Yearly Archives: 2010
Mar 13, 2010 Tom GallanisTrusts & Estates
John H. Langbein, Burn the Rembrandt? Trust Law’s Limits on the Settlor’s Power to Direct Investments, 90 B.U. L. Rev. 375 (2010).
Tom Gallanis
There is a central tension in the law of trusts between the rights of the settlor and of the beneficiaries. On the one hand, the organizing principle of the law of donative transfers, as stated in Section 10.1 of the Restatement 3d of Property (Wills and Other Donative Transfers), is that the “donor’s intention is given effect to the maximum extent allowed by law.” On the other hand, the Restatement 3d of Trusts emphasizes in Section 27(2) that “a private trust, its terms, and its administration must be for the benefit of its beneficiaries.” A similar benefit-the-beneficiaries rule is codified in Section 404 of the Uniform Trust Code (UTC) and made mandatory in UTC Section 105.
This essay, Burn the Rembrandt? Trust Law’s Limits on the Settlor’s Power to Direct Investments, by one of America’s leading scholars of trust law, Professor John Langbein of the Yale Law School, explores the limits that trust law places on the power of the settlor, as the author of the trust’s terms, to direct the trustee’s investment decisions. The essay is a response to an earlier article in the Boston University Law Review by Professor Jeffrey Cooper, in which Professor Cooper criticized the benefit-the-beneficiaries rule, instead proposing greater deference to the intentions of the settlor, for example where the settlor “intentionally and thoughtfully impaired beneficiaries’ economic rights.” See Jeffrey A. Cooper, Empty Promises: Settlor’s Intent, the Uniform Trust Code, and the Future of Trust Investment Law, 88 B.U. L. Rev. 1165, 1166 (2008). Continue reading "Whose Trust is It?"
Mar 13, 2010 Donald TobinTax Law
Mayer, Lloyd H.,
Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise,
89 B.U. L. Rev. 1137 (2009),
available at SSRN.Although the next Presidential election is still a couple of years off, one controversy that is sure to return to center stage is the prohibition in section 501(c)(3) that bans 501(c)(3) organizations from intervening in a political campaign for or against a candidate for public office. The Alliance Defense Fund has set up a “pastor initiative” to create a test case regarding a religious leader’s right to endorse a candidate from the pulpit. I, and others, have participated in a series of debates regarding this issue, and I have argued that the campaign ban is constitutional. In preparing for one of the debates, I read Lloyd Mayer’s article, Politics and the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise. Professor Mayer’s article puts a new twist on an old issue, and provides a pathway for the Supreme Court to follow when it confronts the issue. I hope Mayer’s article is cited in the minority opinion, but the article is an important contribution for people thinking about campaign intervention and section 501(c)(3) organizations.
As a brief introduction, proponents of the campaign ban argue that it is constitutional for Congress to condition tax-exempt status on a set of restrictions that ensure that organizations are acting consistently with the purpose of the exemption. In this context, Congress has determined that organizations that receive a subsidy from the government in the form of tax exemption should not be involved in endorsing candidates. (See Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983), upholding the limitation on lobbying contained in 501(c)(3)). In a sense, such actions are deemed by Congress to be not charitable. (See Bob Jones University v. United States, 461 U.S. 574 (1983), denying tax-exempt status to Bob Jones University because it discriminated based on race and determined that such discrimination prevented an organization from being charitable). Religious leaders have a right to endorse candidates, work for candidates, and run for office. They simply cannot do so on behalf of 501(c)(3) organizations. Continue reading "Politics at the Pulpit"
Mar 13, 2010 Chris BuccafuscoIntellectual Property Law
J. Shahar Dillbary,
Trademarks as a Media for False Advertising,
31 Cardozo Law Review 327 (2009), available at
ssrn and through
Cardozo Law Review.
What if you learned that those Niman Ranch steaks you’ve been purchasing for $40 per pound were no longer pasture-raised? What if Aveda, without notifying you, decided to begin testing its products on animals? Or if your Bridgestone tires were no longer union-made? In each of these cases, it would be nearly impossible to detect the change merely by using the product. For an increasing number and variety of products, consumers choose a particular brand or pay premium prices based on imputed qualities that they never experience. Trademark and false advertising law exist to protect consumers from deceptive branding practices, but the situations described above are currently immune from liability. Or at least they will be until more people read Shahar Dillbary’s new paper.
