Testamentary Freedom and Family Solidarity in the United States of America. An Analysis of the Uniform Probate Code and the State Regulations in Louisiana and California

The common law and the civil law tradition define a PPP (public-private partnership) contract differently. The continental EU member states have a legal tradition based on civil law, thus their law derives from a set of written rules or a civil code. Hence, the public law provides the legal framework within which PPP contracts must be negotiated, quite opposite to a private contact which is subject to the legal principle on freedom of contract. In the common law member states such as the United Kingdom, Ireland and Malta, the legal tradition is based on case law and precedents, and thus commercial transactions and competition. In these member states, the legal approach to a PPP contract is based upon the same legal tradition as private contracts. Legal negotiations and the resulting regulations within the EU are a compromise between the different legal systems and Brexit weakens the voice of common law in the EU. Regulating by legal statutes in general goes against the legal tradition in the UK. Brexit might tip the balance between civil law and common law in the EU and thus Brexit might pave the way for a legal framework on PPP in the EU. In addition, Ireland already has a national PPP legislation which is why a compromise between Ireland and the continental member states could be within reach.

Liberalism and Married Women’s Property Rights in Nineteenth-Century Latin America

This article discusses Revenue Procedure 2005-24, which came as a bombshell to the estate-planning bar. The Rev. Proc. requires a spousal waiver of elective-share rights in order for a charitable remainder annuity trust (CRAT) or a charitable remainder unitrust (CRUT) created on or after June 28, 2005, to qualify for a charitable deduction. The elective share is a statutory provision common to most probate codes in non-community-property states that protect a decedent's surviving spouse against disinheritance. The Rev. Proc. is primarily though apparently not exclusively addressed to the elective share of the Uniform Probate Code (UPC). Unfortunately, the Rev. Proc. applies applicable state law that is sometimes consistent with and sometimes significantly departs from the UPC elective share, without identifying which is which. Consequently, the Rev. Proc. may give the wrong impression that the UPC served as the model for the applicable state law throughout the discussion and examples. The source of the problem appears to be that the IRS misinterpreted the UPC elective share. The IRS's description of the UPC elective share overlooks an important feature of that law: Under UPC elective-share law, the settlor-decedent's surviving spouse has no claim on a premarital CRAT or CRUT - a CRAT or CRUT created when the settlor-decedent was unmarried or was married to a previous spouse. Consequently, no spousal waiver should be required of a later spouse if the UPC is the applicable state law. Yet, the Rev. Proc. repeatedly states that a waiver is required of a later spouse. The article concludes by pointing out that there is a larger question posed by the Rev. Proc., which is that if the IRS remains determined to insist on a spousal waiver for CRATs and CRUTs that might but probably won't turn out to be liable for a pro rata share of an electing surviving spouse, the result may be to weaken the elective-share protection for surviving spouses. The article urges the IRS to drop the requirement of a spousal waiver and work out some mechanism for retroactively denying the charitable deduction only in cases in which the surviving spouse actually claims his or her elective-share rights and the CRAT or CRUT becomes liable for satisfying a portion of those rights. This is in fact the IRS's position regarding CRATs and CRUTs created before June 28, 2005, and would seem to be all that is necessary to protect tax revenues.

<i>Cooley v. Board of Wardens</i> and its Nineteenth‐Century Legacy

Federal Preemption of State Regulation Over Air Ambulances

Sadeghi, Behnam. <i>The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition</i>. Cambridge: Cambridge University Press, 2013. 234 pp. $99.99 (cloth).

