- Extended look at problems of the adult guardianship program in New York [John Leland, New York Times, earlier]
- “‘Professional Speech’: a Distinction without a Difference” after the NIFLA case [Cato podcast with Caleb Brown and Robert McNamara of Institute for Justice]
- New York enacts law imposing stiff new tax on opioid makers and wholesalers while forbidding them to recoup it by raising prices for buyers in other states. That won’t fly under the Dormant Commerce Clause, rules federal judge [Nate Raymond, Reuters/Insurance Journal]
- Should courts uphold laws grounded in part on hostility to a religious group, though rationalized on some other basis? Both right and left have trouble staying consistent [Ilya Somin]
- “Oxford University Gets Opposition To Its Attempt To Trademark ‘Oxford’ For All The Things” [Timothy Geigner, TechDirt]
- Australian corrections officials keep bringing the wrong Peter Brown to court as murder defendant [Lowering the Bar]
- Event barns booming as wedding venues, but some owners of traditional banquet halls want them to be subject to heavier regulation, as by requiring use of licensed bartenders [Stephanie Morse, Milwaukee Journal-Sentinel]
- Protectionism and smuggling in ancien regime France: “Before Drug Prohibition, There Was the War on Calico” [Virginia Postrel]
- Thread unpacks “Big Ag bad, family farms good” platitudes [Sarah Taber]
- “An Oklahoma judge has agreed to resign after he was accused of using his contempt powers to jail people for infractions such as leaving sunflower seeds in his courtroom and talking in court” [ABA Journal]
- Update: North Carolina gerrymandering plaintiffs back off, concede impracticality of using new maps in time for upcoming election [Robert Barnes, Washington Post, earlier]
- “Aretha Franklin Died Without a Will, Bequeathing Estate Issues To Her Heirs” [Caron/TaxProf]
More, this time from Michigan, on how guardianship in the wrong hands can turn into a “completely legal, utterly grotesque system for undermining the rights of the elderly,” cutting out kids and legitimate heirs. Last fall the New Yorker ran a chilling investigative piece by Rachel Aviv exposing guardianship abuses in Nevada. [Gretchen Rachel Hammond, Tablet; coverage last October of the Rachel Aziz piece]
As of 2014, Donald E. Miller, Jr. was still alive according to the federal government, except in the state of Ohio, where he was legally dead. [Dan Lewis, Now I Know]
“That weekend, she called her parents several times. She also called two hospitals to see if they had been in an accident. She called their landlord, too, and he agreed to visit the house. He reported that there were no signs of them. She told her husband, ‘I think someone kidnapped my parents.'”
Of all the scams and outrages in the legal system that I’ve written about, few get me as angry as does guardianship abuse. Rachel Aviv’s New Yorker report from Nevada shines a light into some dark places of elder law and of the human heart. Earlier here and here (2009 Brooklyn), here (Connecticut), here (North Carolina), here, etc. (Bronx).
- “Unintended Consequences of Military Lending Act Hurt Some Families” [R.J. Lehmann]
- Tenth Circuit: Fed must provide all depository institutiona access to the clearing system, whether they serve marijuana businesses or any other kind [George Selgin, Cato]
- “Moneylending has been taboo for most of human history. So how did usury stop being a sin and become respectable finance?” [Alex Mayyasi, Aeon]
- Financial regulation: too many cooks in the compliance kitchen [Cato Daily Podcast with Thaya Brook Knight and Caleb Brown] “DOL Fiduciary Rule: It’s Not Always Fun to be Right” [Knight]
- “2016 was an unprecedented year in securities class actions filings.” [Baker Hostetler, JD Supra]
- Trusts and the offshore wealth trade: from Edmund Burke to the Cayman Islands [Graham McAleer, Law and Liberty]
- “Heir hunters” chase missing relatives entitled to inherit unclaimed fortunes, for a share of the recovery. Some relatives might not even be relatives [James Fanelli, New York Daily News first, second stories]
- Put up a statue of Clarence Darrow for the Scopes case? OK, but then take it back down for the L.A. Times case [Mark Pulliam, Law and Liberty]
- Lawyer who founded Prenda Law is disbarred [Joe Mullin, ArsTechnica]
- “Escaping the ICWA Penalty Box: In Defense of Equal Protection for Indian Children” [Timothy Sandefur, Children’s Legal Rights Journal]
- “Russian bank owners sue BuzzFeed over Trump dossier publication” [Josh Gerstein, Politico]
- On OMB regulatory management, Trump administration is headed in its own new direction [Andrew Grossman]
- Do behavioral economists acknowledge policymakers’ own foibles? Not often it seems [Niclas Berggren via Bryan Caplan]
- China, not unlike our own attorney general-environmentalist alliance, is cracking down on the work of what it deems ideologically harmful nonprofits [ABA Journal]
- Barking mad: new ABA ethics proposal would deem it professional misconduct for lawyers to discriminate on various grounds, including “socioeconomic status,” in choosing partners, employees and experts [Eugene Volokh, Sara Randazzo/WSJ Law Blog]
- Virginia still has a law requiring annual safety inspection of your car, and it’s still a bad idea [Alex Tabarrok]
- Court in Canadian province of New Brunswick rules against honoring will that left estate to racist group [CBC]
- From the left, Paul Bland sees Monday’s Supreme Court decision in Spokeo v. Robins as a big loss for business defendants [Public Justice, earlier] Contra: Andrew Pincus, plus more from WLF.
For many readers it will be behind a WSJ paywall, but try to catch up with the alarming account by Arian Campo-Flores and Ashby Jones of chronic problems in the system of legal guardians for adults, still “plagued by allegations of financial exploitation and abuse, despite waves of overhaul efforts. As a result, critics say, many elderly people with significant assets become ensnared in a system that seems mainly to succeed at generating billings.” One Florida woman had taken what might seem to be the appropriate precautions — assigning to one of her sons power of attorney and signing advance directives designating him as her guardian — but wound up with a court-appointed guardian anyway and before long was hundreds of thousands of dollars poorer.
…in France, there are almost no will contests brought on the grounds of a lack of capacity, fraud, or undue influence. In the United States, on the other hand, 3% and 5% of all wills executed will be contested, most commonly, on undue influence grounds. Why the difference?
Two elements of French law — mandatory shares for children and the role of specialized officers known as notaires who assist in document preparation — would be hard to duplicate here. Another institutional step that might reduce the incidence of costly probate struggles, however, would be to adopt (as three states have) what is known as antemortem probate, a right of testators to go to court during their lifetime seeking to have their testaments validated against challenge. “The proceeding allows judicial evaluation of the testator’s capacity, intent, and freedom from undue influence or fraud during the testator’s lifetime, which has the obvious benefit of the presence of the testator at the proceedings.”
It seems, however, that the antemortem probate procedure is seldom used in the American states where it is available. (Nor are official registries of wills, another aspect of the French system Ryznar describes as “easily adoptable” here and indeed in effect in some states.) Is the process going unused mostly because of unfamiliarity, or because persons whose estates will end up being contested on grounds of undue influence do not commonly recognize that? Or are there other reasons the procedure might be unpopular, such as an unwillingness to offend family members who are getting less than they might like?