The Intention of the Settlor Under the Uniform Trust Code: Whose Property Is It, Anyway?

The Intention of the Settlor Under the Uniform Trust Code: Whose Property Is It, Anyway? The question of the extent to which the owner of property may transfer it gratuitously, subject to enforceable restrictions on alienability and use, has a long history. To protect the living from control by the dead, as well as the alienability of property, the law traditionally has refused to enforce some such restrictions. Opposing those interests, however, is the interest in respecting the freedom of the owner of property to dispose of it subject to whatever restrictions he or she chooses to impose. The Uniform Trust Code (“UTC”), promulgated in 2000, is the first comprehensive national codification of the law of trusts. As such, it provides an excellent opportunity to examine current thinking on how the balance should be struck between the property rights of trust settlors who wish to control the future enjoyment of their property by others, and the interests of trust beneficiaries whose enjoyment of the property is limited by settlor imposed restrictions. The purpose of this Article is to engage in that examination. Generally, the UTC provides default rules that apply only if and to the extent that the settlor does not provide otherwise in the instrument. The settlor’s ability to override the UTC’s rules, however, is expressly limited by mandatory rules, on fundamental subjects, that apply regardless of the settlor’s express intent to the contrary. Although the UTC’s mandatory rules will serve as an important focus of this Article, the issue of the extent to which the settlor’s intent will be respected under the UTC arises in a variety of other contexts that also will be analyzed. The tension between the property rights of settlors and the interests of beneficiaries exists with respect to many subjects addressed by the UTC, including (i) the modification and termination of trusts, (ii) the alienability of the beneficiary’s interest, (iii) the rights of beneficiaries to receive information about the trust, (iv) the ability of the beneficiaries to change the trustee, (v) the ability of the settlor to impose value limiting restrictions on the management and investment of trust assets, and (vi) the ability of the settlor to relieve the trustee from the duty to act in good faith and to exculpate the trustee from liability for breaching a fiduciary duty. UTC provisions with respect to the settlor’s ability to control property transferred in trust also involve the settlor’s ability to fix the trustee’s compensation or to waive or require a trustee’s bond; the requirements for creating a valid trust, including that its purposes not violate public policy; the ability of the beneficiaries and the trustee to act collectively in ways that circumvent the settlor’s intent; and the court’s overriding ability to act as necessary in the interests of justice. The Article will demonstrate that the UTC has taken modest steps towards accommodating the interests of beneficiaries when those interests will not be served by strict adherence to the settlor’s intent as set forth in the terms of the trust. In other respects, consistent with the common law, the UTC continues to honor the settlor’s intent. Finally, in some respects the UTC provides greater protection to the settlor’s intent than under common law

Valuing the User Experience in Human-Computer Interaction: the Respected User Manifesto

There is a no-man's land between how the Graphical User Interfaces are typically conceived, designed and engineered in desktop applications and mobile apps, and what users actually expect: it's where the users' experience, expectations, training, habits, mental attitude come into play. New software versions add features, change the GUI layout, behavior and environment for innovation and marketing reasons, but in doing so they often disregard the value of the user experience: all the user can do is accept the new situation and trying to adapt. To make things worse, customization options are usually limited when it comes to restoring the previous environment, and downgrading restrictions in software licenses also apply. Background services may also start at the worst time, monopolizing the system against the user's will, causing frustration and possibly more serious problems due to service unavailability. In short, there's a grey cross area in software design and deployment where the user is not fully respected as a person whose experience is intrinsically a value worth preserving. In this paper we analyze and discuss some common situations from different scenarios, and exploit them to extract some golden rules for a more respected software user - the Respected User Manifesto

Portfolio regulation of life insurance companies and pension funds

This paper examines the rationale, nature and financial consequences of two alternative approaches to portfolio regulations for the long-term institutional investor sectors life insurance and pension funds. These approaches are, respectively, prudent person rules and quantitative portfolio restrictions. The argument draws on the financial-economics of investment, the differing characteristics of institutions’ liabilities, and the overall case for regulation of financial institutions. Among the conclusions are: · regulation of life insurance and pensions need not be identical; · prudent person rules are superior to quantitative restrictions for pension funds except in certain specific circumstances (which may arise notably in emerging market economies), and; · although in general restrictions may be less damaging for life insurance than for pension funds, prudent person rules may nevertheless be desirable in certain cases also for this sector, particularly in competitive life sectors in advanced countries, and for pension contracts offered by life insurance companies. These results have implications inter alia for an appropriate strategy of liberalisation. 1 The author is Professor of Economics and Finance, Brunel University, Uxbridge, Middlesex UB3 4PH, United Kingdom (e-mail ‘[email protected]’, website: ‘www.geocities.com/e_philip_davis’). He is also a Visiting Fellow at the National Institute of Economic and Social Research, an Associate Member of the Financial Markets Group at LSE, Associate Fellow of the Royal Institute of International Affairs and Research Fellow of the Pensions Institute at Birkbeck College, London. Work on this topic was commissioned by the OECD. Earlier versions of this paper were presented at the XI ASSAL Conference on Insurance Regulation and Supervision in Latin America, Oaxaca, Mexico, 4-8 September 2000, and at the OECD Insurance Committee on 30 November 2000. The author thanks participants at the conference and A Laboul for helpful comments. Views expressed are those of the author and not necessarily those of the institutions to which he is affiliated, nor those of the OECD. This paper draws on Davis and Steil (2000)

