Taxation-Federal Estate and Gift Commons^™

Front Matter

ACTEC Law Journal

No abstract provided.

Shakespeare, Succession, And Estate Planning:Lessons From The Bard, Leslie Kiefer Amann

ACTEC Law Journal

Probated in 1616, Shakespeare's Will is surprisingly relevant today. Two daughters survived him, but his only son died at age 11. Wife and daughters could not inherit a business in the theater, so he made changes in structure of the businesses he owned, and reallocated assets to accommodate the loss of his male heir. Shakespeare left no autobiographical information, but by examining his legal documents, we see him shift a thriving business, dependent on the unique talents and active participation of its founder, to passive assets in modified entity structures and generate an income stream for female descendants. Changes made …

The Dark Side Of Codifying U.S. Trust Law, Thomas P. Gallanis

ACTEC Law Journal

For most of Anglo-American history, trust law was case law. The law of trusts was born and molded in the English Court of Chancery and then re-shaped by the courts of the U.S. states. The U.S. law of trusts primarily was to be found in the decisions of state courts and in respected secondary sources digesting and refining the rules from those decisions, such as the American Law Institute's Restatements and the multi-volume treatises on trust law originally authored by Austin Wakeman Scott or George Gleason Bogert. U.S. trust law no longer is primarily case law. In 2000, the Uniform …

Towards A Review And Reform Of The Gst Tax:Symmetry Of Exemptions, The Reverse Gst Taxelection, And Consistent Inclusion Ratio Reporting, Stephen W. Murphy

ACTEC Law Journal

No abstract provided.

Unintended Consequences Of Fetal Personhood Statutes: Examples From Tax, Trusts, And Estates, Bridget J. Crawford, Alexis C. Borders, Katherine Keating

Elisabeth Haub School of Law Faculty Publications

The laws of taxation, trusts, and estates are new fronts in the culture wars over abortion. After the Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, some anti-abortion states enacted fetal personhood statutes that have the potential to unsettle and destabilize longstanding legal doctrines that otherwise create predictability and stability in the laws of taxation and succession. This Article makes three principal claims: descriptive, predictive, and normative. First, the Article explores how Dobbs opened the door for states like Georgia to treat zygotes-embryos-fetuses as “dependents” for state income tax purposes. Second, the Article identifies some of the …

Artful Imbalance: How The Us Tax Code And State Trust Laws Enable The Growth Of Inequality Through High-Value Art Collections, Mimi Strauss

Brooklyn Law Review

The United States has become the leading jurisdiction for those who wish to buy and store high-value art and NFTs, pay as few taxes as possible, and ultimately secure their wealth for generations. This “onshore” tax crisis is the result of tax loopholes, money laundering, the securitization of art and NFTs, and the state-by-state trust system. These forms of tax dodging—both legal and illegal—contribute to wealth inequality and deplete the welfare state. As natural disasters and pandemics become ever more present, the United States will rely more heavily on taxes, and that burden should be carried by everyone, not just …

Resolving Unfairness In A Fair Way: How The Grantor Trust Rules Should Be Reformed, Aaron T. Anderson

ACTEC Law Journal

Affluent taxpayers often create one or more grantor trusts to achieve significant tax savings. By leveraging mismatches in the rules between the income and estate tax systems, these taxpayers avoid the compressed income tax brackets of trusts while minimizing the property that is included in their estates for estate tax purposes. Some commentators have argued that reform is needed to remove such mismatches. Yet, trusts that rely on the current grantor trust rules abound. This Note (1) provides a background and history of the rules and use of grantor trusts, (2) argues that harmonizing the estate and income tax systems …

The Importance Of Language In The Context Of Heirs' Property Policymaking, Molefi Mcintosh

ACTEC Law Journal

No abstract provided.

Policy Over Doctrine: A Brief History Of Us Trust Law, Lucas Clover-Alcolea

ACTEC Law Journal

US trust law is unique because whereas in English law the settlor drops out of the picture once he has created the trust, in the US the settlor’s intentions remain paramount. This fundamental difference in turn permits the recognition of spendthrift trusts, whereby the beneficial interest cannot be alienated, in the US whereas in England such trusts are generally invalid. Similarly, whereas in English law the beneficiaries of absolute trusts, and on occasion discretionary trusts, can collectively implode the trust by forcing the trustee to convey the trust fund to them via a Saunders v Vautier application, this is generally …

Unpacking The Digital Vault: Estate Planning Considerations For Non-Fungible Tokens, Ryan D. Tosto

ACTEC Law Journal

The purpose of this article is to shed some light on the emerging, yet largely undefined, principle of openness in EU law. After addressing the semantic confusion existing between openness and transparency, it attempts, through a textual and systemic interpretation of their respective legal bases, to identify the normative content of the European Union's turn to openness. It then explores the principle s potential for attaining its declared Treaty-sanctioned objectives: promoting good governance and ensuring the participation of civil society in the democratic life of the Union. It illustrates that, although openness largely maintains an instrumental rationale, aimed at enhancing …

Front Matter

ACTEC Law Journal

No abstract provided.

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Stakeholder Governance As Governance By Stakeholders, Brett Mcdonnell

Seattle University Law Review

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …