess certain objects they feel are almost part of themselves.”24 She calls these cherished items—a longtime home or wedding ring—“personal property,”25 and argues that the law should protect them more it protects than the great mass of “fungible” property.26

Testation further entangles property and personhood. It forces testators and settlors to bequeath objects that are “personal” in Radin’s dichotomy—things that they would never otherwise convey. Finding a new custodian for these beloved items is a difficult choice. And indeed, the meaning inherent in these decisions may explain why beneficiaries litigate over punch bowls, glockenspiels, watches, and household furniture. More generally, after testators or settlors die, their belongings are the most vivid and accessible reminder of their existence. As a result, beneficiaries perceive owners’ distributional choices as a proxy for their voice and an extension of their affection. For instance, Janet Finch and Jennifer Mason interviewed nearly one hundred grieving individuals and were struck by the “clear identification between people and objects.”27

In sum, although courts and scholars situate testation underneath the umbrella of other forms of private ordering—property, contract, or corporate law—there is a quality that makes it unique. Testation is deeply expressive. In the next Part, I discuss how this realization should affect the law.

II. Policy Implications

Testation’s expressive function has two significant implications for wills and trusts law. First, testation’s communicative nature reveals that some restrictions on testamentary freedom cannot survive First Amendment scrutiny. Second, it counsels against recent changes in wills and trusts law that limit testamentary freedom in an attempt to enhance the pecuniary value of the estate.

A.     Testation and the First Amendment

According to the conventional wisdom, the Fifth Amendment bars the government from stripping owners of their ability to transmit an asset after death by any means—will, trust, or intestacy—without providing just compensation.28 However, other than prohibiting this extreme measure, the Constitution supposedly gives the government carte blanche to regulate testation. In this section, I explain why the doctrine of undue influence—a common ground to challenge the validity of a will or a trust—violates the First Amendment.

Undue influence nullifies gifts to beneficiaries who exert such dominion over the testator that they cause her to make a bequest that she would not otherwise have made. Like fraud or duress, undue influence invalidates transactions that are not truly voluntary. Yet undue influence is far hazier than those rules. Because “[a]ll wills are the result of influence,” asking judges and juries to determine whether influence is “undue” permits them “to bring [their] own views of morality and propriety to bear.”29 In particular, undue influence is notorious for penalizing testators who deviate from “judicially imposed testamentary norms—in particular, the norm that people should provide for their families.”30

Critically, this heightened scrutiny for bequests to “strangers” is woven into the common law. The test for undue influence includes factors such as whether the beneficiary enjoyed a confidential relationship with the testator or actively participated in the creation of the instrument. But the determinative prong is generally whether an estate plan is “unnatural.” Courts in many states automatically deem any bequest to a non-family member to be “unnatural.” Indeed, “[t]he status of the beneficiary, rather than the quality of the beneficiary’s relationship to the testator, determines what is a natural disposition.”31

Yet testamentary gifts to non-relatives possess tremendous expressive power. First, bequeathing property outside of the family is a ringing exercise of autonomy. Intestacy laws favor spouses and children. To engage in testation is to break from this mold and express one’s individuality. Second, by sharing this view with others, so-called “deviant” dispositions of property add to the stockpile of information accessible in the “marketplace of ideas.” After all, “[w]ills—and any trusts contained therein—are public record, available to beneficiaries, heirs, thieves, reporters, and ‘inquiring minds’ alike.”32 Third, although these bequests are not overtly political, there is a colorable argument that they address matters of public concern by defying entrenched norms. Both the legal system and society marginalize intimate companionship and even friendship by regarding them as pale substitutes for the family.

This conclusion is significant because the “unnatural” bequest element cannot survive intermediate scrutiny even under the Court’s lenient test for expressive conduct. To be valid, a restriction on symbolic speech must “further[ ] an important or substantial governmental interest.”33 Of course, at the highest level of abstraction, the undue influence doctrine serves the laudable objective of preventing coercion. However, defining all testamentary gifts to non-family members as “unnatural” does not advance this goal. Studies reveal that a staggering eighty-five to ninety percent of elder abuse occur at the hand of relatives.34 Despite this stark fact, the “unnatural” bequest prong singles out gifts to friends and lovers (no matter how close) while ignoring bequests to relatives (no matter how distant). That is not an effective way to combat testamentary overreaching.

