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Strengthening The Passivity Default, Ian Ayres, Edward Fox Jun 2019

Strengthening The Passivity Default, Ian Ayres, Edward Fox

Articles

In The Prudence of Passivity, Bryon Harmon and Laura Fisher (hereafter HF) argue that "passive management become the default approach for the investment of trust funds, to be abandoned only when circumstances specifically dictate the use of active management."' In this comment we argue that their thesis could be strengthened (i) by more clearly distinguishing between default law and default investment practices, (ii) by more clearly articulating their favored altering rules.


Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox Mar 2019

Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox

Articles

Modern finance theory and investment practice have shifted toward “passive investing.” The current consensus is that most savers should invest in mutual funds or ETFs that are (i) well-diversified, (ii) low-cost, and (iii) expose their portfolios to age-appropriate stock market risk. The law governing trustees, investment advisers, broker–dealers, 401(k) plan managers, and other investment fiduciaries has evolved to push them gently toward this consensus. But these laws still provide broad scope for fiduciaries to recommend that clients invest instead in specific assets that they believe will produce “alpha” by outperforming the market. Seeking alpha comes at a cost ...


Janus As A Client: Ethical Obligations When Your Client Plays Two Roles In One Fiduciary Estate, Karen E. Boxx, Philip N. Jones Jan 2019

Janus As A Client: Ethical Obligations When Your Client Plays Two Roles In One Fiduciary Estate, Karen E. Boxx, Philip N. Jones

Articles

Is it possible for an attorney to have a conflict of interest when the attorney represents a trustee who is also a beneficiary of the trust? Is that situation similar to having two clients? What if the trustee is not only a beneficiary, but also a claimant against the trust? Since the trustee has three roles to play, is that situation similar to an attorney having three clients? The issue presented by these potential conflicts was one of the most vexing for the drafters of the Fifth Edition of the ACTEC Commentaries. The range of possible approaches goes from a ...


How Neuroscience Technology Is Changing Our Understanding Of Brain Injury, Vegetative States And The Law, Glenn R. Butterton Jan 2019

How Neuroscience Technology Is Changing Our Understanding Of Brain Injury, Vegetative States And The Law, Glenn R. Butterton

Articles

The author examines clinical studies that use neuroscience technology to study patients in Vegetative States. The studies indicate that some of the patients are, in fact, conscious. The author suggests that this finding is a matter of considerable practical importance for the drafting and execution of end-of-life protocols such as Advance Directives and Living Wills. He recommends that statutes, and other guidance used by patients, caregivers, medical institutions, family members and others to draft and interpret such Directives and Wills, be revised or amended to take account of these results.


Medicaid Planning In Idaho, John A. Miller Jan 2016

Medicaid Planning In Idaho, John A. Miller

Articles

No abstract provided.


Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association Dec 2015

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

Articles

These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the ...


How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner May 2015

How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner

Articles

Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement ...


Medicaid Planning For Long-Term Care: California Style, John A. Miller Jan 2015

Medicaid Planning For Long-Term Care: California Style, John A. Miller

Articles

No abstract provided.


Correcting The Record Regarding Therestatement Of Property’S Slayer Rulein The Brooklyn Law Review’Ssymposium Issue On Restatements, Lawrence W. Waggoner, John H. Langbein Jan 2015

Correcting The Record Regarding Therestatement Of Property’S Slayer Rulein The Brooklyn Law Review’Ssymposium Issue On Restatements, Lawrence W. Waggoner, John H. Langbein

Articles

In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. The organizer of the symposium, Professor Anita Bernstein, did not afford an opportunity for Restatement reporters to comment on the articles. The organizer did invite the Director of the American Law Institute, Lance Liebman, to contribute an essay commenting on the symposium as a whole. Liebman’s essay—unintentionally no doubt—misstated the position that we took in formulating the slayer rule for the Restatement (Third) of Property: Wills and Other Donative Transfers. Liebman’s misstatement—that we recommended that the Institute adopt a rule ...


The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner Jul 2014

The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner

Articles

This article appears in a symposium issue published by the Vanderbilt Law Review on The Role of Federal Law in Private Wealth Transfer. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state ...


Shakespeare In The Classroom: How An Annual Student Production Of King Lear Adds Dimension To Teaching Trusts And Estates, Karen E. Boxx Jan 2014

Shakespeare In The Classroom: How An Annual Student Production Of King Lear Adds Dimension To Teaching Trusts And Estates, Karen E. Boxx

Articles

I always begin the first day of my Trusts and Estates course by discussing the reasons for taking the class. While I note that some students may take the class to help in passing the bar exam or because family members have already asked them to draft wills, my list of reasons instead include: (1) exposure to the fiduciary relationship; (2) the real life ethical dilemmas faced by the lawyers; (3) learning to read and interpret state statutes; and (4) consideration of how law responds to societal changes and governs human relationships. This last reason is critical: Trusts and Estates ...


The White Whale: Bringing Emotion And Relevance To The Contemporary Trusts And Estates Course, Wayne M. Gazur Jan 2014

The White Whale: Bringing Emotion And Relevance To The Contemporary Trusts And Estates Course, Wayne M. Gazur

Articles

No abstract provided.