Intestacy statutes may not match the wishes of many people who die intestate. Changes to the Uniform Probate Code (UPC) include or exclude potential takers, as the drafters attempt to bring the UPC provisions closer to the intent of more intestate decedents. As the UPC tries to fine-tune the intestacy statutes, however, family circumstances continue to get more and more complicated. Families headed by unmarried couples, blended families with children from multiple marriages, and families in which adults raise children who are not legally theirs, have become commonplace. For some decedents, non-family friends and caregivers may be more important than legal relatives. Given the diversity of decedents' family structures and wishes with respect to their property, constructing an intestacy statute based on fixed rules has become ever more problematic. This Article examines the UPC's treatment of the family in the intestacy rules and looks at provisions from other state intestacy statutes. The Article analyzes the definitions of "spouse" and "child" and identifies problems created by the current definitions. The Article reviews some of the many proposals for intestacy reform, especially those that advocate a degree of judicial discretion. After discussing provisions in the UPC and a few state statutes that already permit judicial discretion, the Article proposes an intestacy statute that provides a relatively simple default rule for inheritance and permits judicial discretion, exercised within a framework of statutory guidance, to determine the proper distribution of an intestate's property.

Estate settlement through probate procedures satisfies no one. The public is hostile to the delay, expense, and lack of privacy that accompanies probate. Attorneys respond to public dissatisfaction by counseling probate avoidance. Legislatures facilitate some settlements by enacting simplified procedures for low-value estates. In large measure, the Uniform Probate Code (UPC) was a response to criticisms leveled at probate. Alternative settlement procedures are offered by the UPC, including informal testacy determinations and informal appointment procedures. These alternatives, however, remain imbedded in a judicial system, with it procedural rigidities. The UPC informal settlement alternatives did not silence the criticism. The continued dissatisfaction with probate continues to breed devices to avoid probate and shortcut options for small estates. To address the ongoing hostility, this Article advocates the UPC adopt an optional, non-judicial registration system for estate settlement. Patterned after small-estate statutes, a registration system establishes the decedent's testate or intestate status by registering the will or an affidavit of heirship, identifies a personal representative when one is needed, and permits completion of settlement as rapidly as the unique circumstances of each estate permit. A registration system is designed for the majority of estates, the ones that involve no controversy. Utilizing a registration system, the decedent's beneficiaries may collect assets, pay debts, and make distribution promptly, with reduced expense, and without the publicity that judicial proceedings entail. A registration system would be a continuation of the UPC's intent to offer estate settlement modes that are both acceptable to the public and responsive to the purposes of estate settlement.

The effect of Civil law doctrines of precedent on the process of formation and evolution of case law is examined. Unlike the Common law systems, Civil law jurisdictions do not adopt a stare decisis principle in adjudication. In deciding any given legal issue, precedents serve a persuasive role. Civil law courts are expected to take past decisions into account when there is a sufficient level of consistency in case law. Generally speaking, no single decision binds a court and no relevance is given to split jurisprudence. Once uniform case law develops, courts treat precedents as a source of soft law, taking them into account when reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive force of case law. Although Civil law jurisdictions do not allow dissenting judges to attach a dissent to a majority opinion, cases that do not conform to the dominant trend serve as a signal of dissent among the judiciary. These cases influence future decisions in varying ways in different legal traditions. Judges may also be influenced by recent jurisprudential trends and fads in case law. The evolution of case law under these doctrines of precedents is modeled, considering the possibility for consolidation, corrosion and stability of legal rules. The effect of different doctrines of precedent on the patterns of evolution of the legal system is studied.

Contractual and testamentary freedoms are the pillars of modern civil society and are manifested through the possibility of concluding a contract as inter vivos means of regular property exchange, or through testament as non-regular means of property disposition since its effect is attached to the testator’s death. The modern inheritance law is characterized by the trend of contractualization, thus some means of arranging post-mortal distribution of property (inheritance) appear in form of contractual disposition. Their introduction into some legal systems is under question, since they limit testamentary freedom, which is considered to be the consequence of the theory on absolute freedom of testation that is deeply rooted in some legal traditions. The aim of this research is to determine whether it is necessary to analyze freedom of testation and contractual freedom as opposite, or whether it is possible to observe them as complementary in some segments. For that purpose, the author manages to identify the points of approximation and distinction between these two freedoms, through their comparison. Furthermore, this problem is considered from the perspective of inheritance law, which is specifically discussed from the point of view of the legal effects of the inheritance agreement over testamentary disposition.

