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Portability, Marital Wealth Transfers, and the Taxable Unit
Get PDFPrior to 2011, the most efficient estate tax planning for married couples required a minimal level of asset equalization. In order to take maximum advantage of all existing wealth transfer tax exemptions and credits, each spouse needed to own, in an estate tax sense, enough assets to be able to fully utilize the estate tax credit or applicable exemption. This changed with the enactment of estate tax portability in the Economic Growth and Economic Recovery and Relief Act of 2011, which became permanent under the American Taxpayer Relief Act of 2012. “Portability” refers to the ability of a surviving spouse to make full use of his or her predeceased spouse’s unused exemption from estate tax. In an era of portability, if the less-wealthy member of a married couple dies first, he or she no longer “wastes” that exemption. It simply “ports” — or carries over — to the survivor.
At first glance, portability appears to implicate theoretical concerns, as it functions as a modern-day coverture that “merges” spouses into one unit. Furthermore, portability discourages some lifetime transfers of property to the less-wealthy spouse, who is more likely to be female. On the other hand, portability simplifies tax planning and benefits both spouses in a marriage. Portability was envisioned as a congressional “kiss” to a loving couple who sees itself as a unit. Yet the tax benefit is available regardless of whether the couple does in fact function as an economic unit, raising tax policy questions about the appropriateness of using the married couple as the primary tax unit. On balance, however, portability is a salutary addition to the law of wealth transfer taxation that minimizes complexity in estate planning and likely reduces the use of certain QTIP trusts, which minimize the autonomy of the surviving spouse, typically the woman, because a QTIP trust allows the marital deduction for one spouse’s transfer of the underlying property to a third party and not to the other spouse
Rethinking the Childhood-Adult Divide: Meeting the Mental Health Needs of Emerging Adults
Get PDFPart I of this article describes ADHD and explores the extent of ADHD medication abuse, especially among young adults. Part II discusses the characteristics of emerging adults, who may be more likely than their older counterparts to make unwise decisions about medications and other life choices.34 While we protect minors by requiring parental consent for their medical treatments, emerging adults are effectively able to obtain any drug on the market if they convince the doctor that they have the requisite diagnosis. Part III explores HIPAA, the medical malpractice standard of care and the challenges associated with a society that is overly dependent on prescription drugs. It recommends that we work towards greater mental health parity, enabling those who need them, to affordably obtain mental health services. Part III also recommends that HIPAA be amended to provide for presumed consent for health care providers to share information, including at least an initial meeting, with parents of young emerging adults. It also suggests that mental health care providers\u27 failure to use best efforts to include parental contact in cases of young emerging adults violates the medical malpractice standard of care, especially in cases involving ADHD medications. Finally, this article advocates for an awareness campaign to address the challenges associated with the public health problem of prescription drug overuse and abuse
Copyright and Social Media: A Tale of Legislative Abdication
Get PDFThe focus of this article will be on what I call DMCA 2.0. It will begin by discussing the Digital Millennium Copyright Act (DMCA) and why that statute, passed in 1998 to shore up the enforceability of copyright online by protecting content providers’ ability to engage in forms of technological self-help against online copyright infringers, has been problematic. Part II describes largely unsuccessful efforts in the form of statutes and trade agreements to shore up the DMCA. Part III turns to the latest salvo, the adoption of “voluntary agreements” whereby content owners and ISPs, in particular social media platforms, join forces to stem infringement. The final section lays out the difficulties with the voluntary solution and suggests that legislators have abdicated their responsibility to maintain a fair balance between rights of social network users and commercial content providers
Social Media Thoughtcrimes
Get PDFAs people live out their lives online, what is protected expression and what is criminal speech? This article begins to explore this fine distinction, and advocates for a shift in the way online speech is protected vis-à-vis the First Amendment. Part I provides examples of criminalized social media activity and explores why people seemingly treat online speech as private communications. Part II looks at existing jurisprudence regarding the criminalization of speech and First Amendment protections. And Part III attempts to determine where to draw the line by advocating for a return to simpler times in First Amendment jurisprudence
Here We Are Now, Entertain Us: Defining the Line Between Personal and Professional Context on Social Media
Get PDFSocial media platforms such as Facebook, Twitter, and Instagram allow individuals and companies to connect directly and regularly with an audience of peers or with the public at large. These websites combine the audience-building platforms of mass media with the personal data and relationships of in-person social networks. Due to a combination of evolving user activity and frequent updates to functionality and user features, social media tools blur the line of whether a speaker is perceived as speaking to a specific and presumed private audience, a public expression of one’s own personal views, or a representative viewpoint of an entire institution. However, the intent of the speaker is frequently lost to the wide and diverse breadth of social media audiences or obscured due to the workings of the specific social media platform being used.
In this article, we ask the question: should the job of drawing the line between personal and professional speech lie with the individual? Should the divide be clearly determined by the functionality of the social media platform or by third party processes and procedures such as organizational social media policies or by state/federal law?
This issue of personal versus professional speech becomes increasingly relevant not only to public figures such as celebrities or athletes, but to anyone whose online or social media presence is directly or indirectly connected to a larger institution, such as a workplace or educational institution. As social media platforms and online culture encourage “transparency” and open sharing of personal details online, it is not always easy to determine when personal versus professional viewpoint is being represented via social media channels. When an individual shares a controversial opinion outside of work, it is not necessarily representative of their workplace, yet may be perceived as such. When does an employer have the right to monitor or dictate an individual’s online communications?
The line is difficult for everyone to walk – from the perspective of both employers and employees, considering that employees generally want to remain employed and employers generally want to minimize anything negative reflecting back on the employer. In this article, we discuss the tenuous balancing act between the interests of a brand/employer with those of the individual/employee regarding social media communications.