Admittedly, when the state invokes the undue influence doctrine, it does not suppress speech completely. Indeed, it does not enjoin a testator or settlor from expressing her views on paper; rather, it merely instructs courts not to distribute her property as instructed. At the same time, though, the undue influence rule accomplishes something startling and unique in the First Amendment arena: it denies the authenticity of speech. When a court strikes down a bequest, it deems it to be involuntary. In essence, it concludes that the testator or settlor did not mean to say what she said. And because the testator or settlor is dead—and thus powerless to set the record straight—there is no difference between that result and simply denying them the opportunity to speak at all.

An analogy to compelled speech helps make this point. In that context, the Supreme Court has recognized that forcing individuals to speak disingenuously can be just as damaging as prohibiting speech completely. For instance, the Court has held that the First Amendment entitles schoolchildren not to recite the pledge of allegiance,35 Jehovah’s Witnesses not to display “Live Free or Die” (the New Hampshire motto) on their license plates,36 and teachers not to have their union dues spent on activities they do not support.37 These opinions vindicate the “fundamental rule of protection under the First Amendment[ ] that a speaker has the autonomy to choose the content of his own message.”38 Yet the state violates this principle when it arbitrarily deems a bequest to a non-relative to be “undue.” It commandeers the owner’s voice and produces a false statement about a deeply-personal and important issue. Thus, even though the “unnatural” bequest element does not totally bar speech, it is unconstitutional.

B.     Testamentary Freedom and Self-Expression

The scope of testamentary freedom is in flux. With Americans projected to bequeath $41 trillion in the next half-century—the largest intergenerational wealth transfer in history39—some scholars and policymakers have begun to focus less on honoring testamentary intent and more on preserving the value of the corpus. This movement is particularly striking in trust law, where a rash of recent doctrinal adjustments has stripped settlors of power. For example, the Uniform Trust Code (UTC), the Restatement (Third) of Trusts, and a rising number of states now require “[a] trust and its terms [to be] for the benefit of its beneficiaries.”40 In addition, although trust law has traditionally consisted of default rules, the UTC contains an array of “intent-defeating” mandatory doctrines (including the benefit-the-beneficiaries rule).41 Although the scope of these newly-minted doctrines are unclear, they have the potential to dramatically “limit the power of a departed settlor to prescribe how . . . the beneficiaries are to order their lives or use the transferred wealth.”42

For example, John Langbein, a giant in the field of decedents’ estates and a member of the committee that drafted the UTC, argues that the benefit-the-beneficiaries rule permits courts to strike down unwise investment directives. Traditionally, courts have invalidated capricious trusts: those that are wasteful or intrusive and also possess no social value. Langbein claims that the benefit-the-beneficiaries rule modernizes the capricious trust doctrine “to clarify the principle that has always been its rationale.”43 He contends that we traditionally honor settlors’ wishes because they have the interests of the beneficiaries in mind: “[t]rust law’s deference to the settlor’s discretion presupposes and presumes that the direction is beneficiary-regarding.”44 As a result, he sees nothing anomalous in judicial intervention to correct a settlor’s incorrect belief that a particular term actually will benefit the beneficiaries. He illustrates this point with a hypothetical:

The settlor has worked all his life for, let us say, IBM. Through stock options and company sponsored investment plans, he has accumulated a large block of IBM common stock. He dies, leaving the block in trust with instructions not to sell it . . . . Suppose, further, that the settlor leaves a letter explaining his thinking. “I worked for IBM for 35 years, they were wonderful to me, they helped me buy the stock, and the stock zoomed in value throughout my career. You just cannot do better.”45

Langbein notes that this IBM-only investment clause violates modern portfolio theory by exposing the trust to the uncompensated risk of holding a single asset.46 Thus, he concludes that the provision is invalid under the benefit-the-beneficiaries rule.47

My thesis casts this issue in a different light. Unlike Langbein, who assumes that settlors are “beneficiary-regarding,” I have argued that settlors are also self-regarding. They do not just provide for their loved ones; they also comment on their lives. And that is exactly what the settlor in Langbein’s hypothetical is doing: thanking his longtime employer for being “wonderful to [him].”48 From the settlor’s perspective, IBM is as much a beneficiary of the trust as anyone else. Langbein dismisses the settlor as motivated by “his sentimental affection for bygone days.”49 But as I have argued, that kind of reflection and summation is part of parcel of estate planning. Thus, even aside from the issue of whether courts should second-guess a settlor’s business acumen, the benefit-the-beneficiaries rule endangers testamentary self-expression. Courts should either not adopt the rule or construe it as merely restating the conventional doctrine against capricious trusts.

