Law Commons^™

Empirical Inheritance Law, Alexander Boni-Saenz

All Faculty Scholarship

Empirical legal scholars tell it like it is. The nature of the “it” that we might want to know about varies significantly by legal field, however, and it also differs based on one’s scholarly position within that field. This Comment explores the major ways that empirical legal scholarship can be valuable to those of us working on normative or theoretical legal scholarship in inheritance law.

The Times They Are Not A-Changin': Reforming The Charitable Split-Interest Rules (Again), Wendy C. Gerzog

Chicago-Kent Law Review

This article will review the history of the tax treatment of charitable split interest gifts, explain the inequities that Congress both cured and generated in its 1969 reforms, and propose solutions that are consistent with the goals of the 1969 legislation. The article discusses variations in the 1969 definition of a charitable split interest, which, because of the enacted statutory language, applies in instances where there is no abuse potential. The inequity produced by that definition penalizes the donor and flouts the rationale behind the 1969 legislation. By contrast, the creation of some required statutory forms of charitable split interests …

What Leona Helmsley Can Teach Us About The Charitable Deduction, Ray D. Madoff

Chicago-Kent Law Review

Leona Helmsley named a number of beneficiaries under her will (both human and canine), but among the unnamed beneficiaries are scholars interested in studying the role of philanthropy in the United States. By directing that an estimated $8 billion be used for the benefit of dogs, Mrs. Helmsley brought in to high relief policy issues regarding the appropriateness of the unlimited charitable deduction. I argue that these concerns are equally applicable, albeit less obvious, when it comes to more traditional charitable bequests. In this paper I will discuss the appropriateness of the unlimited estate tax deduction (particularly in light of …

Should Charitable Trust Enforcement Rights Be Assignable?, Joshua C. Tate

Chicago-Kent Law Review

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that "[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust." Joshua Tate's paper will address the question of whether, and to what extent, a settlor's right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if …

The Law Of Philanthropy In The Twenty-First Century: An Introduction To The Symposium, Anne-Marie Rhodes

Chicago-Kent Law Review

No abstract provided.

Helping Nonprofits Police Themselves: What Trust Law Can Teach Us About Conflicts Of Interest, Melanie B. Leslie

Chicago-Kent Law Review

Fiduciary duty law seeks to minimize agency costs that occur when the interests of the agent and principal diverge. That law is context specific: the substance depends upon the objectives of the fiduciary relationship and the degree to which other forces, such as markets and social norms, help align the incentives of principal and fiduciary.

Trust law has no business judgment rule, and prohibits even "fair" conflict of interest transactions unless they are approved by fully informed beneficiaries. Strict rules bolster norms against self-dealing and compensate for trust beneficiaries' poor monitoring abilities and inability to exit or diversify. Corporate fiduciary …

Respecting Foundation And Charity Autonomy: How Public Is Private Philanthropy? (Symposium) (With J. Tyler), Evelyn Brody

All Faculty Scholarship

Recent years have seen a disturbing increase in legal proposals by the public and government officials to interfere with the governance, missions, strategies, and decision-making of foundations and other charities. Underlying much of these debates is the premise – stated or merely presumed – that foundation and charity assets are “public money” and that such entities therefore are subject to various public mandates or standards about their structure, operations, and policies. The authors’ experiences and research reveal three “myths” that, singly or collectively, underlie claims that charitable assets are public money. The first myth conceives of charities as shadow governments …

From The Dead Hand To The Living Dead: The Conundrum Of Charitable Donor Standing (Symposium), Evelyn Brody

All Faculty Scholarship

No abstract provided.

From The Dead Hand To The Living Dead: The Conundrum Of Charitable Donor Standing (Symposium), Evelyn Brody

Evelyn Brody

No abstract provided.

Charity Governance: What’S Trust Law Got To Do With It? (Symposium), Evelyn Brody

All Faculty Scholarship

No abstract provided.

The Charity In Bankruptcy And Ghosts Of Donors Past, Present, And Future (Symposium), Evelyn Brody

Evelyn Brody

The bankruptcy of a charity represents the clash of two policy regimes: charity law's willingness to preserve assets for the public purpose determined by the donor as against bankruptcy law's desire to maximize assets for distribution to creditors. As a general rule, assets will be distributed to creditors; as the courts say, 'a man must be just before he is generous.' However, when a charitable donee goes out of existence or otherwise becomes unable to perform a charitable trust or restricted gift, the courts will try to identify those charitable assets that are restricted in such a manner that they …

Charity Governance: What’S Trust Law Got To Do With It? (Symposium), Evelyn Brody

Evelyn Brody

No abstract provided.

Whose Public?: Parochialism And Paternalism In State Charity Law Enforcement, Evelyn Brody

All Faculty Scholarship

This piece was inspired by the increasing tendency of State attorneys general – backed up by courts and legislatures – to effectively confiscate the assets of wealthy nonprofits through overreaching enforcement actions. The article develops a legal framework for ascertaining the proper State role. It reviews many case studies including, most notoriously, the thwarted diversification of the Milton Hershey School Trust out of Hershey Foods Corporation (an investment worth over $5 billion) – thereby preserving the local operations of a publicly traded company. While few state attorneys general have the funding and inclination to engage in aggressive charity enforcement, the …

I Say It's Spinach: Charitable Trusts To Remedy Market Failures In The Performing Arts, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.

The Twilight Of Organizational Form For Charity: Musings On Norman Silber, A Corporate Form Of Freedom: The Emergence Of The Modern Nonprofit Sector (Book Review), Evelyn Brody

All Faculty Scholarship

No abstract provided.

A Taxing Time For The Bishop Estate: What Is The I.R.S. Role In Charity Governance?, Evelyn Brody

Evelyn Brody

This piece, included in the University of Hawaii Law Review's symposium issue on the Bishop Estate, explores the relationship between the new intermediate sanctions law and the IRS's power to revoke tax exemption under § 501(c)(3). Inspired by the storied setting, I indulge in a fantasy: This article pretends that the IRS revoked the Estate's exemption, and takes the form of the Tax Court declaratory judgment opinion. I reluctantly 'rule' that exemption was not appropriate, because State enforcement action against the trustees was proceeding. (However, this forum allows me to hedge my argument by producing two concurring and one dissenting …

Posthumous Meddling: An Instrumental Theory Of Testamentary Restraints On Conjugal And Religious Choices, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.

A Taxing Time For The Bishop Estate: What Is The I.R.S. Role In Charity Governance? (Symposium), Evelyn Brody

Evelyn Brody

No abstract provided.

The Limits Of Charity Fiduciary Law, Evelyn Brody

All Faculty Scholarship

Trustees of charitable trusts and directors of nonprofit corporations operate under legal regimes designed for their for-profit cousins. In the absence of private beneficiaries or shareholders to look after their own interests, however, charity fiduciaries frequently escape accountability for their self-dealing and neglect or mismanagement. Few charities have members endowed with voting rights, and state attorneys general have limited resources to devote to monitoring the nonprofit sector. Similarly, at the federal level, the Internal Revenue Service is a tax collector, not a policing agency (although its new powers to tax excess benefits will undoubtedly draw it further into charity operations). …

All You Really Need To Know About Subchapter J You Learned From This Article, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.

Hairsplitting Under I.R.C. Section 2035(D): The Cause And The Cure, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.

Mercy Killing And The Right To Inherit, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.

Undue Influence And The Homosexual Testator, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.