Sunday, June 14, 2015
M.C. Mirow (Professor of Law, Florida International University College of Law), recently published an article entitled, Testamentary Proceedings in Spanish East Florida, 1783-182, from Studies in Canon Law and Common Law in Honor of R. H. Helmholz, Page 281-301 (Troy L. Harris, ed., Berkeley: The Robbins Collection, 2015). Provided below is an abstract of the article:
The East Florida Papers in the Library of Congress reveal a great deal about law, legal institutions, legal practice, and legality in colonial Florida during the second Spanish period from 1783 to 1821. This contribution provides an initial study of the 372 testamentary proceedings related to 168 decedents recorded in these papers. It describes these cases and discusses the dossier of one case to illustrate the administrative and legal work done by Spanish officials to distribute a decedent's property.
Proceedings include individual claims for debts against estates; sets of documents related to the administration of estates such as wills, inventories, birth records, and marriage records; and a variety of petitions dealing with administration and the distribution of property. The materials provide a window into will making, family life and structure, commerce, women, and accidental and suspicious deaths. Numerous petitions sought the disposition, transfer, and manumission of slaves. The contribution concludes with a description and analysis of the documents related to the estate of Pedro Dimarache, a Corsican carpenter who died testate in St. Augustine in 1792.
Thursday, September 25, 2014
Wayne M. Gazur (Colorado), recently published an article entitled, The White Whale: Bringing Emotion and Relevance to the Contemporary Trusts and Estates Course, 58 St. Louis U. L.J. 785 (2014). Provided below is the introduction of the article:
The title of this Essay is intended to evoke two conflicting interpretations at the outset. According to one plausible perspective, the contemporary Trusts and Estates course remains a highly doctrinal property course, largely devoid of emotional appeal for most students. Further, as discussed below, it is also increasingly less relevant to the planning needs of most potential clients. Consequently, a teacher’s efforts to bring emotion and relevance to the course might seem to be an unsuccessful, frustrating quest much like Ahab’s search for the elusive white whale, Moby Dick.1
I try to develop a different perspective in my teaching of the course, and I establish that tone on the first day of class with Ishmael’s moving account of his will execution ceremony.2 This human, client-centered view of trusts and estates is increasingly a part of my course, enriching the doctrinal material. In terms of relevance, I believe that the Trusts and Estates course can still remain so, even amidst the profound changes to the manner in which many Americans transfer their wealth up on death and the increasing irrelevance of federal wealth transfer taxation.
Tuesday, September 23, 2014
Alyssa A. DiRusso (Cumberland), recently published an article entitled, Microlawyering and Simulations in Trusts and Estates Courses, 58 St. Louis U. L.J. 739 (2014). Provided below is the introduction of the article:
If practice makes perfect, law school is not yet a perfect experience for budding trusts and estates lawyers. The legal curriculum needs to include significant opportunities for students to learn through doing. When legal instruction is limited to purely academic study, students are deprived of important professional training.1 As recognized in many other professional schools, practice presents an invaluable opportunity for learning the reasoning necessary to be competent in the field.2 The benefits of integrating practice into legal education have been documented through psychological study. Through these studies, it was recognized that when comparing novice and experts, experts had developed “well-rehearsed procedures, or ‘schemas,’ for thinking and acting,” which allow experts to quickly apply this knowledge to current situations in a manner not developed in novice.3 The studies also revealed that the knowledge of experts is “conditioned, or related to contexts.”4 This evidence supports the proposition that purely academic legal education is merely a foundation for expertise, which can be developed only through the actual practice.5 An ideal exposure to trusts and estates practice is gained through microlawyering—a term I use to mean small-scale, real legal experiences. The term borrows from the concept of microlending. In microlending, budding entrepreneurs who need small amounts of capital to launch new enterprises receive modest loans from microfinancing institutions, empowering business owners to take action when traditional lending structures would not offer the opportunity to proceed.6 Although the investment is small,7 the impact can be substantial.8 So too in the classroom can enabling small-scale experience yield large-scale results.
Although clinics and externships can provide microlawyering opportunities, not all law schools have the resources to offer experiences in trusts and estates to significant numbers of students. Fortunately, it is also possible to provide microlawyering experiences to law students in traditional doctrinal courses as well as smaller skills classes. In this Article, I will describe two such activities and reflect upon the challenges microlawyering presents in these contexts.
