Articles
A Fresh Look at State Asset Protection Trust Statutes
Nov. 19, 2014—A Fresh Look at State Asset Protection Trust Statutes ABSTRACT This Article examines the rise of state asset protection trust (“APT”) statutes. It juxtaposes two apparently contrary trends: an increase in formal legal responses suggesting that the trusts created under these statutes are likely to have at best limited enforceability and an increase in the...
Unconstitutional Perpetual Trusts
Nov. 19, 2014—Unconstitutional Perpetual Trusts ABSTRACT Perpetual trusts are an established feature of today’s estate planning firmament. Yet little-noticed provisions in the constitutions of nine states, including in five states that purport to allow perpetual trusts by statute, proscribe “perpetuities.” This Article examines those provisions in light of the meaning of “perpetuity” as a legal term of...
Perpetuities and the Genius of a Free State
Nov. 19, 2014—Perpetuities-and-the-Genius-of-a-Free-State Commentary on Steven J. Horowitz & Robert H. Sitkoff, Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769 (2014). AUTHOR Associate Professor, SMU Dedman School of Law. For their helpful comments and criticism, I would like to thank Robert Sitkoff and the other participants in the 2014 Vanderbilt Law Review Symposium on “The Role of...
Federal Visions of Private Family Support
Nov. 19, 2014—Federal Visions of Private Family Support ABSTRACT This Article offers a new perspective on the relationship between family and federalism by analyzing why the government—whether state or federal—recognizes family at all. The Article examines the current balance between state and federal authority over family by reviewing the Supreme Court’s recent decisions in Astrue v. Capato,...
Disclaimers and Federalism
Nov. 19, 2014—Disclaimers and Federalism ABSTRACT The beneficiary of an inheritance has the right to disclaim (i.e., decline) it, within limits ordinarily set by state law. This Article examines situations where a beneficiary’s right to disclaim might instead be governed by federal law, as a matter of both existing doctrine and public policy. Issues of federalism arise...
Federalizing Principles of Donative Intent and Unanticipated Circumstances
Nov. 19, 2014—Federalizing-Principles-of-Donative-Intent-and-Unanticipated-Circumstances Commentary on Adam J. Hirsch, Disclaimers and Federalism, 67 Vand. L. Rev. 1871 (2014). AUTHOR Vice Dean, Professor of Law, and Judge Norma L. Shapiro Scholar, Rutgers School of Law–Newark. This Comment was prepared in connection with the Vanderbilt Law Review Symposium on “The Role of Federal Law in Private Wealth Transfer” (February 21,...
Strange Bedfellows: The Federal Constitution, Out-of-State Nongrantor Accumulation Trusts, and the Complete Avoidance of State Income Taxation
Nov. 19, 2014—Strange Bedfellows- The Federal Constitution, Out-of-State Nongrantor Accumulation Trusts, and the Complete Avoidance of State Income Taxation ABSTRACT With the maximum rate of federal income tax at 39.6%, the Obamacare Tax adding another 3.8% tax, and some state income tax rates exceeding 9%, taxpayers in the highest brackets have been seeking to develop strategies to...
Pro and Con (Law): Considering the Irrevocable Nongrantor Trust Technique
Nov. 19, 2014—Pro-and-Con-Law-Considering-the-Irrevocable-Nongrantor-Trust-Technique Commentary on Jeffrey Schoenblum, Strange Bedfellows: The Federal Constitution, Out-of-State Nongrantor Accumulation Trusts, and the Complete Avoidance of State Income Taxation, 67 Vand. L. Rev. 1945 (2014). AUTHOR Whelan W. and Rosalie T. Palmer Professor of Law at Samford University’s Cumberland School of Law. J.D., University of Texas School of Law; B.S., Psychology, Carnegie...
Regulation by Hypothetical
Oct. 17, 2014—Regulation by Hypothetical ABSTRACT A new paradigm is afoot in banking regulation—and it involves a turn toward the more speculative. Previous regulatory instruments have included geographic restrictions, activity restrictions, disclosure mandates, capital requirements, and risk management oversight to ensure the safety of the banking system. This Article describes and contextualizes these regulatory tools and shows...
The Language of Mens Rea
Oct. 17, 2014—The Language of Mens Rea Appendix B: Full Text of Scenarios in the Revised MPC Definitions Experiment Appendix B: Full Text of Scenarios in the Signal Variant and Revised Recklessness Experiments ABSTRACT This Article empirically tests two key questions. First: How sensitive are jurors to variations in the language that delineates the criminal mental state...
Speech Beyond Borders: Extraterritoriality and the First Amendment
Oct. 17, 2014—Speech Beyond Borders: Extraterritoriality and the First Amendment ABSTRACT Does the First Amendment follow the flag? In Boumediene v. Bush, the Supreme Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad. Instead, the Court made the application of such rights, the First Amendment...
“Sticky” Arbitration Clauses? The Use of Arbitration Clauses After Concepcion and Amex
Jun. 14, 2014—Sticky Arbitration Clauses? We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their...
Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders
Jun. 14, 2014—Enjoining Abuse- The Case for Indefinite Domestic Violence Protection Orders While countless studies demonstrate the complex and dangerous nature of intimate partner abuse, most jurisdictions permit only the entry of yearlong domestic violence protection orders. Judges may assume that danger ceases once the order takes effect, but evidence of the recurrent nature of violence demonstrates...
In Defense of American Criminal Justice
Jun. 14, 2014—In Defense of American Criminal Justice
Prisoners and Habeas Privileges Under the Fourteenth Amendment
May. 16, 2014—Prisoners and Habeas Privileges Under the Fourteenth Amendment The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes. The strongest existing argument that state prisoners...
Enforcement Discretion and Executive Duty
May. 16, 2014—67 Vand. L. Rev. 671 – Price Recent Presidents have claimed wide-ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of abstaining from investigation and prosecution of certain federal marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of removal statutes against...