Vanderbilt Law Review
- Vanderbilt Law Review
- Publication date:
- First document:
- Vol. 57 Nbr. 3, April 2004
- Last document:
- Vol. 67 Nbr. 6, November 2014
- COPYRIGHT TV Trade Media, Inc.<br/>COPYRIGHT GALE, Cengage Learning. All rights reserved.
- Vol. 67 Nbr. 6, November 2014
- Vol. 67 Nbr. 5, October 2014
- Vol. 67 Nbr. 2, March 2014
- Vol. 67 Nbr. 1, January 2014
- Vol. 66 Nbr. 6, November 2013
- Vol. 66 Nbr. 5, October 2013
- Vol. 66 Nbr. 4, May 2013
- Vol. 66 Nbr. 3, April 2013
- Vol. 66 Nbr. 2, March 2013
- Vol. 65 Nbr. 1, January 2012
- Vol. 63 Nbr. 6, November 2010
- Vol. 63 Nbr. 3, April 2010
- Vol. 63 Nbr. 1, January 2010
- Vol. 62 Nbr. 6, November 2009
- Vol. 62 Nbr. 5, October 2009
- Vol. 62 Nbr. 4, May 2009
- Vol. 62 Nbr. 3, April 2009
- Vol. 62 Nbr. 2, March 2009
- Vol. 62 Nbr. 1, January 2009
- Vol. 61 Nbr. 6, November 2008
- In Search of the Probate Exception
In this Article, the authors go . After concluding that some familiar arguments do not persuasively justify a gap in federal judicial power, they consider Article III's case-or-controversy requirement. Understood as requiring live disputes between adverse parties, the case-or-controversy requirement might appear to rule out much of the unconstested ex parte or administrative work commonly conducted in the course of probate proceedings. Yet the federal courts have a long tradition of hearing administrative matters, from the naturalization petitions that arrived on federal dockets in 1790 to the bankruptcy proceedings that unfold each day in the Article III judiciary. Even today, Article III courts entertain applications for FISA warrants on an ex parte b...
- Symposium: The Role of Federal Law in Private Wealth Transfer: Introduction
- Federalization of the Law of Charity
To this day, the law of charity is often thought of as a matter for the states. In fact, the crucial law relating to charity is now almost always federal. For certain purposes, state law still determines whether a given entity is "charitable." It also determines the propriety of a charitable fiduciary's conduct when someone who has standing sues. But federal law determines whether an entity qualifies for various tax incentives, such as exemption from the federal income tax and eligibility to receive tax-deductible gifts, and qualification for these incentives generally determines whether the entity comes into existence and, if so, whether it survives. Federal law also wields a bewildering array of draconian penalties against both charities and their fiduciaries for failure to comply wit...
- Is Federalization of Charity Law All Bad? What States Can Learn From the Internal Revenue Code
This Comment will focus on state and federal law's approaches to two key issues. The first concerns the non-distribution constraint -- the charity's promise that charitable assets will be directed entirely towards accomplishing the charity's mission and not distributed to insiders. The author will compare the state-law duty of loyalty to the Code's excess benefit transaction regime, and show that the Code and accompanying regulations do a better job of preventing self-dealing and conflict-of-interest transactions that are not in the charity's best interests. The second issue concerns state and federal law limitations on political activity. Although state courts have long agreed that a purely political organization has no "charitable purpose," they have been ineffective at describing exa...
- The Creeping Federalization of Wealth-Transfer Law
This Article 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 on the part of federal authorities have not dissuaded them from undermining well-considered state law. The Article covers these topics: federal preemption of several areas of state law, the development of federal common law as a sometime substitute for preempted state law, the federal ta...
- Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down On Egelhoff
In Egelhoff v. Egelhoff, the Supreme Court held that when the instrument of transfer is a beneficiary designation in a pension plan or life insurance policy subject to federal regulation under the Employee Retirement Income Security Act (ERISA), the otherwise applicable state divorce revocation statute is preempted, even though ERISA makes no mention of divorce revocation. In a 2013 decision, Hillman v. Maretta, involving an insurance policy purchased under a program for federal employees, the Supreme Court extended preemption to forbid such post-distribution relief. In this Article, the author points to serious shortcomings in the reasoning and policy merits of Egelhoff and Hillman. There is no federal policy favoring wealth transfer to ex-spouses. The divorce revocation statutes exemp...
