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Full-Text Articles in Law

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra Jul 2015

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …


The Secret Economy Of Charitable Giving, Allison Anna Tait Feb 2015

The Secret Economy Of Charitable Giving, Allison Anna Tait

Allison Anna Tait

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a saving doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor …


Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer May 2014

Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer

Nancy J. Knauer

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws …


Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan Mar 2013

Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan

Melissa K. Scanlan

Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …


Regulation Not Prohibition: The Comparative Case Against The Insurable Interest Doctrine, Sharo Michael Atmeh Jan 2012

Regulation Not Prohibition: The Comparative Case Against The Insurable Interest Doctrine, Sharo Michael Atmeh

Sharo M Atmeh

American law requires an insurable interest—a pecuniary or affective stake in the subject of an insurance policy—as a predi-cate to properly obtaining insurance. In theory, the rule prevents both wagering on individual lives and moral hazard. In practice, the doctrine is avoided by complex insurance transaction structuring to effectuate both origination and transfers of insurance by individuals without an insurable interest. This paper argues that it is time to ab-andon the insurable interest doctrine. As both the English and Aus-tralian experiences indicate, elimination of the insurable interest doctrine will have little detrimental pecuniary effect on the insurance industry, while freeing …


Mctorts: The Social And Legal Impact Of Mcdonald's Role In Tort Suits, Caroline Forell Jan 2011

Mctorts: The Social And Legal Impact Of Mcdonald's Role In Tort Suits, Caroline Forell

Caroline A Forell

This Article looks at the impact of McDonald’s on public policy and tort law from historical and social psychology perspectives, following McDonald’s from its beginnings in the mid-1950’s through today. By examining McDonald’s Corp. v. Steel and Morris (McLibel), Liebeck v. McDonald’s Restaurants (Hot Coffee), and Pelman v. McDonald’s Corp. (Childhood Obesity), I demonstrate that certain tort cases involving McDonald’s have had particularly important social and legal consequences that I attribute to McDonald’s special influence over the human psyche, beginning in childhood. In explaining McDonald’s extraordinary power over the public imagination and how this affects lawsuits involving it, I rely …


The Failure Of Adversary Process In The Administrative State, Bryan T. Camp Jan 2009

The Failure Of Adversary Process In The Administrative State, Bryan T. Camp

Bryan T Camp

In a series of hearings in 1997 and 1998, Congress heard allegations that the Internal Revenue Service (“IRS” or “Service”) was abusing taxpayers during the process of collecting taxes. The resulting distrust of the tax bureaucracy led Congress to create a special adversary proceeding providing for judicial review of IRS collection decisions. The proceeding is beguilingly titled “Collection Due Process” (and commonly referred to as “CDP”). My study of CDP’s structure, operation, and of 976 court decisions issued through the end of 2006 demonstrates that it has failed to fulfill its promise. Of the over 15 million collection decisions made …


Defining Capacity: The Competing Interests Of Autonomy And Need, Nancy J. Knauer Jan 2003

Defining Capacity: The Competing Interests Of Autonomy And Need, Nancy J. Knauer

Nancy J. Knauer

This Essay addresses the question of capacity - the basic threshold determination that pervades all areas of the law. An individual must have the requisite level of capacity to consent to sex, refuse medical treatment, enter into a contract, marry, divorce, relinquish parental rights, execute a will, make a gift, donate organs, vote, serve on a jury, stand trial, and even to hire a lawyer. The standards regulating determinations of capacity are not monolithic. An individual may lack the capacity to contract, but may have the requisite capacity to write a will or to refuse life-sustaining medical treatment. As individuals, …