To be clear, I do not claim that testation’s communicative dimensions and economic waste are variables of equal weight. Even in the First Amendment context, we shield expressive conduct—burning a flag or marching—that exacts little social cost. But when we chart the contours of testamentary freedom, we should factor testamentary self-expression into the equation somewhere. A potent benefit-the-beneficiaries rule—one that allows courts simply to disregard individualistic trust provisions—does not.

In addition, because the UTC makes the benefit-the-beneficiaries rule mandatory, it threatens to sweep far beyond the narrow context of investment directives. For example, Langbein argues that courts should invoke the doctrine to nullify conditions that require beneficiaries to marry a member of a specific religion. According to Langbein, the settlor “meant to have the beneficiary’s interest at heart by attempting to bind the beneficiary to the faith.”50 Thus, Langbein asserts that invalidating the condition actually facilitates the settlor’s intent because it does what she would do if she observed the hardship she had imposed on the beneficiaries:

The living donor can always change his or her mind, as he or she observes the consequences of an unwise course of conduct, or as other circumstances change, but the settlor who is deceased or who, though living, occupies a decedent-like relationship to the trust by having made the trust’s terms irrevocable cannot.51

Accordingly, he casts this application of the benefit-the-beneficiaries doctrine as a benign “change-of-circumstances doctrine.”52

Again, though, a settlor who establishes a marital condition may not “mean[ ] to have the beneficiary’s interest at heart.”53 That description of the settlor’s motivation is a clever rhetorical ploy: it makes her seem muddling and paternalistic. But if we think of the settlor as acting for a different reason—to express the importance of her faith—then the normative calculus changes dramatically. Now we are talking about state interference with an owner’s attempt to articulate something intensely personal.

Moreover, testation’s expressive function belies any “change-of-circumstances” rationale for a mandatory benefit-the-beneficiaries rule. It is possible that a living settlor would forgive compliance with a marital condition as she observed its harsh real-world consequences. But by making the rule against these gifts mandatory, Langbein’ reading of the UTC conclusively presumes that the settlor would relax the reigns. But settlors who require beneficiaries to marry within the faith care deeply about their spirituality. In the eyes of these settlors, the condition is not just as an effort to control the beneficiaries, but an assertion: a way of calling attention to what matters most, a kind of exclamation point at the end of their lives. It is exceedingly unlikely that they would change their minds. In fact, the mandatory change-of-circumstances presumption applies even to settlors who feel so strongly that they would refuse to support irreligious adult children. Rightly or wrongly, such a settlor has already demonstrated her resoluteness. And yet the benefit-the-beneficiaries rule would override her wishes on the grounds that she would eventually have a change of heart. That is exactly backwards.


The creation of a will or trust is a singular form of self-expression. In a variety of ways, testators and settlors comment on the people and issues closest to their hearts. This dimension of testation reveals that some limits on testamentary freedom raise First Amendment concerns. And as the field of decedents’ estates enters uncharted terrain, it suggests that courts, scholars, and policymakers should balance concerns about profit maximization with a healthy respect for the fact that some people never say anything as important as the contents of their estate plan.


Copyright © 2013 David Horton.

David Horton is an Acting Professor of Law at the University of California, Davis.

This Legal Workshop Editorial is based on the following Article: David Horton, Testation and Speech, 101 GEO. L.J. 61 (2012), available at http://georgetownlawjournal.org/articles/testation-and-speech/.

