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Articles 1 - 30 of 86
Full-Text Articles in Law
The Essential Structure Of Property Law, James Y. Stern
The Essential Structure Of Property Law, James Y. Stern
Michigan Law Review
This Article examines a characteristic of property entitlements fundamental to the structure of property systems that has received scant academic attention, a characteristic referred to as the mutual exclusivity principle. According to this principle, a property system does not allow for the existence of incompatible rights. Two people cannot separately be the owners of the same resource, for instance. By contrast, two people can each hold valid but contradictory contract rights to the resource. Although the existing property literature has stressed the “exclusive” nature of property, the various ways in which property is imagined to be exclusive, such as by …
Top Leases And The Rule Against Perpetuities, J. Suzanne Hill
Top Leases And The Rule Against Perpetuities, J. Suzanne Hill
Pepperdine Law Review
The competition for oil and gas leases has resulted in an increase in the use of top leases to secure oil and gas leasehold estates. Top leases which are found to violate the Rule against Perpetuities could result in the loss of millions of dollars to the lessee. The author examines top leasing in light of the Rule against Perpetuities and concludes that absent a savings clause, such leases violate the Rule. A savings clause is proposed which would save an otherwise invalid lease thereby circumventing the harsh application of the Rule.
Who Is Afraid Of Perpetual Trusts?, Bridget J. Crawford
Who Is Afraid Of Perpetual Trusts?, Bridget J. Crawford
Michigan Law Review First Impressions
Throw a stone into a room full of law professors, and it is virtually impossible to hit someone who will defend perpetual trusts. Yet since 1995, eighteen states have repealed their rules against perpetuities, and there are now twenty-one states that permit trusts to last forever. Many academics have responded with a virtual pile-on, calling the repeals a "race to the bottom" at best and "loony" at worst. Lawrence Waggoner, Professor Emeritus at the University of Michigan School of Law and Reporter for the Restatement (Third) of Property: Wills and Other Donative Transfers, has made another contribution to the scrum. …
Non-Judicial Estate Settlement, John H. Martin
Non-Judicial Estate Settlement, John H. Martin
University of Michigan Journal of Law Reform
Estate settlement through probate procedures satisfies no one. The public is hostile to the delay, expense, and lack of privacy that accompanies probate. Attorneys respond to public dissatisfaction by counseling probate avoidance. Legislatures facilitate some settlements by enacting simplified procedures for low-value estates. In large measure, the Uniform Probate Code (UPC) was a response to criticisms leveled at probate. Alternative settlement procedures are offered by the UPC, including informal testacy determinations and informal appointment procedures. These alternatives, however, remain imbedded in a judicial system, with it procedural rigidities. The UPC informal settlement alternatives did not silence the criticism. The continued …
Children Of Assisted Reproduction, Kristine S. Knaplund
Children Of Assisted Reproduction, Kristine S. Knaplund
University of Michigan Journal of Law Reform
More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is …
What's In The Third And Final Volume Of The New Restatement Of Property That Estate Planners Should Know About, Lawrence W. Waggoner
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 concluding …
Toward A Model Law Of Estates And Future Interests, Benjamin Barros
Toward A Model Law Of Estates And Future Interests, Benjamin Barros
Benjamin Barros
The American law of estates and future interests is tremendously complex. This complexity is unjustifiable because it serves no modern purpose. Many of the distinctions between types of interests in the current system of ownership are vestiges of ancient English feudal concepts and owe their place in the law solely to historical accident. This article develops a proposed model law designed to simplify and modernize the basic property ownership system. The proposals made here differ substantially from prior suggestions for legislative reform, and reflect issues of enactability and retroactivity that previously have been neglected in the literature. The article both …
Toward A Model Law Of Estates And Future Interests, D. Benjamin Barros
Toward A Model Law Of Estates And Future Interests, D. Benjamin Barros
Washington and Lee Law Review
No abstract provided.
Is The Family A Federal Question?, Meredith Johnson Harbach
Is The Family A Federal Question?, Meredith Johnson Harbach
Washington and Lee Law Review
There has long been conflict over the relationship between the states and the federal system vis-i-vis the family. The traditional account of domestic relations describes family Law as the exclusive domain of the states, andfederal courts have credited this account in the "domestic relations exception." Although scholars have analyzed and critiqued the exception's applicability to diversity jurisdiction, the intersection offederal question jurisdiction and this exception remains largely unexplored. This Article describes and critiques, on both instrumental and deeper normative terms, federal courts' willingness to expand the "domestic relations exception" to include federal question cases. The Article proceeds in three parts. …
Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer
Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer
St. Mary's Law Journal
In the market economy of the United States, a large segment of industry is focused on providing goods and services to the government or to the public on behalf of the government. Often, small businesses are preferred to multinational corporations. But, when the actions of a business toward the government involve the myriad methods of deceit and inflating costs and billing, the business’s legitimate actions have turned into fraud against the government. For those employees who witness this fraudulent behavior and wish to act, one option is to file a qui tam action. The action may be brought either by …
The Future Of Future Interests, T. P. Gallanis
The Future Of Future Interests, T. P. Gallanis
Washington and Lee Law Review
No abstract provided.
