Tuesday, December 10, 2013
Yun-chien Chang (Academia Sinica - Institutum Iurisprudentiae) has recently published an article entitled, The Economy of Concept and Possession, (November 8, 2013). Provided below is the abstract to the article from SSRN:
The concept of possession has been debated at least since the mid-19th century, but to date scholars still do not have a consensus on how to define it. Civil codes in the European Continent and East Asia are also divided over how possession is delineated. Some countries distinguish possession and detention, whereas others use the terms possessors and agents in possession. A few jurisdictions consider possession to be a right, while others treats it as a fact. Some civil codes simply define possession as actual control, but others also require specific intents.
Drawing on Henry Smith’s economy of concept theory, this book chapter argues that a simpler concept of possession (with actual control as the necessary and sufficient condition) economizes on information costs and makes the possession law much easier to understand. The confusion in the civil codes and the scholarly literature arises from conflation of three different concepts: possession as a fact; possession as a (subsidiary) right that is one stick in the ownership bundle; and possession as a basis for acquiring and relinquishing titles, as in adverse possession, first possession, and abandonment. Actual control is the least common denominator in all possession-related issues; thus, possession qua actual control is a fact. The subsidiary possessory right is implied in the property structure, but never spelled out. It can be transferred from owners to, e.g., holders of usufruct. Finally, intents only matter when possessors gain or lose titles, and the required intents differ across contexts; thus, a specific intent should not be embedded in the baseline definition of possession, but left to specific doctrines.
Monday, December 9, 2013
Yun-chien Chang (Academia Sinica - Institutum Iurisprudentiae (IIAS)) recently published an article entitled, Optional Law in Property: Theoretical and Empirical Critiques, Wills, Trusts, & Estates Law eJournal, Vol. 9, No. 34 (Nov. 27, 2013). Provided below is the abstract from SSRN:
Since Calabresi & Melamed’s seminal article on property rules and liability rules, numerous law and economic articles have debated the efficiency of these two rules. Many of the follow-up articles contend that Calabresi & Melamed are wrong in arguing that property rules are more efficient when transaction costs are low. Put-option liability rules and other sub-types of liability rules have been developed, and they are claimed to be superior to property rules. As several property scholars have pointed out, however, the shadow examples in this so-called optional law literature are not property laws, and they have contended that property rules should be the default in property law. Built on this line of literature, this article argues that Calabresi & Melamed are actually correct — property rules are indeed more efficient than liability rules in property law in a low transaction-cost setting, because property rules better harness private information. In addition, this article develops a theory as to when call-option liability rules might be more efficient. This article also argues that Rules 3 and 4 are either unnecessary concepts or inefficient entitlement protection rules in the area of property, and that put-option liability rules are less efficient than call-option liability rules in property, because calls utilize private information better than puts. Finally, this article contends that liability rules are intrinsically different from financial options and legal options; thus, the option analogy is better avoided.
Lawrence W. Waggoner (University of Michigan Law School) has recently published an article entitled, The Creeping Federalization of Wealth-Transfer Law, (November 15, 2013). Provided below is the abstract to the article from SSRN:
This paper, titled “The Creeping Federalization of Wealth-Transfer Law,” is prepared for a symposium on the role of federal law in private wealth transfer. The symposium is to be held at Vanderbilt University Law School on February 21, 2014, and is sponsored by the American College of Trust and Estate Counsel Foundation. Symposium papers will be published in volume 66 of the Vanderbilt Law Review (Nov. 2014 issue).
This paper surveys areas of federalization of wealth-transfer law. 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, have not been a deterrent, and the results have been mostly disturbing.
The paper covers these topics: federal preemption of several areas of state law, the development of federal common law as a sometime substitute for state law, the federal tax exemption for perpetual trusts, and the right of posthumously conceived children of assisted reproduction to Social Security survivor benefits.