Rethinking Erisa's Promise Of Income Security In A World Of 401(K) Plans, Lawrence A. Frolik Jan 2014

Rethinking Erisa's Promise Of Income Security In A World Of 401(K) Plans, Lawrence A. Frolik

Articles

This article discusses the evolution of retirement income funds from defined benefit packages to 401(k) and IRA accounts and how the changing dynamic has reshaped the way retirees think about post-retirement income. The article outlines the mechanics of 401(k) accounts and rollover IRAs in the post-retirement period and presents questions about the ability of retirees to successfully address the complex issues relating to investment choices including, what entity they entrust their savings to, the volume and source of distributions, and long-term sufficiency planning. The article suggests that an increase in the use of annuities may help to resolve ...


A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford, Anthony C. Infanti Jan 2014

A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford, Anthony C. Infanti

Articles

The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law’s commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This ...


Washington Trust Law's Extreme Makeover: Blending With The Uniform Trust Code And Taking Reform Further With Innovations In Notice, Situs, And Representation, Karen E. Boxx, Katie S. Groblewski Oct 2013

Washington Trust Law's Extreme Makeover: Blending With The Uniform Trust Code And Taking Reform Further With Innovations In Notice, Situs, And Representation, Karen E. Boxx, Katie S. Groblewski

Articles

Washington trust laws were comprehensively revised in 2011 and 2013, resulting in the integration of concepts from the Uniform Trust Code and the addition of some novel provisions. This article discusses in depth the evolution of Washington law regarding the duties to inform and report, the situs of a trust, and representation of interested parties. In addition, this article discusses other UTC provisions that were integrated into Washington statutes and gives an explanation of any departures from UTC language and prior Washington law.


Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur Jan 2012

Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur

Articles

No abstract provided.


Retirees Beware: Don't Worry About The British, 'Taxmageddon' Is Coming, Douglas A. Kahn, Lawrence W. Waggoner Jan 2012

Retirees Beware: Don't Worry About The British, 'Taxmageddon' Is Coming, Douglas A. Kahn, Lawrence W. Waggoner

Articles

"Taxmageddon" is coming. Unless Congress extends the current rates or reaches an agreement on tax reform, dividends will then be taxed as ordinary income at a marginal rate as high as 39.6 % and net capital gains will then be taxed at 20%. For high-income taxpayers, a 3.8% Medicare surtax will be added to the taxation of net capital gains, dividend income, interest, and other investment income, bringing the highest marginal rate to 43.4%.


What's In The Third And Final Volume Of The New Restatement Of Property That Estate Planners Should Know About, Lawrence W. Waggoner Jan 2012

What's In The Third And Final Volume Of The New Restatement Of Property That Estate Planners Should Know About, Lawrence W. Waggoner

Articles

Professor John Langbein and I have just concluded a twenty-year project for the American Law Institute to restate the law of donative transfers. The official title of our three-volume Restatement is the Restatement (Third) of Property: Wills and Other Donative Transfers.1 We refer to it herein simply as the Property Restatement. The third and final volume of the work was published in the last days of 2011. Professor Langbein spoke about certain of the initiatives in the two earlier volumes, which set forth the principles governing the law of wills, intestacy, interpretation of instruments, and the nonprobate system. The ...


Us Perpetual Trusts, Lawrence W. Waggoner Jan 2011

Us Perpetual Trusts, Lawrence W. Waggoner

Articles

In 2009, the UK reconfirmed tis long-standing public policy against perpetual trusts. America has been moving in the opposite direction. Recent years have seen a movement in the states to pass legislation allowing settlors to create family trusts that can last forever or for several centuries. Sadly, and embarrassingly, the American perpetual-trust movement has not been based on the merits of removing the traditional curb on excessive dead-hand control. The policy issues associated with allowing perpetual trusts have not been seriously discussed in the state legislatures. The driving force has been interstate competition for trust business.


It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn Jan 2010

It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn

Articles

This article is the continuation of an exchange that has taken place between Prof. Stephen B. Cohen and me concerning the validity of criticisms leveled by Chief Justice John Roberts on an opinion by then-Judge Sonia Sotomayor writing for the Second Circuit in the case of William L. Rudkin Testamentary Trust v. Commissioner. While affirming the Second Circuit’s decision, Chief Justice Roberts, writing for a unanimous Supreme Court, criticized and rejected Justice Sotomayor’s construction of the relevant statutory provision. In an article in the August 3, 2009, issue of Tax Notes, Cohen defended Justice Sotomayor’s construction of ...


Protecting Our Aging Retirees: Converting 401(K) Accounts Into Federally Guaranteed Lifetime Annuities, Lawrence A. Frolik Jan 2010

Protecting Our Aging Retirees: Converting 401(K) Accounts Into Federally Guaranteed Lifetime Annuities, Lawrence A. Frolik

Articles

America’s retirees are faced with a potential financial disaster. Economic security in retirement has long depended on Social Security, private savings and employer provided retirement plans. While much attention has been paid to the financial problems of Social Security and the lack of private saving for retirement, little attention has been paid to an alarming development in employer provided retirement plans: the likely inability of retirees during the long years of their retirement to successfully manage their retirement funds accumulated in 401(k) and similar accounts. We as a society have set up a funding system for retirement that ...