The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier
The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier
Articles
For more than two centuries, the Rule against Perpetuities has served as the chief means of limiting a transferor's power to tie up property by way of successive contingent interests. But recently, at least seventeen jurisdictions in the United States have enacted statutes abolishing the Rule in the case of perpetual (or near-perpetual) trusts. The prime mover behind this important development has been the federal Generation-Skipping Transfer Tax. This Article traces the gradual decline of the common law Rule against Perpetuities, considers the dynamics behind the recent wave of state legislation, examines the problems that might result from the rise …
Linkous V. Candler The Future Of Acceleration Of Remainders In Georgia, Carl Jackson Spence
Linkous V. Candler The Future Of Acceleration Of Remainders In Georgia, Carl Jackson Spence
Georgia State University Law Review
No abstract provided.
Judicial Overkill In Applying The Rule In Shelley's Case, William A. Reppy Jr.
Judicial Overkill In Applying The Rule In Shelley's Case, William A. Reppy Jr.
Notre Dame Law Review
No abstract provided.
Judicial Overkill In Applying The Rule In Shelley's Case, William A. Reppy Jr.
Judicial Overkill In Applying The Rule In Shelley's Case, William A. Reppy Jr.
Notre Dame Law Review
No abstract provided.
Judicial Overkill In Applying The Rule In Shelley's Case, William A. Reppy Jr.
Judicial Overkill In Applying The Rule In Shelley's Case, William A. Reppy Jr.
Notre Dame Law Review
No abstract provided.
The Uniform Probate Code Extends Antilapse-Type Protection To Poorly Drafted Trusts, Lawrence W. Waggoner
The Uniform Probate Code Extends Antilapse-Type Protection To Poorly Drafted Trusts, Lawrence W. Waggoner
Articles
The Uniform Law Commission' promulgated a revised version of Article II of the Uniform Probate Code (UPC or Code) in 1990, and approved a set of technical amendments in 1993. As Director of Research and Chief Reporter for the Joint Editorial Board for the Uniform Probate Code (Board)2 and reporter for the UPC Article II drafting committee, I was privileged to serve as the principal drafter of these provisions. UPC Article II deals with the substantive rules governing donative transfers - intestacy; spouse's elective share; execution, revocation, and revival of wills; rules of construction for wills and other donative transfers; …
Present And Future Interests: A Graphic Explanation, Roger W. Andersen
Present And Future Interests: A Graphic Explanation, Roger W. Andersen
Seattle University Law Review
Few topics bedevil more law students than the law of present and future interests. With the goal of eliminating some of the confusion, this Article highlights the basic doctrine with a new set of diagrams to represent graphically how various interests behave. This Article opens with a question many students ask and then proceeds to the core concepts in the law of present and future interests.
The Upc's New Survivorship And Antilapse Provisions, Edward C. Halbach Jr., Lawrence W. Waggoner
The Upc's New Survivorship And Antilapse Provisions, Edward C. Halbach Jr., Lawrence W. Waggoner
Articles
Law governing transfers of family property has long struggled with questions of survivorship in their many and varied forms. Important results can and regularly do turn on how such issues are resolved.
The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner
The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner
Articles
Uniform perpetuity reform is on the march, and Oregon has joined the parade. On January 1, 1990, the Uniform Statutory Rule Against Perpetuities (Uniform Act) became effective in Oregon. Although promulgated only three years ago, the Uniform Act has been enacted in over twenty percent of the states and appears to be on its way toward enactment in several others. Prior to the adoption of the Uniform Act, Oregon followed the common-law Rule Against Perpetuities (common-law Rule). Noted for its unjust consequences, the common-law Rule disregards actual events and invalidates a contingent (nonvested) future interest merely on the grounds of …
The Uniform Statutory Rule Against Perpetuities: The Rationale Of The 90-Year Waiting Period, Lawrence W. Waggoner
The Uniform Statutory Rule Against Perpetuities: The Rationale Of The 90-Year Waiting Period, Lawrence W. Waggoner
Articles
The Uniform Law Commissioners promulgated the Uniform Statutory Rule Against Perpetuities in 1986. The perpetuity-reform efforts of the American Law Institute in the Restatement (Second) inspired the Uniform Act. The Restatement and the Uniform Act employ the so-called wait-and-see approach to perpetuity reform. Wait-and-see is a two-step strategy. Step One preserves the validating side of the common-law Rule Against Perpetuities (the common-law Rule): By satisfying the common-law Rule, a nonvested future interest in property is valid at the moment of its creation. Step Two is a salvage strategy for future interests that would have been invalid at common law: Rather …
Just Compensation And The Condemnation Of Future Interests: Empirical Evidence Of The Failure Of Fair Market Value, Laura H. Burney
Just Compensation And The Condemnation Of Future Interests: Empirical Evidence Of The Failure Of Fair Market Value, Laura H. Burney
Faculty Articles