Sunday, December 8, 2013
Johann K. Brunner (University of Linz - Department of Economics, CESifo (Center for Economic Studies and Ifo Institute for Economic Research)) and Susanne Pech (University of Linz - Department of Economics) recently published an article entitled, Taxing Bequests and Consumption in the Steady State, CESifo Working Paper Series No. 4453 (October 31, 2013). Provided below is the abstract from SSRN:
We study the optimal tax system in a dynamic model where differences in wages induce differences in inheritances, and the transition from parent ability to child ability is described by a Markov chain. We characterize expected inheritances in the steady state and show that the Atkinson-Stiglitz result on the redundancy of indirect taxes does not hold in this framework. In particular, given an optimal income tax, a bequest tax as well as a consumption tax are potential instruments for additional redistribution. For the bequest tax the sign of the overall welfare effect depends on the reaction of bequests and on inequality aversion, while for the consumption tax the sign is always positive because the distorting effect is outweighed by the induced increase in wealth accumulation. A necessary condition for a positive welfare effect is the empirically validated relation that more able individuals on average have more able parents than less able individuals.
Friday, December 6, 2013
Seymour Goldberg, CPA, MBA, JD (Goldberg & Goldberg, P.C.) recently published an article entitled, In Bankruptcy, States Still Differ on Creditor Protection for Inherited IRAs, in the December 2013 issue of Ed Slott’s IRA Advisor.
This article focuses on whether inherited IRAs are protected from creditors’ claims as well as other asset protection issues related to retirement assets.
Thursday, December 5, 2013
The November 2013 issue of the Estate Analyst contains an end-of-year Q&A by Robert L. Moshman Esq. entitled, Explaining Trust Income Strategies.
The conclusion of 2013 is when many grantors, trustees, and beneficiaries will try to understand the full implication of current rules. Important questions for end-of-year planning, as well as long-term planning, will be posed to financial planning advisors. This Q&A hopes to provide timely and useful information about trust income tax strategies.
Wednesday, December 4, 2013
Filip Celadnik (Independent) recently published an article entitled, A Trust Fund as a Result of the Czech Attempt to Legally Transplant Trust: A Disappointment as a Child of an Expectation?, Wills, Trusts, & Estates Law eJournal, Vol. 9, No. 33: Nov. 20, 2013. Provided below is the abstract from SSRN:
The new Civil Code will establish a special legal concept of trust-like structures – the trust fund – and a new related property law, the so called the separate patrimony, into the Czech private law. The Czech Legislator has taken the normative regulation of trust in the Quebec Civil Code as the model for the legal regulation of the trust fund which is itself doctrinally based on the English trust. The author of this paper, recognising the theory and practise of this institute, understands and appreciates the intentions of the legislator in legally transplanting the English trust doctrine into the Czech legal order. However, as will be elaborated on further in this paper, the results of the process are less than satisfactory. The author of this paper deals first with the doctrinal incompatibility of common law and civil law and with the dual aspect of ownership in the common law. This discourse is necessary for the subsequent criticism of the separate patrimony and the related legal regulation of the trust fund. To this effect, the author pursues an analysis of a hypothetical unlawful transfer of property in the trust fund to a third party as well as contemplates the protection afforded to the beneficiaries. Based on these deliberations, the author of this paper subsequently discusses the alternative manners of transposition of the English trust into the Czech law, with a particular focus on the Italian approach by ratifying The Hague Convention on the Law Applicable to Trusts and on their Recognition. The crucial are conclusions drawn in the final part of the paper where the author, among others, considers whether there is any sense in the Czech Republic implementing the Quebec concept of trust, whether the Czech legislator even dealt in detail with the practical application of the theoretical concept of the separate patrimony and whether the chosen method of transposing the trust is the most suitable one. Further, the author of this paper questions the constitutional-compliance of the trust fund, the extent to which the trust fund will be used in the Czech Republic and whether the Czech legislator should not rather opt for the Italian method whilst transposing the English trust.
Tuesday, December 3, 2013
Arianne Renan Barzilay (Assistant Professor, University of Haifa School of Law) recently published an article entitled, You’re on Your Own, Baby: Reflections on Capato’s Legacy, 46 Ind. L. Rev. 557 (2013). Provided below is a portion of the introduction to her article:
Robert (Nick) Nicholas Capato and Karen Kuttner met in the mid-1990s, lived together for a few years, and later married. Shortly after their wedding, Mr. Capato was diagnosed with cancer and was told that chemotherapy “might render him sterile.” The Capatos, however, desired to have children together, and so, before beginning medication, Nick deposited sperm in a sperm bank to be frozen and stored. Despite Nick undergoing “aggressive treatment,” the Capatos were able to conceive through sexual intercourse, and Karen gave birth to a son. Shortly thereafter, Nick's health deteriorated. Still, the Capatos “wanted their son to have a sibling.” However, just a few months later, Nick passed away, leaving a will naming Karen, their son, and his children from a prior marriage as his heirs. After Nick's death, Karen underwent fertility treatments, using Nick's frozen sperm. She gave birth to twins, Brian Nicholas and Kayla N. Capato, eighteen months after their father's death. Soon after the twins' birth, Karen applied for surviving child's insurance benefits under the Social Security Act on the twins' behalf, based on Nick's earning record. Her claim was the basis of the U.S. Supreme Court's recent decision in Astrue v. Capato, and is the focus of this Article. While the case made headline news, there currently is a paucity of scholarship analyzing the case. This Article explores the Capato decision.