  2. Id.
  4. Paul Veyne, The Roman Empire, in A HISTORY OF PRIVATE LIFE: FROM PAGAN ROME TO BYZANTIUM 5, 30–31 (Paul Veyne ed., Arthur Goldhammer trans., 1987).
  5. EDWARD CHAMPLIN, FINAL JUDGMENTS: DUTY AND EMOTION IN ROMAN WILLS, 200 B.C.-A.D. 250, at 9–10 (1991) (footnote omitted).
  7. See, e.g., MARJORIE B. GARBER, PROFILING SHAKESPEARE 167–73 (2008) (surveying the vast literature).
  8. Id. at 167–68 (internal quotation omitted).
  9. See id. at 168.
  10. Paul T. Whitcombe, Defamation by Will: Theories and Liabilities, 27 J. MARSHALL L. REV. 749, 754 (1994) (quoting Estate of Caie, [1927] S.J. 898 at 898 (Eng.)).
  11. Id. at 752.
  12. Deborah S. Gordon, Reflecting on the Language of Death, 34 SEATTLE U. L. REV. 379, 410 (2011) (quoting SO THAT YOUR VALUES LIVE ON—ETHICAL WILLS AND HOW TO PREPARE THEM, at xxv (Jack Riemer & Nathaniel Stampfer eds., 2009)) (internal quotation marks omitted).
  13. See New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).
  14. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759–60 (1985) (plurality opinion).
  15. Texas v. Johnson, 491 U.S. 397, 404 (1989) (some alterations in original) (internal quotation marks omitted).
  16. Neal Karlen, And the Meek Shall Inherit Nothing, N.Y. TIMES (July 29, 1999), http://www.nytimes.com/1999/07/29/garden/and-the-meek-shall-inherit-nothing.html.
  17. In re Armstrong’s Estate, 272 N.W. 799, 803 (S.D. 1937).
  18. See, e.g., Olsen v. Corp. of New Melleray, 60 N.W.2d 832, 837–38 (Iowa 1953) (involving gift to testator’s longtime employee).
  19. In re Estate of Smith, 411 P.2d 879, 885 (Wash. 1966) (en banc).
  20. Leon Jaworski, The Will Contest, 10 BAYLOR L. REV. 87, 88 (1958).
  21. Dennis W. Collins, Avoiding a Will Contest—The Impossible Dream?, 34 CREIGHTON L. REV. 7, 9 (2000) (quoting Jeffrey A. Schoenblum, Will Contests—An Empirical Study, 22 REAL PROP. PROB. & TR. J. 607, 615 (1987)).
  22. Eric Adler, The Stuff of Life, KAN. CITY STAR, Oct. 18, 2007, at E1 (quoting Missouri Probate Court Commissioner Daniel Wheeler) (internal quotation marks omitted).
  24. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 959 (1982).
  25. See id. at 960.
  26. Id. at 959.
  28. See, e.g., Ronald Chester, Inheritance in American Legal Thought, in INHERITANCE AND WEALTH IN AMERICA 23, 36 (Robert K. Miller, Jr. & Stephen J. McNamee eds., 1998).
  30. Ray D. Madoff, Unmaking Undue Influence, 81 MINN. L. REV. 571, 576 (1997).
  31. Id. at 590.
  32. Frances H. Foster, Trust Privacy, 93 CORNELL L. REV. 555, 557 (2008).
  33. United States v. O’Brien, 391 U.S. 367, 377 (1968).
  34. John B. Breaux & Orrin G. Hatch, Confronting Elder Abuse, Neglect, and Exploitation: The Need for Elder Justice Legislation, 11 ELDER L.J. 207, 219 (2003); see also In re Estate of Pryor, 99 Cal. Rptr. 3d 895, 902–03 (2009).
  35. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
  36. Wooley v. Maynard, 430 U.S. 705, 717 (1977).
  37. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235 (1977).
  38. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Bos., 515 U.S. 557, 573 (1995).
  39. See John Leland, Breaking the Silence, N.Y. TIMES (Mar. 18, 2008), http://www.nytimes.com/2008/03/18/business/businessspecial3/18family.html.
  40. UNIF. TRUST CODE § 404, 7C U.L.A. 484 (2000); RESTATEMENT (THIRD) OF TRUSTS § 27(2) (2003).
  41. UNIF. TRUST CODE §105(b).
  42. John H. Langbein, Mandatory Rules in the Law of Trusts, 98 NW. U. L. REV. 1105, 1105 (2004).
  43. John H. Langbein, Burn the Rembrandt? Trust Law’s Limits on the Settlor’s Power to Direct Investments, 90 B. U. L. REV. 375, 277 (2010).
  44. Id. at 385. (emphasis added).
  45. Langbein, supra note 42, at 1112–13.
  46. See id. at 1113.
  47. Id.
  48. Id. at 1112.
  49. Langbein, supra note 43, at 392.
  50. Langbein, supra note 42, at 1109–10.
  51. Id. at 1111.
  52. Id.
  53. Id. at 1109.

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