In addition to microlawyering, simulations offer students the opportunity to develop skills in a practice-like context. Unbound by the restrictions of real legal practice, simulations are remarkably flexible and well-suited to a variety of classes. Like microlawyering, simulations illustrate the importance of learning to do and not just to think. They can be critical in not only providing experience and feedback in a safe setting, but in developing confidence in nascent lawyers. Later in this Article, I will explain many of the simulations I use in my three Trusts and Estates courses. To begin, I will describe the microlawyering projects.
Monday, September 22, 2014
John V. Orth (North Carolina), recently published an article entitled, What to Do With What's Left Behind, 58 St. Louis U. L.J. 707 (2014). Provided below is an excerpt from the article:
The need for a course in trusts and estates is succinctly explained in the great sources of Western civilization—Shakespeare and the Bible. Everyone will die, and dead people cannot take anything with them.3 Just about every element of the course begins with these inescapable facts—which is why I was amused to see a student’s comment on a recent course evaluation: “I wish he wouldn’t talk so much about death.”4
Perhaps the student had been misled by the title of the course, which like the caption on a modern life insurance policy skillfully elides the fact that it is all about death. Calling the course Trusts and Estates presents another truth-in-labeling problem because it gives pride of place to the trust, which is not considered in depth until halfway through the semester. In fact, the logical progression of the subject tracks the history of the law of succession: intestacy, wills, only then trusts—and many other legal arrangements besides.5
Sunday, September 21, 2014
David M. English (Missouri), recently published an article entitled, The Impact of Uniform Laws on the Teaching of Trusts and Estates, 58 St. Louis U. L.J. 689 (2014). Provided below is the introduction of the article:
Beginning in 1969 with the approval of the Uniform Probate Code (UPC),1 uniform laws have had a major impact on the teaching of the basic Trusts and Estates course. This is not the place to list the close to thirty uniform acts relating to Trusts and Estates that have been approved.2 Rather, this Article will focus on the impact that uniform laws have had on the content of what is taught in the Trusts and Estates course. Uniform laws are not written in a vacuum. Like other legislative enactments, they are the product of societal changes and changes in legal culture. This article will attempt to place the various uniform law enactments and their impact on the teaching of Trusts and Estates within the context of these broader trends. The following trends will be discussed:
I. The Decline of Probate
II. The Increasing Use of Trusts
III. The Repeal of the Rule Against Perpetuities
IV. The Decline of the Federal Estate Tax
V. The Changing American Family
VI. The Rise of Elder Law
Wednesday, August 13, 2014
Phyllis C. Taite has written a review on Robert H. Sitkoff’s recent article entitled, Trusts and Estates: Implementing Freedom of Disposition, 58 St. Louis U.L.J. 643 (Forthcoming, 2014). Provided below is an introduction to the review:
Professor Robert Sitkoff’s article, Trusts and Estates: Implementing Freedom of Disposition, provides practical information and addresses major themes for professors teaching trusts and estates including intestacy, wills, trusts and planning for incapacity. It is a wonderful primer for professors and students new to the area of estates and trusts. For the more seasoned professors, Professor Sitkoff provides policy questions that will certainly provide an opportunity for healthy debates amongst the students. There are only a handful of articles that explicitly address trusts and estates pedagogy; this article does not simply summarize the curriculum, but rather it encourages law faculty to think in a big picture way about the overarching issues. As such, it is an important contribution to the scholarly literature.
For the rest of the favorable review, see Phyllis C. Tate, Teaching Trusts and Estates, JOTWELL, Aug. 8, 2014.
Special thanks to Paul L. Caron (Pepperdine University School of Law) for bringing this article to my attention.
Friday, April 18, 2014
Barry Cushman (Notre Dame Law School) recently published an article entitled, Tax Recognition, St. Louis University Law Journal, Vol. 58, p. 825, 2014. Provided below is the abstract from SSRN:
This article was prepared for the St. Louis University Law Journal’s “Teaching Trusts & Estates” issue. Many law students take a course in Trusts & Estates, but comparatively few enroll in a class devoted to the federal wealth transfer taxes. For most law students, the Trusts & Estates course provides the only opportunity for exposure to some of the basic features of the estate tax, the gift tax, the generation-skipping transfer tax, and some related features of the income tax. The coverage demands of the typical Trusts & Estates course do not allow for intensive discussion of these issues, but there are numerous opportunities to introduce relevant tax considerations while teaching the substantive law of wills and trusts. Using the Dukeminier & Sitkoff casebook as an example, this article explores the opportunities for interstitial recognition of the tax issues often lying just beneath the surface of private law disputes. Seizing the opportunities that these cases present to introduce some basic tax concepts and planning strategies can alert students to simple methods of tax savings and help them to avoid costly potential estate planning errors.