Part I discusses the Capato case and the Supreme Court's interpretation of the provisions of the Act at hand. Part II offers a contextual history of reproduction and breadwinning in America. Part III probes into the history of the Act, and especially the provisions at issue in Capato. Part IV analyses the Capato decision in light of the context put forth, offers an explanation of the Court's opinion that is informed by history, and shows how the Court drew the lines of the hetero-family model as, for the most part, still male-dominated. As this Article will demonstrate, the Capato Court's recent embarking into the world of reproductive technologies provides a unique opportunity to discuss the Court's construction of family, family relationships, and power dynamics for the twenty-first century.
Article on Comments on the Decisions of the Catalan Directorate General of Law and Legal Entities (March 2013)
Miriam Anderson (University of Barcelona, Faculty of Law) has recently published an article entitled Comments on the Decisions of the Catalan Directorate General of Law and Legal Entities (March 2013), (October 1, 2013). InDret, Vol. 4, 2013. The article is available in English as well as Catalan. Provided below is the introduction to the article:
Comments on the Decisions of the Catalan Directorate General of Law and Legal Entities dated 1 March 2013 (secret trusts and the interpretation of wills), 8 March 2013 (interpretation of wills: right of representation in testate succession) and 18 March 2013 (horizontal property: court decision rectifying the description of apartments).
Monday, December 2, 2013
Marshall B. Kapp, J.D., M.P.H. (Director, Florida State University Center for Innovative Collaboration in Medicine & Law) recently published an article entitled, The Nursing Home as Part of the Polst Paradigm, 36 Hamline L. Rev. 151 (Spring 2013). Provided below is the introduction to his article:
Improving the quality of care and quality of life for individuals with advanced, irreversible illness is a paramount goal from the perspectives of both ethics and public health. One aspect of achieving such improvement entails assuring that the care those individuals receive is consistent with their important, authentic, personal values and wishes. The physician and other professional members of the health care team are the experts on medical means to achieve specific outcomes, but the individual patient is the best expert about his or her own values, goals, and preferences. The quality of care and quality of life challenge is exacerbated by the fact that, as the medical and social ramifications of advanced illness unfold over time, many people receive care within several different settings, often moving back and forth among settings as their immediate needs and resources change. Consequently, it is imperative that the mechanisms we develop for the purpose of enforcing persons' personal care values and preferences follow individuals across and throughout the care continuum.
Many people with advanced, irreversible illness reach a point at which they need to receive most of their care in a nursing home, and a large proportion of those individuals ultimately die in that venue after receiving various forms of medical care there. The care actually provided to nursing home residents during the period prior to their deaths too frequently deviates from that which they, on the basis of their own values, really want. This article discusses one initiative-the Physician Orders for Life-Sustaining Treatment (POLST) paradigm-that holds the promise of improving the quality of care and quality of life for nursing home residents with advanced, irreversible illness by more closely reconciling the details of the actual care they receive at the most crucial juncture of their lives with their desired care in that context.
The next section of this article provides background on the intersection of nursing homes and the care of people with advanced, irreversible illness. First, it outlines the importance of nursing homes within the contemporary American health care enterprise and then describes the ways in which medical care decisions are made today in this context and identifies some of the major shortcomings of the status quo. The ensuing section proposes the POLST paradigm as a viable alternative to the status quo, laying a foundation by setting forth information on the nomenclature, definition, and legal status of the POLST concept and then specifically exploring the adaptability of the POLST paradigm to the nursing home setting. The advantages of this mechanism as compared with conventional Advance Directives (ADs) are highlighted. The article concludes that POLST can and should be an integral facet of ideal nursing home care for all willing and appropriate residents.