The article is devoted to the problem of adaptation of the linguistic personality of an intellectual migrant in a multicultural society. The authors proceed from the assumption that the diversity of adaptation strategies ultimately has two extreme poles: cultural isolation or total assimilation. The question is whether ‘the golden mean’ strategy is possible in a multicultural society, which will neutralize and smooth out the extremes of isolation and assimilation? Turning to the historical experience of multicultural society in the United States of America, the authors of the article actualize the cultural experience of the Siberian-Kazakh writer George D. Grebenstchikoff (1883-1964), who immigrated to the United States in the first half of the 20th century. Based on the analysis of his works written in America, the article examines the writer's personal experience and determines its relevance for solving the problem of choosing an adaptation strategy in a modern multicultural society. To this end, the authors reconstructed and systematized the writer's views on the problem of cultural adaptation. It is concluded that the adaptation experience of George D. Grebenstchikoff carries a lot of useful, instructive and relevant for the 21st century. The successful adaptation of the writer in the United States in the 1920-1950s is a model of the adaptation strategy, that is, the optimal balance between cultural assimilation and cultural isolation, and can serve as a positive example for successful adaptation in a multicultural society.

Global invasive species introductions are rising, necessitating coordinated regulatory strategies within and across national borders. Although states and nations address their unique priorities using plant regulations, these regulations are most likely to reduce invasive plant introduction and spread if they are consistently enacted across political borders and proactively restrict spread early in the invasion process. Further, a unified regulatory landscape is particularly important given the imminent range infilling and large‐scale climate‐driven range shifts of invasive species. In the United States, federal and state regulations restrict the introduction and spread of several hundred invasive and noxious plant taxa in an effort to reduce their negative impacts. Using plant regulations for the lower 48 United States, we assessed consistency among regulated taxa based on similarities in adjacent states’ regulatory lists. We assessed proactivity by comparing regulatory lists to plants’ current and potential distributions given occurrence records and species distribution models under climate change. States regulate from 0 to 162 plant taxa, with an average of only 16.8% overlap of regulated taxa between adjacent states. Up to 137 plants may be present but unregulated in a state, and only 110 of 553 listed taxa were regulated in one or more states where they were not yet present. However, 36 states listed at least one taxon proactively (regulated but not present in the state). Of the 48 proactively listed taxa with species distribution models, we identified 41 cases (38 species in 21 states) where listing was ‘climate proactive’ (regulated, not present and where climate could be suitable for establishment by mid‐century). Policy implications. US plant regulatory lists were inconsistent across borders and reactive to climate change. However, most states regulate at least one plant taxa prior to its introduction, suggesting that a more proactive approach is possible under existing regulations. Coordination across borders is imperative given gaps in regional defences against invasion and projected invasive plant range shifts under climate change. We suggest that subnational, national and international governing bodies evaluate their plant regulatory lists for consistency and proactivity, as it is paramount for preventing the next wave of plant invasions.