Since its origin in the tort of deceit, trademark law’s goal has been the prevention of passing-off, or as Dillbary refers to it, inter-brand fraud. The typical case is one where the consumer, intending to purchase A’s goods is fraudulently induced to purchase B’s. Trademark law exists to protect both producers and consumers and to minimize the substantial deadweight losses that would otherwise exist if consumers were forced to undertake extensive searches to obtain the appropriate products. As Dillbary notes, however, trademark law is substantially less concerned with situations of intra-brand fraud where “the trademark owner uses its own mark to misrepresent its own goods.” Dillbary, at 334. According to Dillbary the unequal treatment of trademark misuse stems from the widely accepted premise that “the only legally relevant function of a trademark is to impart information as to the source or sponsorship of the product.” Id. at 332, quoting Smith v. Chanel, 402 F.2d 562 (9th Cir. 1968). This premise ignores the substantial role that a mark play in providing information about the product itself, and it enables a particularly insidious class of consumer fraud. Continue reading "“This Milk Doesn’t Taste Hormone-free”: Creating Trademark Liability when Companies Alter Credence Qualities"
Mar 1, 2010 Herbert BurkertTechnology Law
“Since the beginning of time, for us humans, forgetting has been the norm and remembering the exception.” (2) Advances in information technology have been shifting this default, Viktor Mayer-Schönberger, an Associate Professor of Public Policy and Director of the Information and Innovation Policy Research Centre at the Lee Kuan Yew School of Public Policy, National University of Singapore, argues. This shift may have grave consequences. Therefore, the default needs to be reset. What these grave consequences are and how the reset can be managed are the core issues of his book.
At this stage it is my time for full disclosure: The author of Delete has been a long time friend. He is Austrian and I am German. We befriended at a time when the people in the field of information and law were all on a first name basis, and their numbers such that you could easily remember them without any technical support. Both our nationalities point to national memories, which, although different, keep haunting us and our countries, and Mayer-Schönberger does not leave them unmentioned. And finally, at about the time the book came out, the city archive building of my hometown Cologne, containing the city’s 2000 years of memory, collapsed into the excavation site of a subway tunnel. All this did not make the reading of Delete the reading of just another treatise. Continue reading "The CyberArt of Forgetting"
Feb 17, 2010 Orin KerrCriminal Law
Orin Kerr
I am a big fan of the criminal law scholarship of Paul Robinson. This article in particular is a valuable work of scholarship that should be helpful to any professor or student of criminal law.
To understand the value of the article, consider the beginning of first-year classes in criminal law. The standard way to teach criminal law is to begin with the two basic reasons why we punish criminal conduct: Utilitarian reasons, such as deterrence, and retributive reasons, such as to achieve “just deserts.” Utilitarian theories are easy to explain and are intuitive to most students. On the other hand, criminal law professors generally struggle to teach retributive theory. The topic seems impossibly vague: Different academic theorists have different theories as to what they personally think retribution should mean, but those academic theories often seem quite apart from what most citizens actually feel. The result is an uncomfortable gap in which professors teach retribution without offering a clear sense of exactly what retribution actually is or how retributive theories should play into arguments about criminal punishment. Continue reading "The Intuition of Retribution"
Feb 11, 2010 Ron WrightCriminal Law
Ron Wright
Ric Simmons has written an article that makes sense of two long-term trends in the privatizing of criminal justice. He links a growing body of legal scholarship about private policing to an enormous academic literature on restorative justice, and reframes them both as part of a long-term trend toward co-existing public and private systems for delivery of criminal justice.
Simmons begins this enterprise by describing the enormous growth of private law enforcement in the United States over the last few decades. It is an exceptionally timely topic. Much of our criminal procedure framework builds on the assumption that law enforcement is a public function, performed by state actors, but that vision is increasingly removed from reality. By some estimates, private security and investigative workers outnumber public police officers by more than a three-to-one ratio. Simmons capably summarizes here the groundbreaking work of David Sklansky and Elizabeth Joh, who brought these developments to light for the legal academy over the last ten years. Simmons then observes that the relative lack of legal regulations that apply to private police actors may not matter as much as we once thought. Many users of private policing do not bother to invoke the public adjudicative system, so the admissibility of the evidence that private police collect is not relevant in many cases. Continue reading "Why is Criminal Justice Only Partially Privatized?"
Feb 8, 2010 Bridget CrawfordTrusts & Estates
Anne Alstott,
Family Values, Inheritance Law, and Inheritance Taxation,
87 Tax L. Rev. (forthcoming 2009), available at
SSRN.
Bridget Crawford
Now is a good time to die. Congress’s failure to take action on the extension of the estate tax caused it to “expire” on December 31, 2009. This repeal is scheduled to last for only one year, and Congress likely will enact some form of estate tax before then. So only those who die soon will be able to transmit wealth entirely tax-free. In the meantime, questions about the economics, fairness, morality of inheritance taxation–broadly defined–will figure prominently in political and social debates. Anne Alstott’s essay, Family Values, Inheritance Law, and Inheritance Taxation, forthcoming in the Tax Law Review, will help ground these discussions.
Alstott’s argument is that taxing inheritance can be consistent with valuing families; it all depends on what view of the “family” one takes. Alstott begins by locating her work in the academic debate about inheritance tax (the umbrella term she uses to refer to wealth transfer taxation generally, acknowledging that there is no federal inheritance tax per se). She launches her analysis on the springboard of Tom Nagel’s argument that “the right to use one’s resources to benefit one’s family” [1] is at odds with inheritance taxation. Alstott evaluates this claim using three perspectives on the family – she calls them the liberal, conventional, and functional views. She synthesizes these from a careful reading of Jens Beckert’s historical study, Inherited Wealth (2008). Roughly characterized, the liberal view approaches the family as a private sphere within which individuals should have freedom to choose their beneficiaries. The conventional view construes the family as a privileged unit of economic and social organization that transmits identity and values from generation to generation. A functional view emphasizes the family’s socio-economic welfare role–i.e., providing needed financial and other assistance to its members. Continue reading "A Good Time to Die: Family-Based Objections to Inheritance Taxation"
Feb 8, 2010 JotwellJotwell
Today we inaugurate a new Jotwell section on Trusts & Estates, edited by Prof. Bridget J. Crawford of Pace Law School and Prof. William LaPiana of New York Law School. Together they have recruited a great team of Contributing Editors.
This is the first section to join Jotwell since we started publishing in November, but it is only the first of many. Expect Jurisprudence and Work Law soon, with several others already planned to follow in the coming months. Please get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.
Feb 5, 2010 Lisa BressmanAdministrative Law
Philip J. Weiser,
Institutional Design, FCC Reform, and the Hidden Side of the Administrative State, 61
Admin. L. Rev. 675 (2009), available at
BePress and
SSRN.
Every so often, an article captures a persistent problem in a particular field. Phil Weiser has done just that. “In studying the modern administrative state,” Weiser writes, “legal scholars have failed to do their part in examining the questions related to institutional competence and institutional structure that determine whether administrative regulation can be effective.” Weiser, supra, at 676. He focuses on the institutional failings at the Federal Communication Commission (FCC). The situation at the FCC is serious, leading Larry Lessig to recommend that Congress abolish the agency. See id. at 677 (citing Lawrence Lessig, Rebooting the FCC, Newsweek.com, Dec. 23, 2008).
Weiser describes the main failing of the FCC as a tendency “toward ad hoc judgments and away from any principled framework for evaluating alternative courses of action.” See id. at 681. The agency has neither articulated general standards for key issues such as spectrum allocation nor engaged in proactive, strategic planning. To make matters worse, the agency also lacks a capacity for independent research and analysis and relies “’almost exclusively upon information and analysis supplied by’ the parties that appear before it.” See id. at 681-82 (quoting Nicholas Johnson, Towers of Babel: The Chaos in Radio Spectrum Utilization and Allocation, 34 Law & Contemp. Probs. 505, 530 (1969)). As a result, the FCC is easily captured—not so much in the sense that the regulated interests populate its ranks or drive its decisions but in the sense that it is beholden to its own institutional limitations. In Weiser’s words, the agency suffers from “a failure to approach issues strategically, to develop independent solutions, and anticipate issues ahead of particular crises.” See id. at 684. Weiser’s solution is not to abolish the agency but to repair its institutional processes. He has a number of concrete suggestions, among them encouraging strategic agenda setting, better use of notice-and-comment rulemaking, upgraded data collection and dissemination, and increased public participation in decisionmaking. Continue reading "Everything but the Agency"
Jan 28, 2010 Ann BartowTechnology Law
In this article Lauren Gelman discusses the tensions between free speech and privacy concerns on what she calls social networks with “blurry edges,” where information primarily intended for an audience comprised of friends and family members is available for the whole world to access. While these networks facilitate online community building, she says, they also create “an illusion of privacy that the law fails to recognize.” People think they have privacy through obscurity online, so they do not make efforts to fence potential trespassers out of their e-spaces. And they want to be accessible to friendly visitors, so they forgo the virtual gates and vicious dogs.
Gelman illustrates the concept in meet space by analogizing to the white pages of a phone book. Though most people do not want to receive calls from strangers, they prefer to be listed because they want some people to be able to ascertain their phone numbers and call them, some of the time. Online, people post pictures and other information without password protecting it, perhaps believing that people who do not have a wholesome interest in the material will bypass or ignore it. This creates externalities: When the openly available content references or depicts other people, those referenced folks are subject to the same level of exposure, but without having any choice in the matter. The more personal the information posted is, the more vulnerable everyone involved becomes. Continue reading "Bringing Blurry Online Privacy Into Sharp Relief"
