Saturday, May 28, 2011
Friday, May 27, 2011
Thursday, May 26, 2011
Drobac: "Abandoning Teenage Consent for Legal Assent: Harmonizing Developmental Sciences and the Law"
Jennifer Ann Drobac (Indiana Univ. School of Law - Indianapolis) has posted "Abandoning Teenage Consent for Legal Assent: Harmonizing Developmental Sciences and the Law" on SSRN. Here is the abstract:
Comparisons of recent California, New York, and Illinois civil law precedent concerning the juvenile “age of consent” for sexual activity reveal that states treat adolescent “consent” erratically. The new neuroscience and psychosocial evidence of adolescent development adopted by the U.S. Supreme Court in Graham v. Florida supports the movement to treat adolescents different from more developmentally mature adults. Moreover, adult prejudice and judicial bias against sexually active teenagers places teenagers at risk for sexual harassment and predation.
Conflicts between law and science, as well as between state civil and criminal law, mandate a revision of legal approaches to teenage “consent,” and perhaps not just with respect to consent to sexual activity. Drawing wisdom from recent scientific discoveries and traditional legal guidance, this presentation introduces a new mechanism to replace adolescent “consent,” legal assent. Legal assent presumes no threshold legal capacity but affords teenagers autonomous decision-making authority, as well as protection following misguided decisions. It highlights that recognition of legal assent might reduce legal bias, better protect teenagers, and encourage their responsible decision-making as they are “developing capacity.”
From the Seattle Times:
At the UW Monday, dozens of UW student-parents brought their children to class to draw attention to the lack of child care near the UW's Seattle campus, and to ask the university for help in providing more family-friendly areas around the school.
No one knows exactly how many UW students are parents, but the school's Graduate and Professional Student Senate (GPSS) estimates that one in 10 students is raising a child.
Lack of adequate child care is the third-greatest barrier to completing a college degree, said Ben Henry, vice president of the GPSS and a parent himself. The GPSS has been working on child-care issues for several years, mostly through legislative proposals, and students are now asking the university administration for help.
Read more here.
Hat Tip: Above the Law
Wednesday, May 25, 2011
Tuesday, May 24, 2011
Never heard of this one before...
From The Washington Times:
A key senator has asked the Social Security Administration to investigate how people who live their lives role-playing as “adult babies” are able to get taxpayer-funded disability payments — after one of them was featured on a recent reality TV episode wearing diapers, feeding from a bottle and using an adult-sized crib he built.
Sen. Tom Coburn, Oklahoma Republican and the Senate’s top waste-watcher, asked the agency’s inspector general to look into 30-year-old Stanley Thornton Jr. and his roommate, Sandra Dias, who acts as his “mother,” saying it’s not clear why they are collecting Supplemental Security Income (SSI) benefits instead of working.
“Given that Mr. Thornotn is able to determine what is appropriate attire and actions in public, drive himself to complete errands, design and custom-make baby furniture to support a 350-pound adult and run an Internet support group, it is possible that he has been improperly collecting disability benefits for a period of time,” Mr. Coburn wrote in a letter Monday to Inspector General Patrick P. O'Carroll Jr.
Read more here.
Monday, May 23, 2011
This article proposes to repeal the QTIP provisions in order to collect revenue now for transfers that are essentially transfers to third parties and not to the decedent's spouse. Because there are advantages of increased flexibility attendant to a QTIP as opposed to a PAT, this article proposes to take those repealed QTIP benefits and attach them to the PAT, which would greatly enhance that marital deduction trust form. A super-charged PAT would thereby be able to preserve the decedent's GST tax exemption (like a reverse QTIP), create a decedent's by-pass trust by allowing a PAT (or a partial PAT) "election-out," and create a decedent's state-only PAT marital deduction. The super-charged PAT would provide for much desired post-mortem tax planning without the complex and strict requirements of a disclaimer. Moreover, the new PAT would eliminate conflicts of interest and fiduciary problems inherent in the QTIP form of the marital deduction. Lastly, by repealing the QTIP provisions and by super-charging the PAT, the marital deduction would truly be a marital deduction and not a third party beneficiary tax deferral device.
I have criticized the QTIP trust on the basis that the QTIP provisions are both illogical and sexist. The QTIP provisions are illogical because they conflict with their stated public policy goal of taxing marital property when it leaves the marital unit and passes to other beneficiaries. Because the goal of the marital deduction is to tax property when it leaves the marital unit and because the QTIP expressly endorses passing the property to third parties at the first spouse’s death, the QTIP undermines the fundamental rationale for the marital deduction.
Likewise, the QTIP provisions are sexist. They treat women as the invisible spouse and they equate giving an income interest to women with giving them the corpus. With the QTIP, the first spouse to die controls the disposition of the corpus and he selects the decision maker who will make the QTIP election. The QTIP provisions implicitly equate giving an income interest to women with giving them the property itself because unlike the other exceptions to the terminable interest rule in which the widow is given a rough equivalent to outright ownership of the corpus, the QTIP provisions allow a marital deduction for the full value of the property at the husband's death even though the surviving spouse, the other half of the marital unit, receives only the income interest in that property.
A PAT provides the surviving spouse with both an income interest and a power to appoint the property to herself or to her estate; it is considered an equivalent to ownership although this article recommends that the PAT require that the surviving spouse be entitled to both an inter vivos and a testamentary power of appointment over the trust property. The PAT, however, has all but disappeared as a marital transfer because of the popularity of the QTIP. This article proposes to repeal the QTIP provisions but recognizes that repeal is virtually impossible because of certain well-liked features of the QTIP that have nothing to do with the decedent’s desire for dead hand control, but which provide advantages of increased flexibility in estate planning. Therefore, this article proposes to take those repealed QTIP “flexibility” benefits and attach them to the PAT to create a “super-charged” PAT to take the place of the QTIP trust.
From The Washington Post:
Three in four couples who married after 1990 celebrated a 10-year anniversary, according to census statistics reported Wednesday. That was a rise of three percentage points compared with couples who married in the early 1980s, when the nation’s divorce rate was at its highest.
Read more here.
Sunday, May 22, 2011
Merin: "Anglo-American Choice of Law and the Recognition of Foreign Same Sex Marriages in Israel - On Religions Norms and Secular Reforms"
Yuval Merin (COMAS) has posted "Anglo-American Choice of Law and the Recognition of Foreign Same Sex Marriages in Israel - On Religious Norms and Secular Reforms" (36 Brooklyn J. Int'l L. 509 (2011)) on SSRN. Here is the abstract:
Israeli same-sex couples who marry abroad may register as "married" in the Population Registry and may enjoy a few of the rights associated with the institution, but their marriages are unrecognized for most other purposes. Since the field of marriage recognition is not regulated under Israeli positive law, the courts will have to decide whether to apply the English personal law system or the American principle of lex loci celebrationis. A critical comparison between the two competing systems reveals that the American rule is preferable since it best promotes the policy objectives which choice of law rules in the field of marriage recognition should seek to achieve. It is also preferable since it best corresponds to the unique social and legal conditions prevalent in the State of Israel. Foreign marriages performed by Israeli same-sex couples (valid in the place of celebration) should thus be recognized, subject to the public policy exception. Religious norms, which are exclusively applied in matters of marriage and divorce within Israel, should not be considered in the framing of the public policy exception, which should be interpreted narrowly, as protecting only democratic, secular, rational and liberal values. Thus, and based on the scope and interpretation of the public policy doctrine in Anglo-American law, the prohibition on same-sex marriages within Israel does not reflect a strong enough public policy for the invalidation of such marriages when contracted abroad.