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Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Fraudulent Transfers: Void And Voidable, David G. Carlson

Articles

This Article explores the civil procedure attendant to private fraudulent transfer litigation (primarily outside the context of bankruptcy). In such litigation, courts ponder whether fraudulent transfers are void or voidable. In fact, they are both simultaneously! According to the theory "at law," a fraudulent transfer is "void." That is, a creditor with a judgment could simply levy the property from a fraudulent grantee as if the grantee had no property rights. This Article questions the constitutional viability of this ancient attitude. Meanwhile, "equity" viewed the transfer as voidable. The grantee gets title, but the title might be set aside. The …

Erisa Defined Benefit Plans Are Not "Trust" Worthy, Stewart E. Sterk

Articles

No abstract provided.

Heirs Property In Georgia: Common Issues, Current State Of The Law, And Further Solutions, Caitlin Henderson

Georgia Law Review

In Georgia, real property passes through an intestate estate
in the form of heirs property. Under this system, heirs share
ownership of the property as tenants in common. This form of
ownership poses several obstacles to realizing the land’s full
potential and, in certain circumstances, courts will partition
the property in forced sales or will physically divide the
property among the heirs. Heirs property and its accompanying
problems are particularly common in Georgia due to strict
policies concerning will execution formalities. Georgia and the
U.S. Congress have attempted to cure the problems associated
with heirs property through the adoption of …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Marriage Bans, Suzianne D. Painter-Thorne

Brooklyn Law Review

While marriage equality is thought to be the law of the land, that is not necessarily true for members of nearly a dozen Indian tribes that continue to prohibit same-sex marriage. Whether a tribe permits same-sex marriage rests on the tribes’ inherent authority to govern their own internal affairs. Acting pursuant to that inherent authority, many tribes were leaders on the issue of marriage equality, legalizing same-sex marriage when most states prohibited such marriages. Other tribes, however, like the Navajo Nation, limit marriages to “one man and one woman.” As a consequence, a married Indian couple may have their marriage …

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

Articles

In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Zoning For Families, Sara C. Bronin

Indiana Law Journal

Is a group of eight unrelated adults and three children living together and sharing meals, household expenses, and responsibilities—and holding themselves out to the world to have long-term commitments to each other—a family? Not according to most zoning codes—including that of Hartford, Connecticut, where the preceding scenario presented itself a few years ago. Zoning, which is the local regulation of land use, almost always defines family, limiting those who may live in a dwelling unit to those who satisfy the zoning code’s definition. Often times, this definition is drafted in a way that excludes many modern living arrangements and preferences. …

Discounts For Fractional Ownership Of Real Property Are Accepted, So Why Haven’T The Irs And Courts Accepted Discounts For Fractional Ownership Of Artwork?, Maren N. Eisenmesser

Brooklyn Journal of Corporate, Financial & Commercial Law

In 2014, the Fifth Circuit held that Mr. Elkins’s estate was entitled to apply a fractional ownership discount to determine the taxable value of the undivided interest in artwork. The estate received a $14 million refund plus interest. The Internal Revenue Code directs taxpayers to value the items in a gross estate at their fair market value. Fractional ownership adds another problem in the valuation of an estate’s interest property. In general, courts have accepted fractional ownership discounts for real property. In contrast, courts have been reluctant to apply a fractional ownership discount for artwork. This Note will argue that …

Unlimited Liability For Banks: Deposits As Fraudulent Transfers, Katherine Zampas

St. Mary's Law Journal

One of a trustee’s most valuable resources in bankruptcy proceedings is his avoidance powers. A trustee is charged with the duty to recover and recapture any property wrongfully removed from the estate by way of fraudulent transfer or preference. In some cases, a trustee has attempted to treat a debtor’s deposit into a bank account as a transfer, rendering it subject to his avoidance powers. Such a result will leave banks collaterally responsible as a transferee for a debtor’s conduct despite their lack of culpability and control over the funds.

The definition of transfer within the Bankruptcy Code is comprehensive …

Dr. Jekyll & Mr. Holmes: A Tale Of Two Testaments, Stephen R. Alton

South Carolina Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

"Body" Building: Expanding Arkansas's Standard For Holographic Wills, Andrew L. Lawson

Arkansas Law Review

In times past, entirely handwritten documents represented the vast majority of holographic wills. These homemade testaments included dense pages of text that the drafter diligently memorialized by hand, carefully crafted letters with testamentary directions to the author’s loved ones, and unassuming notes tucked away in a drawer, perhaps with names, proportions, and shorthand property descriptions. If a probate court encountered a holographic testament, odds were that it resembled these traditional examples.

Domestic Asset Protection Trusts: A Debtor's Friend And Creditor's Foe, Nora Hood

Brooklyn Journal of Corporate, Financial & Commercial Law

In 1997, Alaska enacted the first law in the United States legalizing Domestic Asset Protection Trusts (DAPTs), also referred to as self-settled asset protection trusts, as valid legal entities. Under traditional trust law, a debtor cannot shield assets from creditors by placing them in a trust for his or her own benefit. Alaska’s statute allowing DAPTs calls the traditional rule into question. This Note will examine use of DAPTs in the United States, including whether or not the recently amended Uniform Voidable Transaction Act would consider any transfer to a DAPT voidable per se, and discuss an approach that intends …

Afterlife Of The Death Tax, Samuel D. Brunson

Indiana Law Journal

More than a century ago, Congress enacted the modern estate tax to help pay for World War I. Unlike previous iterations of the estate tax, though, this one outlived the war and accumulated additional goals beyond merely raising revenue. The estate tax helped ensure the progressivity of the tax system as a whole, and it limited the hereditary ability to accumulate wealth.

This modern estate tax almost instantly met with opposition, though. The opposition has never been sufficient to entirely eliminate the estate tax, but it has severely weakened its ability to raise revenue and to prevent the accumulation of …

Standing For Standing Rock?: Vindicating Native American Religious And Land Rights By Adapting New Zealand's Te Awa Tupua Act To American Soil, Malcolm Mcdermond

Dickinson Law Review (2017-Present)

On February 23, 2017, the Standing Rock Sioux Tribe (“Tribe”) was forced to disband its nearly year-long protest against the construction of the Dakota Access Pipeline, which threatened the integrity of its ancestral lands. The Tribe sought declaratory and injunctive relief in the United States District Court for the District of Columbia, but the court ruled against the Tribe and failed to protect its interests. While the United States was forcibly removing Indigenous protesters, other countries were taking steps to protect Indigenous populations. In unprecedented legislative action, New Zealand took radical steps to protect the land and cultural rights of …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Pascua V. Bayview Loan Servicing, Llc, 135 Nev. Adv. Op. 4 (Feb. 7, 2019), Scott Cooper

Nevada Supreme Court Summaries

The Court determined that an individual who has been appointed special administrator of a decedent’s estate is entitled to participate in the Foreclosure Mediation Program if the property is the special administrator’s primary residence, and they retain an ownership interest through intestate succession laws.

Hb 121 - Property, Wills, Trusts, And Estates, Colt Burnett, Ben Dell'orto

Georgia State University Law Review

The Act amends several aspects of trust law, including updating the application of the Uniform Statutory Rule Against Perpetuities in Georgia by extending the time within which a nonvested property interest or power of appointment must vest from 90 to 360 years. The Act also allows for modifications of a trust without judicial approval in some cases. Many passages are simplified, including the calculation of compensation for a trustee, which can now be modified through different procedures. Finally, the Act codifies the role of trust directors.

Sb 301 - Wills, Trusts, And Administration Of Estates, Morgan S. Ownbey, Paul M. Napolitano

Georgia State University Law Review

The Act creates the “Revised Uniform Fiduciary Access to Digital Assets Act,” extends fiduciaries’ powers to include managing tangible property and digital assets, and provides conforming cross-references for a conservator.

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate in its conclusion …

The Limited Duties Of Lawyers To Protect The Funds And Property Of Nonclients, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Issues arise daily in law practice about the duties owed by lawyers to nonclients with respect to funds or property entrusted to them. In resolving those issues, care must be exercised when interpreting state versions of Model Rule 1.15, the American Bar Association’s pattern ethics rule on safekeeping of funds and property. Otherwise, a lawyer’s duties to third persons may too readily encroach on the performance of obligations owed to clients, as well as on the legitimate interests of lawyers themselves.

As numerous authorities have recognized, lawyers are obliged to protect the property interests of third persons only if they …

The Federal Law Of Property: The Case Of Inheritance Disclaimers And Tenancy By The Entireties, David Gray Carlson

Washington and Lee Law Review

No abstract provided.

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

Liberty And Community In Marriage: Expanding On Massey’S Proposal For A Community Property Option In New Hampshire, Jo Carrillo

The University of New Hampshire Law Review

This article argues that intimate partners should have the right to adopt a sharing economy within marriage. Forty-one U.S. states employ a separate property regime for property acquired during marriage; of these, only two allow married couples to opt out of the separate property system and hold their assets as community property. Nine U.S. states are community property states. To encourage equal partnership in marriage, Calvin Massey proposed that New Hampshire, a separate property state, enable a community property option. This essay expands on Massey’s proposal by comparing it to three other marriage reform proposals: two based on privatization, and …

Property Interests In Digital Assets: The Rise Of Digital Feudalism, Natalie M. Banta

Cardozo Law Review

The emergence of digital assets has created a host of new legal questions regarding their status as a property interest. Digital assets consist of intangible interests like e-mail accounts, social media accounts, reward points, and electronic media. These assets seem like a property interest, but because digital assets are a creature of contract, private contracts determine whether an owner can use, sell, transfer, exclude, donate, or dispose of the asset in a testamentary instrument. These digital asset contracts often take an unprecedented step of prohibiting or severely limiting the transfer of digital assets after death. By unilaterally eviscerating a long …

What's Wrong With Partial Intestacy?, Richard F. Storrow

Marquette Law Review

This article questions whether wills law's disapproval of partial intestacy rests on defensible assumptions about testamentary intent. After examining the causes of and antidotes to partial intestacy, I make three primary points. First, the presumption against intestacy applies only to wills that contain an ambiguous bequest of the residue. Second, the law's disapproval of partial intestacy is due in part to its failure to make an important distinction between testamentary intention and dispositive intention. Third, a theory of passive intention, heretofore barely alluded to in the law of wills, supplies the necessary validation of partially intestate estates.