Dead Hands and Trusts

The centuries-old common law Rule Against Perpetuities (RAP) is alive and well in the 21st century as seen in a recent case in Michigan which settled the disposition of the estate of lumber baron Wellington Burt, once one of the eight wealthiest Americans. Burt died 92 years ago in 1919. Saginaw County Chief Probate Judge Patrick McGraw called the case "one of the most complicated research projects" in his 12 years on the bench. After hours of research and years of patience, heirs of the lumber baron, ranging from 19 to 94 years old, will finally share in the trust with a reported value of $100 million to $110 million. The youngest of the 12 heirs is 19 year old, great-granddaughter Christina Cameron of Lexington, KY who is set to receive $2.6 million to $2.9 million. For more on the case, see the ABA Journal article here or an article about the life of the lumber baron who caused this legal saga here.

The rule, which goes back to the Duke of Norfolk's Case, 22 Eng. Rep. 931 (1682), guards against excessive dead-hand control of property (usually land) transfers. Its most familiar formulation is found in The Rule Against Perpetuities by John Chipman Gray (Call # KF613 .G739 1942): No interest in land is valid unless it must vest, if at all, within 21 years of the end of some life in being at the time of the transfer. In the case of the late Wellington Burt, the bulk of his estate will now be distributed 21 years after the death of his last surviving grandchild, the last survivor among Burt's grandchildren born in his lifetime. She died November 21, 1989.

New York codified the RAP in Section 9-1.1 of the Estates Powers and Trusts Law. Section 9-1.1(a) provides that no interest in real property is valid if the instrument conveying the interest suspends the absolute power of alienation for longer than lives in being plus 21 years. This year, the New York Court of Appeals decision in Bleecker St. Tenants Corp. v Bleeker Jones LLC, 16 N.Y.3d 272 (2011) discussed the rule. New Jersey, in contrast, abolished the common law when the passage of the Trust Modernization Act of 1999 (N.J.S.A. 46:2F-9 et seq.).

A CALI podcast on the RAP is available here for students who want to refresh their understanding of the rule for the bar exam. The Brooklyn Law School Library has on Reserve at the circulation desk Estates in Land & Future Interests: A Step by Step Guide by Linda Holdeman Edwards (Call # KF577 .E39 2009) with chapters titled: Infamous rule against perpetuities -- Applying the rule against perpetuities -- Relief from the rule against perpetuities. Another BLS Library book on the topic is Dead Hands: A Social History of Wills, Trusts, and Inheritance Law by Lawrence Friedman (Call #KF753 .F75 2009) which has a chapter Control by the Dead and Its Limits: the Rise and Fall of the Rule against Perpetuities.

LibTour on CALI

The Center for Computer-Assisted Legal Instruction (CALI), which helps law schools students use technology to learn about the law, has developed LibTour, a series of electronic law library tours using QR codes a new technology explained below. The series includes legal research sources like USCA/USCS, West’s Digests, Corpus Juris Secundum, AmJur, CFR, ALR, and Uniform Laws Annotated. Brooklyn Law School Library intern Sara Kasai wrote the LibTour on Federal Digests, which you can download here. The transcript is available here. With the help of a free barcode-reading app (like Google Goggles), any law student can use QR codes to access CALI audio files for useful information on the specific resource and its use in legal research.

QR Codes, which are beginning to appear on billboards, flyers, and subway ads throughout the city, are barcode-looking symbols that can be scanned by a barcode reader on a smartphone. They link to multiple kinds of data, including URL links, addresses, and text. QR Codes (standing for Quick Response) became popular in Japan after Toyota developed them as a new way to ID their cars. They are useful as a general marketing tool as well as for law firm marketing. Law firms are now putting QR codes on the back of lawyer business cards to enable prospective clients, with smart phone app, to read a lawyer's biography on a web page. They can help drive traffic to law firm websites, promote events such as seminars, sponsored programs or association conferences. They can also be used to announce new products (such as scholarly publications or white papers), new services (such as new practice areas), or class action law suits. With a class action, a firm can quickly provide valuable information to prospective class members – especially when dealing with consumer issues. See ABA Journal article Biz Cards Go Digital: Firm Adds QR Codes to Business Cards and QR Codes: How Law Firms Can Use Them Effectively.