Big Box Backlash: The Stealth Campaign at the World Trade Organization to Preempt Local Control Over Land Use

As communities across the United States and elsewhere are increasingly successful in their effort to limit "big box" store expansion and destructive retail practices through transparent and accountable measures at the local level, Wal-Mart and other retailers have pursued rules at the World Trade Organization (WTO) which threaten to preempt, or at the very least chill, these local laws. These rules are part of the General Agreement on Trade in Services (GATS). In 1994, the United States committed retail and wholesale distribution, as well as the hotel and restaurant sectors, to the terms of the GATS, one of 17 Uruguay Round agreements enforced by the Geneva-based World Trade Organization (WTO). The GATS expansive "market access" rules are geared toward facilitating the entry of foreign service providers into the U.S. market by incorporation or acquisition of U.S. firms. These GATS rules forbid limits on the number of services suppliers, as well as measures that would reduce the value of a service transaction or limit the number of employees. Policies containing economic needs tests, like that in the city of Los Angeles for very large retail operations, are explicitly forbidden. Unless the United States takes action to fix this problem in the current round of negotiations, local governments could see challenges to state and local land use laws brought before WTO tribunals, which are empowered to authorize trade sanctions against countries that refuse to conform their domestic policies to WTO dictates. Across the country, state and local officials are working to put laws in place to protect their communities, their environment, their wage base and tax dollars by putting land use limits on "big box" retailers, as well as retail chains and other development projects they deem destructive to the community or the environment or out of step with local needs and planning

Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy

Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used as a rule of decision. Second, if more than one state’s law might be used as a rule of decision, and those laws conflict, it must be decided which law is given priority. The draft defines “internal law” to include restrictions on the geographic scope of the law. However, there are two questions the draft does not answer clearly. First, is the definition of internal law meant to include only express restrictions on scope? Second, absent explicit indications of legislative intent, how is the scope of a law to be determined? In particular, should courts employ a presumption against the extraterritorial application of state law? This article begins by analyzing the role of the presumption against extraterritoriality in supplying implied restrictions on the scope of law. It considers the role of the presumption in both international and interstate conflicts of laws, and argues that the Restatement (Third) should differentiate clearly between those two contexts. It then turns to the question whether geographic scope restrictions should properly be considered part of a state’s internal law. The paper analyzes that question through the lens of a common problem: a contract dispute involving a transaction or event that falls outside the scope of the law chosen by the parties to govern their agreement. On the basis of that analysis, it concludes that forthcoming sections will need to address the implications of the draft’s categorical treatment of legislative scope

Evaluating implementation of the WHO set of recommendations on the marketing of foods and non-alcoholic beverages to children: Progress, challenges and guidance for next steps in the WHO European Region

This paper describes the status of the implementation of the WHO Set of Recommendations on the Marketing of Foods and Non-alcoholic Beverages to Children (2010). The Set of Recommendations, adopted by the World Health Assembly, urges Member States to reduce the impact on children of the marketing of energy-dense, highly processed foods and beverages that are high in saturated fats, trans fats, free sugars and/or salt (HFSS). A growing body of independent monitoring and research indicates that existing policies and regulations are markedly insufficient to address the continuing challenges in this field. This report identifies loopholes, ongoing challenges, and factors that Member States need to consider to effectively limit the harmful impact that HFSS food marketing has on children, their health and their rights. Policies and regulations tend to use narrow definitions and criteria (they frequently apply to pre-digital media only, to younger children and not to adolescents, and to “child-directed” media, rather than those with the greatest child audiences), and they almost never address the complex challenges of crossborder marketing. This situation can be explained, in part, by the strong scrutiny and opposition that countries have faced from parts of the private sector, and by weak self-regulatory schemes. As a result, and in order to ensure that States uphold their legal obligations to protect the child’s right to health and related rights, the World Health Assembly requested that WHO provides additional technical support to Member States in implementing the Set of Recommendations. This report identifies challenges States need to address