Wills, Trusts & Estates Prof Blog

'Dead' woman found to be still alive in body bag at morgue: reports

A 90-year-old woman in Brazil, Norma Silveira da Silva, was mistakenly declared dead by hospital staff in São José. She was placed in a body bag and sent to the morgue for preservation. However, a crematorium worker discovered she was still alive when preparing to cremate her. She was rushed back to the hospital in poor condition.

The woman's caregiver, Jéssica Silvi Pereira, criticized the rushed process, noting that the family wasn't given a chance to say goodbye. The death certificate mentioned a urinary tract infection as the cause. The crematorium worker observed unusual signs, such as the body feeling warm, suggesting she may not have been dead when declared.

For more information see Stepheny Price “‘Dead’ woman found to be still alive in body bag at morgue: reports”, Fox News, November 30, 2023.

Intercategorical analysis in lawmaking

Adam J. Hirsch (Professor of Law, University of San Diego School of Law) recently posted on SSRN his article entitled Intercategorical Analysis of Law which appears in 16 Wash. Univ. Jur. Rev. 45 (2023). Below is the abstract of the article:

This Article advocates the routine use of intercategorical analysis in lawmaking: When formulating (or revisiting) rules within one legal category, courts, legislators, and codifiers alike should explore analogous doctrines that prevail in related categories. Such exploration may provide lawmakers with both inspiration and data relevant to formulating the doctrine under consideration. The Article offers three, disparate illustrations of how intercategorical analysis could improve our law, regarding (1) nonpossessory liens, (2) formalities for transfers of property, and (3) in rem proceedings for winding up different kinds of estates. The Article also addresses the potential relevance of intercategorical analysis when drawing the boundaries of legal categories. Finally, the Article assesses the risks inherent in intercategorical analysis and relates this mode of analysis to other “law-ands.”

When Does Life Stop? A New Way of Harvesting Organs Divides Doctors.

A new organ retrieval method for hearts from donors is sparking a debate on the boundary between life and death in hospitals. NYU Langone Health supports the way, claiming to have been the first to try it in the U.S. in 2020. However, NewYork-Presbyterian Hospital, with the city's most extensive organ transplant program, has rejected it after an ethics committee review. 

The controversial technique involves expanding the pool of potential heart donors to include comatose patients not declared brain dead and whose families have withdrawn life support. The procedure restores the heart after death, but ethical concerns persist among some surgeons and bioethicists.

Critics of this new organ retrieval method raise ethical concerns, particularly related to the traditional definition of death involving irreversible cessation of the heart and blood circulation. Restarting blood flow in the new procedure challenges this definition, leading some to question the validity of the initial death declaration. 

Another controversial aspect is using metal clamps to cut blood flow to the donor's head after heart revival, aiming to prevent any potential restoration of brain activity. This precaution implies a recognition that the donor may not be legally dead. The legal determination of death involves two criteria: circulatory death and brain death. The new potential donors, not declared brain dead, exhibit some signs of life, such as blinking or gasping when the breathing tube is removed.

For more information see Joseph Goldstein “When Does Life Stop? A New Way of Harvesting Organs Divides Doctors”, The New York Times, November 22, 2023.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention. 

Article: The Concept of Personality in Private Law

Paul B. Miller (Notre Dame Law School) recently published, The Concept of Personality in Private Law, Oxford University Press, November 2023. Provided below is an Abstract:

This chapter examines the concept of personality in common law private law. That we have such a concept is easily missed. We live in a time in which entrenched legal nominalism and moral anti-realism have generated fragmentary conceptions of personality. Some examine the concept in a reductionist way, equating legal personhood with possession of requisites of personal and/or group agency, or by tethering it to now-antiquated ascriptions of legal status. Others combine nominalism with casual positivism, suggesting that “legal personality” consists merely in different ascriptions made of different objects (persons, places, things, animals) whom lawmakers have declared “persons.”

In the chapter, I challenge all of this. I claim that the concept of legal personality found at common law is reasonably coherent, its development having been disciplined as a matter of analogical reasoning by recourse to a focal exemplar (cognitively mature and intact natural persons). Furthermore, I argue that the concept consists in three irreducible facets – legal agency (and its requisites), the ascription of legal entitlements and burdens, and legal statuses – each of which is integrated with the others. And, finally, I argue that the concept is interstitial: it is assumed by, while also joining or modulating the application of, other legal concepts. Given that systems of posited law are constructed normative systems meant to serve those amenable of normative guidance, the normative primordiality of legal personality is implied by the nature of law. Law could have no author or object were it not made by, and in contemplation of, persons.

Trustees Turning Green: Risk Management and Structuring Solutions in the Context of ESG

Vincent Ooi (Singapore Managment University, Yong Pung How School of Law) and Alvin See (Singapore Managment University, Yong Pung How School of Law) recently published, Trustees Turning Green: Risk Management and Structuring Solutions in the Context of ESG, October 2023. Provided below is an Abstract:

Whether a trustee is permitted to have regard to ethical considerations when making investment decisions has been a hotly debated topic attracting diverse views. In view of this legal uncertainty, it is unsurprising for trustees to be cautious about engaging in ESG investing, hence impeding efforts to divert more funds into sustainability causes. Against this background, this article explores a variety of structuring tools which settlors may use to empower trustees and manage associated risks while ensuring accountability to the beneficiaries.

Intergenerational Wealth Transfers: Do Expectations of Leaving an Inheritance Differ Between Black and White Families?