- Probate Law Meets the Digital Age
This Article explores the impact of federal law on a state fiduciary's management of digital assets. It focuses on the lessons from the Stored Communications Act ("SCA"), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment's privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account. While existing trusts and estates laws could legitimately be interpreted to encompass the new technologies, and while the laws applicable to these new technologies could be interpreted to account for ...
- The Stored Communications Act and Digital Assets
As Naomi Cahn explains in her outstanding contribution to the Vanderbilt Law Review's Symposium on the Role of Federal Law in Private Wealth Transfer, ISPs are concerned about a byzantine federal statute from 1986: the Stored Communications Act (SCA). Noting that the SCA predates the rise of email, Cahn argues that the statute should not govern fiduciaries. Alternatively, assuming that the SCA does apply in the trusts and estates context, Cahn discusses various ways around this obstacle, including the Uniform Law Commission's draft Fiduciary Access to Digital Assets Act (FADA), which would clarify that fiduciaries generally enjoy the "authorization"' and "lawful consent" necessary to acquire a decedent's online accounts. This short invited reply takes a different route to the same desti...
- A Fresh Look at State Asset Protection Trust Statutes
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 adoption and use of these statutes. After summarizing the legal background out of which these two trends arise, I analyze the characteristics of the states that have chosen to adopt them to date and conclude that the size of a state is less predictive of adoption than broader social and economic characteristics of the populace. This Article closes with a discussion of why the use of the statutes is growing. In general, the limited litigation, coupled with apparently increasing enactments and usage,...
- Unconstitutional Perpetual Trusts
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 art across history. We consider the constitutionality of perpetual trust statutes in states that have a constitutional ban on perpetuities and whether courts in states with such a ban may give effect to a perpetual trust settled in another state. Because text, purpose, and history all suggest that the constitutional perpetuities bans were meant to proscribe entails, whether in form or in function, and because a perpetual trust is in purpose and...
- The Fraud-On-the-Market Tort
It is commonplace to observe that there are differences between private 10b-5 actions and common-law actions for deceit, notwithstanding that both travel under the name of "fraud." It is equally commonplace to suppose that these differences primarily reflect the need to adapt law that was ...
- Duty in the Litigation-Investment Agreement: The Choice Between Tort and Contract Norms When the Deal Breaks Down
Part of the genius of the common law inheres in its ability to assimilate a new type of activity into existing categories. In the case of litigation investment (also known as third-party litigation finance, litigation funding, or alternative litigation financing), several alternative common-law...
- The Fourth Amendment's National Security Exception: Its History and Limits
To clarify the constitutional parameters of national security investigations, this article examines the Fourth Amendment's historical influence in security affairs. Claims about historical practice pervade debates over modern surveillance programs, including those about the Bush Administration's...
- The Supercharged Ipo
A new innovation on the IPO landscape has emerged in the last two decades, allowing owner-founders to extract billions of dollars from newly public companies. These IPOs-labeled supercharged IPOs-have been the subject of widespread debate and controversy: lawyers, financial experts, journalists,...
- The Chilling Effect and the Problem of Private Action
Chilling effect doctrine creates an exception: it expands the category of constitutionally cognizable injuries to encompass claims of deterrence, whether that deterrence results from governmental or private actions, from legal or illegal retaliation. This article argues that chilling effect...
- Against Settlement of (Some) Patent Cases*
For decades now, there has been a pronounced trend in civil litigation away from adjudication and toward settlement. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss' seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather ...
- My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad
The US targets and kills US citizens, but debate rages over the targeted killing program's legality. This note argues the US government can conduct extrajudicial targeted killings of US citizens legally by adhering to international law and domestic due process protections. Part I introduces...
- Copyright Freeconomics
To effectively and efficiently incentivize the creation and distribution of original works in the era of "content abundance," US copyright law will need to account for the new and altered incentives that are now being faced by content-market participants. Part II of this article begins...
- Designing Administrative Law for Adaptive Management
Administrative law needs to adapt to adaptive management. Adaptive management is a structured decisionmaking method, the core of which is a multistep, iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the...
- States, Agencies, and Legitimacy
Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as "administrative federalism," now seeks to...