Judicial Recusal and Prejudice

Two recent high profile cases involve the subject of judicial recusal. The first is the request by Common Cause that the Justice Department investigate whether US Supreme Court Justices Antonin Scalia and Clarence Thomas should have recused themselves from participating in Citizen’s United v. FEC because they attended conferences organized by interest groups who benefited from the ruling. The second is the motion by proponents of California’s Proposition 8 to overturn now retired Chief U.S. District Judge Vaughn R. Walker’s decision last August declaring Proposition 8 to be an unconstitutional violation of gay Californians' civil rights based on a possible personal benefit to him from his ruling because of his own sexual orientation. Linda Greenhouse's NY Times piece Recuse Me states that recusal motions are becoming the latest weapon in the litigator’s arsenal, in effect a substitute for legal argument. As Greenhouse states, the standard for judicial recusal is in Section of 28 USC §455(a) which provides that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The Brooklyn Law School Library has in its International Collection Judicial Recusal: Principles, Process and Problems by Grant Hammond (Call # K2146 .H364 2009). Chapters, some of which relate to federal recusal law in the US, include: The essential questions -- The evolution of the present law in the common law world -- The classification of the present day recusal principles in the British Commonwealth -- Automatic disqualification in the British Commonwealth -- Apparent bias in the British Commonwealth -- Federal recusal law in the United States of America -- The importance of process -- Prudence : if in doubt, out? -- Practical rules and protocols -- Disclosure -- Waiver -- Necessity -- Appellate review of lower court decisions -- Recusal procedure in appellate courts -- Judicial misconduct in court : judges who go too far -- Prior viewpoints -- Unconscious bias -- Possible reforms -- Judges or legislators?

Another resource at the BLS Library is Judicial Disqualification of Judges: Recusal and Disqualification of Judges by Richard E. Flamm (Call # KF8861 .F53 2007), a comprehensive 1,185-page guide to the case law, statutory law and court rules which govern motions to recuse and disqualify judges in every American jurisdiction and an exhaustive source of precedents, analysis and procedural guidance with every legal basis for judicial disqualification, from the common law and constitutional provisions to state and federal statutes and court rules.

2011 Tri-State Commencement Speakers

An article in the National Law Journal reports that the University of Nebraska College of Law and the University of New Mexico School of Law have US Supreme Court Justice Clarence Thomas and Justice Elena Kagan, respectively, as commencement speakers this year.The speakers announced to date for tri-state area law schools are:

New York

•Albany Law School – NYS Bar Association President Stephen P. Younger
•Brooklyn Law School – Judge of the International Court of Justice (ICJ) Thomas Buergenthal
•Cardozo School of Law – NY Attorney General Eric Schneiderman
•Columbia University School of Law – US Department of Treasury general counsel George Madison
•Cornell University Law School – Former New York City Mayor Rudolph Giuliani
•Fordham University School of Law – NBC Nightly News anchor Brian Williams
•Hofstra Law School – NY Attorney General Eric Schneiderman
•New York Law School –Newark Mayor Cory Booker
•NYU School of Law – Former President William J. Clinton
•Pace University School of Law – NY State Chief Judge New York Jonathan Lippman
•St. John’s University School of Law – US Circuit Judge Guido Calabresi
•Syracuse University – Delaware Attorney General Joseph R. "Beau" Biden III
•University at Buffalo Law School – US Senator Kirsten E. Gillibrand

New Jersey

•Rutgers University School of Law (Newark) – Professor Elizabeth Warren
•Rutgers University School of Law (Camden) – Author Scott Turow

Connecticut

•Quinnipiac University School of Law - Connecticut Supreme Court Justice Flemming L. Norcott, Jr.
•University of Connecticut School of Law – Connecticut Attorney General George C. Jepsen

Episode 065 – Conversation with Prof. Lawrence Solan

Episode 065 – Conversation with Prof. Lawrence Solan.mp3

In this podcast, Brooklyn Law School Professor Lawrence Solan talks about his recent book The Language of Statutes: Laws and Their Interpretation (2010) which is on reserve as part of the BLS Library collection. The book is a balanced view of statutory interpretation and the role of the courts. It examines the jurisprudential and practical aspects of language scholarship for statutory interpretation. In the interview, Prof. Solan relates his own personal experience with the ambiguous interpretation of a statute as well as his own scholarly study of the federal bribery statute and its extensive appellate review. The book joins law, linguistics, and cognitive science to show that statutory interpretation is not in need of a major overhaul as some have suggested. He argues that when cases on the margin occur that the legislature did not foresee, judges must inevitably undertake statutory interpretation. The Language of Statutes follows Prof. Solan's earlier work The Language of Judges and an extensive list of publications which are listed here.

Financial Speculation Tax

A proposal for a “financial speculation tax” or a “financial transaction tax” (FTT) has generated support as a way to address large deficits in the US budget. The idea, which places a small tax on all financial transactions, has its roots in the Tobin Tax named for the late James Tobin who suggested it to raise money to help eradicate global poverty. Instead of raising taxes on ordinary income earners or imposing cuts in social services, the FTT looks to the financial sector to pay for the damage it caused to the economy when Wall Street speculators and large banks invested in high risk mortgage backed securities leading to the crash of 2008 and the loss of 8 million jobs. After taxpayers bailed them out, there are reports of record profits. With unemployment at record highs and states in enormous fiscal distress, budget cuts alone are inadequate to address the shortfall in tax revenue.