Michael Neal, Amalie Zinn, Marokey Sawo, Linna Zhu published a Research Report: Intergenerational Wealth Transfers: Do Expectations of Leaving an Inheritance Differ Between Black and White Families? for the Urban Institute, October 31, 2023.  Special thanks to Naomi Cahn (University of Virginia) for bringing this article to my attention. Provided below is an introduction to the Report:

There is a Black-white gap in intergenerational wealth transfers, characterized by a lower likelihood that Black families receive them compared to white families. This report confirms this fact and suggests that the lower incidence of intergenerational wealth transfers among Black families is not because there is a lack of intent to leave a sizeable estate. Using the 2019 Survey of Consumer Finances, we find that Black families are similarly likely as white families to indicate an expectation of leaving a sizeable estate. This finding remains consistent across several economic and demographic dimensions. At the household level, this suggests that other barriers, such as sustaining wealth through economic cycles or the presence of a will, disproportionately limit the ability of Black families to realize their intentions to transfer wealth to future generations. At the macro level, it suggests that these frictions, and not Black families’ preferences, contribute to the impact of intergenerational wealth transfers on the broader Black-white wealth gap.

Article: To Avoid the Moore Morass, the Court Should DIG It — But It Probably Won’t

Michael J. Graetz (Columbia Law School; Yale Law School) published a paper, To Avoid the Moore Morass, the Court Should DIG It— But it Probably Won’t, Columbia Public Law Research Paper No. 4631166, 2023. Provided below is an Abstract to the Paper:

In this article, Graetz examines several of the briefs filed in Moore and argues that regardless of who wins the case, there will be no good outcomes if the Supreme Court holds that realization is a constitutional requirement. This article is based on a presentation on Moore to the International Tax Policy Forum in Washington on October 20. It has been updated to reflect amicus briefs in support of the government that were filed by October 23.

Could a Drug Give Your Pet More Dog Years?

Scientists, including those at biotech company Loyal, are exploring drugs to extend the lives of pet dogs, addressing the inevitable heartbreak of their shorter lifespans. The U.S. Food and Drug Administration has acknowledged progress in Loyal's efforts. However, ethical concerns arise, questioning if extended lifespans would result in a commitment to providing quality lives for aging dogs and potential issues if dogs outlive their owners. 

Critics suggest reforming breeding practices and improving access to veterinary care as alternatives. While longevity drugs are being explored, experts advise current measures for fostering healthier aging in dogs, such as maintaining a healthy weight, regular exercise, and mental stimulation. The goal is not immortality but enhancing the quality of dogs' lives.

For more information see Emily Anthes “Could Longevity Drugs for Dogs Extend Your Pet's Life?”, The New York Times, November 29, 2023.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention. 

Center for Rural Pennsylvania: Survey of Written Wills

A survey conducted in September 2023 by Susquehanna Polling and Research reveals that less than half of rural and urban adults in Pennsylvania have a written will outlining their wishes for handling money and estate after death. 

The poll involved 700 registered voters in Pennsylvania and was conducted from September 19-28, 2023, with a margin of error of +/-3.7 percent at the 95 percent confidence level. Respondents unsure if they had a written will were excluded from the analysis.

The analysis indicates that age and educational attainment play a role, with older and more educated individuals being more likely to have a written will. The top reason for not having a will is the perception of not needing one, mainly due to insufficient assets or the belief that the family will inherit everything. The survey also shows variations based on gender and race, with men and white individuals more likely to have a written will. Additionally, urban residents with higher educational levels are more likely to possess a will. 

Recognizing individuals' desires for asset distribution after death is crucial for families and presents an opportunity for community foundations. These organizations could benefit from potential benefactors' assets through basic planning efforts, contributing to community development. The study highlights that 46 percent of rural Pennsylvanians with a written will align with the national rate.

For more information see “Survey of Written Wills”, Center for Rural Pennsylvania, November 2023.

Sandra Day O’Connor, first woman Supreme Court justice, dies at 93

Sandra Day O'Connor, the first female Supreme Court justice, passed away at the age of 93 in Phoenix, Arizona. 

Diagnosed with dementia in 2018, she withdrew from public life, having served on the bench for 24 years. O'Connor was pivotal in landmark decisions and known for her diverse accomplishments, including being a judge, Arizona legislator, cancer survivor, and trailblazer for women, she received the nation's highest civilian honor from President Barack Obama.

O'Connor faced significant challenges in her early job search due to gender discrimination, with 40 law firms rejecting her for being a woman. Despite the setbacks, she persisted and accepted a legal secretary position. Opting for the public sector, she served as a deputy county attorney in San Mateo, California, and later worked as a civilian attorney in Germany. Returning to the U.S., she practiced law in Arizona, eventually becoming assistant attorney general in 1965. O'Connor entered politics, serving three terms in the Arizona Senate and making history as the first female majority leader in the United States in 1973.

Her perseverance led to her historic appointment to the Supreme Court in 1981, becoming the first woman on the Court. Despite facing early gender-based challenges, she felt a special responsibility to perform well and pave the way for future female appointments. O'Connor, a moderate conservative and often labeled a swing voter who, a term she rejected, emphasized her commitment to legal principles in decision-making. Her impact on the Supreme Court extended beyond her rulings, as she prompted the establishment of the first women's restroom near the courtroom, highlighting the Court's lack of female accommodations.

O'Connor retired in 2006 to care for her husband with Alzheimer's, and Samuel Alito succeeded her. She is survived by her three sons – Scott, Brian, and Jay – and six grandchildren, as well as her brother, Alan Day.

For more information see Juja Murgai and David Cohen “Sandra Day O’Connor, first woman Supreme Court justice, dies at 93”, Politico, December 1, 2023.