Just compensation for future interests should be directly responsive to the Fifth Amendment by directly addressing its dictate rather than detouring through objective standards which stress valuation rather than fairness. It is generally inappropriate to strictly adhere to any one predetermined standard in compensating owners whose property has been taken. The reasons behind the rules that govern the compensation awarded to an owner whose property has been taken have not vanished. However, these rules are frequently forsaken. If the United States Supreme Court is taken at its word, the normative basis for providing just compensation in all takings cases should …
The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner
The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner
Articles
When the National Conference of Commissioners on Uniform State Laws recently approved the Uniform Statutory Rule Against Perpetuities, it may at long last have made perpetuity reform achievable in this country. Coming, as it does, on the heels of the 1981 promulgation of the Restatement (Second) of Property (Donative Transfers), which adopts the same general type of perpetuity reform, and having been unanimously endorsed by the House of Delegates of the American Bar Association, the Board of Regents of the American College of Probate Counsel, and the Board of Governors of the American College of Real Estate Lawyers, the Uniform …
Perpetuities: A Perspective On Wait-And-See, Lawrence W. Waggoner
Perpetuities: A Perspective On Wait-And-See, Lawrence W. Waggoner
Articles
Professor Dukeminier and I agree on most of the important points concerning perpetuity law and perpetuity reform. We agree that the Rule Against Perpetuities still serves a socially useful function of limiting dead hand control, and should not be abolished. We also agree that the common law Rule is needlessly harsh and should be softened. Finally, we agree on the type of reform that is most desirable-waitand- see. Our only disagreeihent-concerns the best method of marking off the wait-and-see perpetuity pe]iqod-the period of time during which dispositions that would have been invalid under the common law Rule are to be …
A Rejoinder By Professor Waggoner, Lawrence W. Waggoner
A Rejoinder By Professor Waggoner, Lawrence W. Waggoner
Articles
Since the patience of the reader and the space in this issue of the Law Review are nearing their limits, I wish to publish only two points in response to what Professor Dukeminier has written.. These points further support my position that Dukeminier's proposed statute would lead almost anyone to conclude that A, not X, is the causal relationship measuring life in Example 1 of my article.1 By implication, these points, along with the others made in my article, corroborate my overall thesis: Professor Dukeminier's proposed one-sentence statute2 cannot be counted a responsible way of identifying the measuring lives for …
Perpetuity Reform, Lawrence W. Waggoner
Perpetuity Reform, Lawrence W. Waggoner
Articles
After years of debate, perpetuity reform is still controversial. To be sure, there is agreement among virtually all of the commentators and experts in the field that the Rule Against Perpetuities is in need of reform. The disagreement, on the surface, centers on the methods of reform to be employed. At least three basic methods have been advanced: (1) specific statutory repair of discrete problem areas; (2) reformation; and (3) wait-and-see. Each method has its sponsors, and each has in one form or another been adopted as part of the law of a few states. These methods are not mutually …
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
Articles
In this article, which both summarizes and updates an extensively footnoted article published last year ("Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?" 130 University of Pennsylvania Law Rmiew 521 (1982)), we report on this new case law and discuss the analytic framework that we think it suggests and requires.
In Re Lattouf's Will And The Presumption Of Lifetime Fertility In Perpetuity Law, Lawrence W. Waggoner
In Re Lattouf's Will And The Presumption Of Lifetime Fertility In Perpetuity Law, Lawrence W. Waggoner
Articles
Adoption of children is an ever-present complication of class gifts and the Rule Against Perpetuities. Given this fac any effort to find the presumption of lifetime fertility rebuttable is largely illusory. The author demonstrates that the gift in In Re Lattouf's Will could have been sustained even in face of an irrebuttable presumption.
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Articles
Although it has been "axiomatic" that our courts do not entertain suits to reform wills on the ground of mistake, appellate courts in California, New Jersey, and New York have decided cases within the last five years that may presage the abandonment of the ancient "no-reformation" rule. The new cases do not purport to make this fundamental doctrinal change, although the California Court of Appeal in Estate of Taff and the New Jersey Supreme Court in Engle v. Siegel did expressly disclaim a related rule, sometimes called the "plain meaning" rule. That rule, which hereafter we will call the "no-extrinsic-evidence …
Loosening The Grip Of The Dead Hand: Shall We Abolish Legal Future Interests In Land?, C. Dent Bostick
Loosening The Grip Of The Dead Hand: Shall We Abolish Legal Future Interests In Land?, C. Dent Bostick
Vanderbilt Law Review
This Article is concerned with a dilemma in the law of Future Interests. The dilemma stems from the needs and demands of a modern society to convey land cleanly and quickly and from the desire of property owners, especially landowners, to direct from the grave the on-going disposition of their property. This desire of landowners has always played a role in English and American property law. Much of the energy of the early judiciary was devoted to counter balancing the numerous ingenious arrangements devised by persons to effectuate continual control of their property.