Judicial precedents in civil law systems: A dynamic analysis

Canada's legal culture is a mixed legal culture, encompassing both the common law tradition inherited from England, and the civil law tradition, which connects Canada to its roots in Continental Europe. This mixed legal culture has come to be known as bijuralism. Inevitably, the presence of two legal cultures or traditions on Canadian soil means that they often come into contact with one another; the interaction of concepts, values and practices expressed in each of those legal traditions results in a true conversation of cultures. I will suggest that broader insight can be drawn from the conversation of Canada's legal cultures, insight that may be helpful in other contexts in which a plurality of cultures or systems of values and norms interact in a sustained manner, within a single space. I begin by explaining how Canada came to encompass both the civil and common law traditions and how Canada's federal system affects the conversation between these legal cultures. I will then consider the three possible modes of interaction that are possible where legal traditions, cultures, religions, or any other set of norms and values coexist, wrestle or clash in the same space: denial of plurality, which leads to the silencing of the minority tradition; acknowledgement of plurality, which requires one to create a space for each tradition; and embracing plurality, which treats the conversation of cultures less as a challenge than as a gift. I will examine how patterns reflecting each of these modes of interaction have repeated themselves, concluding that despite the unquestionable challenges posed by plurality, there is hope for a fruitful embrace of competing visions which must surely yield better self-knowledge and peaceful coexistence. Canada's Experience of Bijuralism The Roots of Bijuralism in Canada The common and civil law traditions can be distinguished generally on the basis of a few defining characteristics. Historically, the civil law tradition arose in Continental Europe, and traces its origins back to a revival of Roman law that took place between the twelfth and sixteenth centuries. It is characterised by a faith in written law, often manifest in the presence of a Civil Code, in which ordinary rules relating to family, property, contracts and wrongdoings, successions and other such topics - the rules of private law - are expressed in general language, arranged systematically. It is a legal tradition that accords primacy to the sovereign in the act of stating the law (Watkin 1999). As a result, judges in civil law countries typically deny that they are making law when they decide cases. By way of contrast, the common law tradition finds its roots in Great Britain in the eleventh century (Belanger-Hardy and Grenon 1997). It underlies the legal systems of the United Kingdom and the United States, as well as Commonwealth countries around the world. It is characterised by the special authority given to concepts and principles developed over time by judges deciding particular cases and, as a result, by the emphasis on unwritten law and incremental conceptions of the quest for justice (Glenn 2004). While problems in the two legal traditions often reach very similar solutions, one can see from this brief sketch that they operate under very different assumptions about, among other things, the role of legislatures, the role of judges, and the optimal mode of expression of legal norms. Civil law and common law are different legal cultures in that sense. They are two different languages which communicate differently within the law. How is it, then, that Canada came to house these two Western legal cultures? The early history of Canada, as is well known, is a mixture of settlement and conquest. In a land occupied by our First Nations, portions of Canada were settled by British subjects, who were presumed to have brought the common law tradition with them (Hogg 2002). However, what is now referred to as Central Canada was originally settled by the French, who established the civil law Custom of Paris as the principal set of legal norms in New France (Dickinson 2001). …

Digital evidence in child-related crime investigations presents unique challenges for legal systems worldwide, particularly as such crimes increasingly transcend national borders. The intangible, volatile, and jurisdictionally complex nature of digital evidence raises fundamental questions about how different legal frameworks address collection, preservation, and admissibility in these sensitive cases. Objectives. This study aims to identify and analyze key differences in legal frameworks governing digital evidence in child-related crime investigations across the European Union, United States, and United Kingdom, with specific focus on authority requirements, procedural standards, and cross-border evidence exchange mechanisms. Methods. Through comparative legal analysis of primary legal texts, case law, and secondary literature, this research examines the procedural requirements, technical standards, and jurisdictional approaches to digital evidence across the selected jurisdictions. Research Findings. The analysis reveals distinct regulatory models: the EU employs a structured judicial oversight model through instruments like the European Investigation Order and the emerging e-evidence package; the US CLOUD Act facilitates direct public-private cooperation through streamlined court orders and bilateral agreements; and the UK relies on Criminal Procedure Rules and traditional Mutual Legal Assistance Treaty processes with emphasis on maintaining strict chain of custody. Significant variations exist in authority requirements, technical standards for evidence authentication, and mechanisms for cross-jurisdictional cooperation. These jurisdictional differences create practical challenges for cross-border investigations, particularly concerning cloud-stored data and child sexual abuse material. The study proposes a harmonized approach that balances investigative efficiency with privacy protections and addresses the unique vulnerabilities of child victims, while respecting different legal traditions.