Message To Congress: Halt The Tax Exemption For Perpetual Trusts, Lawrence W. Waggoner Jan 2010

Message To Congress: Halt The Tax Exemption For Perpetual Trusts, Lawrence W. Waggoner

Articles

The federal estate tax is in abeyance this year. The popular press has picked up on the possibility that the estates of billionaires such as the late George Steinbrenner, who owned the New York Yankees, will escape the tax. The House Ways and Means Committee, chaired by Representative Sander Levin of Michigan, and the Senate Finance Committee, chaired by Senator Max Baucus of Montana, are now considering two questions: what the maximum rate and exemption will be when the estate tax returns and whether the tax will be reinstated for this year. Lurking behind the headlines but equally important is ...


Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn Sep 2009

Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn

Articles

In the August 3 issue of Tax Notes, Prof. Stephen Cohen wrote an article about Justice Sonia Sotomayor’s opinions in three tax cases. Of those three cases, only the opinion she wrote in William L. Rudkin Testamentary Trust v. Commissioner, 467 F.3d 149 (2d Cir. 2006), Doc 2006- 21522, 2006 TNT 203-4, is worthy of comment. Although the Second Circuit’s decision in that case was affirmed by the Supreme Court under the name Knight v. Commissioner, the construction of the critical statutory language that Justice Sotomayor adopted was rejected and criticized by Chief Justice Roberts, writing for ...


The Upc Addresses The Class-Gift And Intestacy Rights Of Children Of Assisted Reproduction Technologies, Lawrence W. Waggoner, Sheldon F. Kurtz Jan 2009

The Upc Addresses The Class-Gift And Intestacy Rights Of Children Of Assisted Reproduction Technologies, Lawrence W. Waggoner, Sheldon F. Kurtz

Articles

Editor's Synopsis: Recent years' advances in assisted reproduction technology have enabled the conception of children in ways in addition to the traditional way. The Uniform Probate Code was amended last year to address the status of children born from assisted reproductive technologies for intestacy and class-gift purposes. This article discusses the relevant UPC provisions and offers several hypothetical cases to show how they operate. The article concludes expressing the hope that states will consider the new UPC approach.


The Upc Authorizes Notarized Wills, Lawrence W. Waggoner Jan 2008

The Upc Authorizes Notarized Wills, Lawrence W. Waggoner

Articles

This article reports on a 2008 amendment to the Uniform Probate Code that permits notarization as a method of will execution.


Pro Se Executors—Unauthorized Practice Of Law, Or Not?, Michael Hatfield Jan 2007

Pro Se Executors—Unauthorized Practice Of Law, Or Not?, Michael Hatfield

Articles

This Article clarifies why under Texas law an individual named as executor in a will has the right to offer the will for probate and otherwise appear in a probate court without hiring a lawyer. This Article first provides an overview of the independent administration provisions of the Texas probate code before reviewing the unauthorized practice of law prohibition and the pro se exception. After establishing that executors qualify for the pro se exception in Texas because executors appearing in court are exercising their own management rights—rather than the rights of "the estate" or the beneficiaries—the Article explores ...


Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner Jan 2007

Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner

Articles

The new Restatement (Third) of Property (officially the Restatement (Third) of Property: Wills and Other Donative Transfers), in tandem with the Restatement (Third) of Trusts, is systematically proceeding through the whole field of wills, will substitutes, trusts, and estates. Both of the new Restatements should prove to be handy resources for trust and estate lawyers, not only in preparing to argue cases at both trial and appellate levels, but also in the everyday work of drafting and construing dispositive provisions in wills, trusts, and other types of donative documents. Each Restatement section is followed by a set of Comments explaining ...


Distinguishing Trustees And Protecting Beneficiaries: A Response To Professor Leslie, Karen E. Boxx Apr 2006

Distinguishing Trustees And Protecting Beneficiaries: A Response To Professor Leslie, Karen E. Boxx

Articles

No abstract provided.


Colorado Revisits The Rule Against Perpetuities, Wayne M. Gazur Jan 2006

Colorado Revisits The Rule Against Perpetuities, Wayne M. Gazur

Articles

The 2006 Colorado General Assembly passed legislation adopting a 1000-year limitation applicable to interests in trust, practically eliminating the Rule Against Perpetuities ("RAP"). This article discusses the legislation's impact on the RAP in trust and non-trust situations.


Dick Wellman -- A Personal Remembrance, Lawrence W. Waggoner Jan 2006

Dick Wellman -- A Personal Remembrance, Lawrence W. Waggoner

Articles

Dick Wellman was my teacher, mentor, collaborator, colleague, and friend. My law school class at The University of Michigan Law School voted Dick the most enthusiastic member of the faculty, and he was that. Dick devoted his professional life to teaching and scholarship, as most law professors do, but he had another career: Dick was a key player in the Uniform Law Conference,' an organization dedicated to improving private law and promoting legislative uniformity among the states.2