The People’s Budget which the Congressional Progressive Caucus recently introduced has as part of its corporate tax reform a derivatives and speculation tax. For such a proposal to work, the unanimous support of all G20 states is needed. The likelihood of enactment of an FTT in the US is low. A Bloomberg report from 2009 has Treasury Secretary Geithner and the Obama administration opposing it as unworkable since participants would find ways to circumvent the expense and almost all Republican members of the 112th Congress have signed a pledge to vote against all new taxes.

In January of this year, the Center for Economic and Policy Research (CEPR) issued a report called The Deficit-Reducing Potential of a Financial Speculation Tax showing that a 0.25% tax on trades of stocks, options, futures and other financial instruments could generate $40 billion a year for the Treasury. The idea gained support from French President Nicolas Sarkozy who said a financial transaction tax is one of his top priorities as leader of the Group of 20 nations this year. Earlier this month, an article in the Guardian reported that a thousand economists from 53 countries urged the G20 finance ministers meeting in Washington, to adopt a "Robin Hood tax" or Tobin tax on transactions in financial markets as "an idea that has come of age" arguing that even if such a tax was levied at just 0.05%, it could raise hundreds of billions of dollars, which could be ploughed into development projects. This is the launch video for the Robin Hood Tax campaign.



The International Monetary Fund (IMF) issued a Working Paper called Taxing Financial Transactions: Issues and Evidence in March 2011. Dean Baker, co-director at CEPR and author of its report, concluded:

This is not just a hypothetical; the revenue collected by the U.K. on its more narrow tax on stock trades shows that it is possible to collect large amounts of money through such taxes. Furthermore, the incidence would be almost entirely on the financial industry and those involved in very active trading.

The potential revenue from such a tax far exceeds the amount of money involved in most items that are heavily debated in Congress, such as the extension of unemployment benefits or the tax breaks going to the
wealthiest two percent of the population. The revenue from an FST also vastly exceeds the size of the projected Social Security shortfall. Given the amount of money potentially at stake and the progressivity of the tax, it is surprising that it does not feature more prominently in policy debates. It is not clear what possible downsides would be posed by such a tax, except for its negative impact on the income of people connected with the financial industry.

Copyright 2.0

Among the titles in the latest New Book List of the Brooklyn Law School Library is Infringement Nation: Copyright 2.0 and You (Call #KF2994 .T44 2011) by John Tehranian, a book written 300 years after enactment the first copyright act, the Statute of Anne also called “An Act for the Encouragement of Learning”. Tracing the history of copyright law and examining its impact on the lives of ordinary individuals in the twenty-first century, the book assesses the impact of copyright law on ordinary members of society and uses its five chapters on different copyright-related contexts – the individual as an infringer of copyrighted works, as a transformer of copyrighted works, as a pure user of copyrighted works, as a creator of copyrighted works and as a reformer of copyright law – to chart the changing contours of our copyright regime and weigh its vitality in the digital age.

Drawing on his own experiences as an attorney representing prominent Hollywood, publishing, new media and technology clients in high-profile copyright, trademark, patent, right of publicity, defamation and First Amendment litigation, the author questions some of our most basic assumptions about copyright law by highlighting the shocking amount of infringement liability that an average person commits in a single day. The 188 page book is based on Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 Utah L. Rev. 537 (2007), a short 14 page article that traces the liability that a hypothetical law professor named "John" unwittingly incurs over the course of a single day engaging in ordinary behavior like singing and taking photographs that constitute copyright infringement. The imaginary professor is shown to be liable for up to $12.45 million in civil damages, as well as criminal charges, even without the use of file-sharing networks. Copyright law now affects us all as America has become a nation of copyright infringers where the average citizen violates copyright law on a daily basis. Advances in technology not only provide ordinary individuals with access to their own home printing press in their computers but also allow copyright holders to detect and enforce acts of infringement.

Both the article and the book show that there is a gap between copyright law and copyright norms. The author argues for a reexamination of our current copyright regime that threatens to make criminals of us all. His proposed copyright reforms fall into three broad categories. The first is the restoration of balance between users and creators by a series of reforms such as penalizing rightsholders who make false representations to effect the takedown of allegedly infringing content online; providing defendants with the ability to recover attorney fees; and providing defense mitigation mechanisms for innocent infringement. The second is a repeal of the registration requirement under Sec. 412 of the Copyright Act for recovery of attorney fees to help unsophisticated creators enforce their rights fully along with a cap on the amount of statutory damages with a realistic multiplier of actual damages to reduce the in terrorem effect of modern copyright litigation. The most radical proposal is the adoption of an intermediate liability proposal to encourage transformative activity, advance freedom of speech, and promote artistic innovation. Infringement Nation makes a compelling case for reforming existing doctrine and the development of a copyright 2.0 and would make an excellent addition to the reading list of any course on copyright law as it will help students understand the fundamentals of intellectual property.