Thursday, April 17, 2014
Karen E. Boxx (University of Washington School of Law) recently published an article entitled, Teaching Shakespeare in the Classroom: How an Annual Student Production of King Lear Adds Dimension to Teaching Trusts and Estates, St. Louis University Law Journal, Vol. 58, No. 3, pp. 751-65, 2014. Provided below is the abstract from SSRN:
King Lear is the archetypal story of the tension an difficulties in parent-child and sibling relationships. In a Trusts and Estates class, it reinforces the message that those relationships are the starting point and bedrock of this body of law and the vast system of rules that has been developed to resolve these conflicts.
This Article first summarizes the plot of King Lear and then describes the process I use to get the play produced by student volunteers. It then sets forth some of the estate planning and lawyering lessons King Lear presents and describes some of the skills I think the play production helps develop. Finally, the Article discusses the less traditional benefits from holding an in-class performance of a play.
This Article is part of the St. Louis Law Journal's annual teaching issue, which is devoted to Trusts and Estates in 2014.
Sunday, April 13, 2014
Thomas P. Gallanis (University of Iowa College of Law) recently published an article entitled, Trusts and Estates: Teaching Uniform Law, 58 St. Louis U. L. J. 761 (2014). Provided below is the abstract from SSRN:
The law school course in Trusts and Estates provides a valuable opportunity for students to gain a deeper understanding of the processes and products of one of the principal law-reform organizations in the United States: the Uniform Law Commission, also known as the National Conference of Commissioners on Uniform State Laws. Within the law school curriculum, the course in Trusts and Estates is well suited for this purpose because the Uniform Law Commission has been and will continue to be highly active and influential in the field of trust and estate law. This essay, prepared for a symposium issue of the St. Louis University Law Journal on "Teaching Trusts and Estates," proceeds in six main parts. Part I provides background on the Uniform Law Commission. Part II highlights the many uniform acts in the field of trusts and estates. Part III introduces the Joint Editorial Board for Uniform Trust and Estate Acts and its role in the on-going monitoring and updating of uniform acts in this area of the law. Part IV summarizes the process by which uniform laws are drafted, approved, promulgated, and enacted. Part V examines aspects of the structure of uniform laws which are important for purposes of law school teaching. Part VI discusses the procedures for updating and amending uniform laws. A brief conclusion follows.
Tuesday, April 8, 2014
Jerome Borison (University of Denver Sturm College of Law), Naomi Cahn (George Washington University - Law School), Susan N. Gary (University of Oregon - School of Law), and Paula A. Monopoli (University of Maryland Francis King Carey School of Law) recently published an article entitled, Contemporary Trusts and Estates – An Experiential Approach, Saint Louis University Law Journal, v. 58, 2014, p. 727-738. Provided below is the abstract from SSRN:
In this essay in a special issue dedicated to teaching trusts and estates, the co-authors of Contemporary Trusts & Estates: An Experiential Approach (2d. ed. Aspen 2014) reflect on how the teaching of trusts and estates can integrate policy, practice, doctrine, and centuries of tradition. They describe the genesis of their problem-based casebook and the influence of the Carnegie Report on their choice of pedagogic framework. Each of the co-authors embraced the fundamental principles advocated by the Carnegie Report, which counsels that legal education should integrate “theoretical and practical legal knowledge and professional identity.” This essay goes on to outline how the book incorporates a problem-based methodology as well as an innovative choice of ordering the chapters that tracks the chronological path of estate planning, addressing the lifetime use of trusts first, followed by issues of will validity and interpretation. Drafting exercises complement the problems as well as traditional cases that illuminate theory and practice. With chapters on planning for disability, the federal estate and gift tax, estate administration and charitable trusts as well as basic doctrine on intestacy, wills and trusts, the book reflects the contemporary challenges addressed by trusts and estates lawyers. The co-authors have found that the book’s innovative approach engages students in a way that makes the study of trusts and estates relevant and students practice-aware.
This article is part of the Journal's annual Teaching Issue, "created as a forum for scholars, judges, practitioners and students to discuss methods for the effective teaching and learning of particular law school courses. With the constant evolution of legal topics and instructional resource options, this issue provides a resource for professors, deans, and anyone interested in the continued development and improvement of legal education."