We illustrate this tension through the example of the regulation of student-athletes within institutions of higher education, considering they now might be considered to be employees. However, we conclude that the challenges in developing law and policy around social media speech are due to a number of issues, including the rapid pace of development of social media platforms. Social media gives greater access into the lives of individuals due to emerging social norms that encourage open sharing of personal information online. At the same time, social media tools are used by companies to promote a curated brand identity for marketing purposes. Social media policies created both internally by employers and those established by law and policymakers focus almost exclusively on the interests of companies regarding social media, rather than the individual interests of those who participate on social media to connect with peers.
We conclude that the present approach that federal financial regulators take regarding social media is the closest to a well-balanced test as presently available – in this test, whether an employer can take action against an employee is grounded on whether a statement could be seen as directed by or an official statement of the employer. A national standard following this overall approach would best balance the interests of both employers and employees
Abuse and Harassment Diminish Free Speech
Get PDFOwen Fiss focused on “the robustness of public debate” to conclude on his last page: “The autonomy protected by the First Amendment and rightly enjoyed by individuals and the press is not an end in itself, as it might be in some moral code, but is rather a means to further the democratic values underlying the Bill of Rights.”
This article embraces the same values but more conservatively. Whereas Fiss defended state-sponsored coercion, I leave the government mostly outside the descriptions and arguments presented here. Scholars have sought to apply the law—of crimes, torts, intellectual property, and statutory allotments and immunities—as remedies for online abuse and harassment. A few states have modified their penal codes in this direction. I applaud many of these innovations but do not rely on them. They can be rejected for purposes of the thesis that I sketch in these pages.
Like writings that come before it, this article challenges the chestnut that freedom comes at the expense of another progressive good. Equality, to some writers; antisubordination, to others; “civil rights” also serves. In contending that free speech advances and supports these progressive goals, I step into big footprints—not just those of Owen Fiss but before him, inter alia, Harry Kalven, who argued when the sixties revolution was young that white speakers ought to thank “the Negro” and his civil rights struggle for enlargement of their First Amendment rights delivered to them by the Supreme Court. But my connection to free speech is more literal than what these great precedent-writings teach. Abuse and harassment pull valuable words out of the marketplace of ideas, I argue. They lessen the discourse.
Also following in the path of other writings, this article notes a few higher stakes present in online speech as contrasted with its lower-tech antecedents. Electronic discourse adds anonymity, amplification, and permanence; within this medium, these conditions reinforce each other. Think of a rock thick and opaque enough to hide behind, durable enough to intimidate, heavy enough to inflict a real blow.
Don’t stop there. Think also of a rock’s majesty and beauty. Opacity, durability, and weight are strengths as well as dangers. In this article, I advocate measures against abuse and harassment because (not “even though”) I cherish free speech
Transportation, Cooperation and Harmonization: GATS as a Gateway to Integrating the UN Seaborne Cargo Regimes into the WTO
Get PDFThis paper seeks to analyze how the World Trade Organization (WTO) may cooperate with the United Nations (UN) to unify sea-borne cargo regimes. Beginning with the current dilemma of uni-form maritime transport regime, the paper explores the relation-ship between the UN and the WTO. In light of the successful precedent of the incorporation of the UN intellectual property re-gime into the WTO, this paper probes into the feasibility that the UN and the WTO may interactively unify a maritime transport regime by reference to selected previous treaties, which include UN-administrated treaties. This paper argues the WTO-based sea transport negotiations do not start from a zero basis so that it can be traced backwards to negotiating the General Agreement on Trade in Services (GATS). Having scrutinized the progress and regress in the negotiations so far under the WTO framework, this paper stresses the potential role of an annex on sea transport to the GATS so as to address the issue of harmonization
Is the Albert H Kritzer Database Telling Us More Than We Know?
Get PDFThis article is the first in a series of articles attempting to provide a geographical and temporal overview of the application practice of the United Nations Convention on Contracts for the International Sale of Goods (CISG). In this first article, the success of CISG is explored. The article develops the idea of using the Albert H. Kritzer Database to achieve an overview of the success of the Convention in practice. It is argued that the success of the Convention is useful to measure by its uniformity in practice, and therefore a set of criteria relating to the Convention’s application by domestic courts are developed. The article contains a cursory study according to which the success of the Convention in Germany and China is considered, and the feasibility of the proposed study is assessed. The article concludes that a geographical and temporal overview of the Convention’s application would add to current discussions of revising the Convention and provide the basis for considering alternative ways to promote uniformity. The proposed study concludes that the Albert H. Kritzer Database is capable of shedding a new light on topics like transparency of decisions, the courts’ protection of their home industries, and the use of the concept of good faith. The article exposes a number of limitations when it comes to generalising about the entire trading community and providing detailed overview of uniformity over time
A Dean for All Seasons
Get PDFThe average tenure of a law school dean in the United States is three years, in large part because the task is both eclectic and difficult. Michelle Simon, the longest tenured Dean at our law school, was able to surpass that average because she was a dean for all seasons: Leadership and care of faculty; attention to student concerns; financial acumen; curricular relevance; keeping the day-to-day operation of a multi-faceted institution on track; maintaining a close but arms-length relationship with the university; and managing external relations on all fronts
Pace Environmental Law Review 2015 Symposium: Reconceptualizing the Future of Environmental Law
Get PDFPace Environmental Law Review\u27s 2015 Symposium, entitled Reconceptualizing the Future of Environmental Law, can be traced back to over a year ago when a few Pace Environmental Law faculty members approached me and Katie Hatt, the Managing Editor of the law review, with an idea.1 No, not an idea, rather a question. They simply asked us, “what do you think the future holds for environmental law?” This question transformed into an extensive conversation about the past, the present, and the future of environmental law