Considering Alternatives: Are There Methods Other Than the Estate and Gift Tax That Could Better Address Problems Associated with Wealth Concentration?

This Commentary analyzes three articles generated from the Symposium “The Centennial of the Estate and Gift Tax: Perspectives and Recommendations,” held on October 2, 2015 at Boston College Law School. This Commentary explores the underlying purpose of the estate and gift tax: eliminating wealth inequality. It then considers the three articles’ proposed alternative tax systems—namely an accession tax and a wealth tax—that could more adequately address the problem of wealth concentration, and evaluates the merits of each

What Leona Helmsley Can Teach Us about the Charitable Deduction

Leona Helmsley named a number of beneficiaries under her will (both human and canine), but among the unnamed beneficiaries are scholars interested in studying the role of philanthropy in the United States. By directing that an estimated $8 billion be used for the benefit of dogs, Mrs. Helmsley brought in to high relief policy issues regarding the appropriateness of the unlimited charitable deduction. I argue that these concerns are equally applicable, albeit less obvious, when it comes to more traditional charitable bequests. In this paper I will discuss the appropriateness of the unlimited estate tax deduction (particularly in light of the broad definition of what constitutes charitable) and the issues raised by perpetual private foundations

A Tale of Two Countries: Comparing the Law of Inheritance in Two Seemingly Opposite Systems

Although at first glance French and U.S. inheritance laws appear to be diametrically opposed, this paper provides a deeper analysis. In doing so, it explains that nuances within both systems have made the laws more similar than they initially appear. U.S. inheritance laws, explicitly characterized by freedom of testation, include numerous substantive limits on how a testator may dispose of her property at death. Courts often use doctrines such as mental capacity, undue influence, and fraud to void wills that do not provide for the decedent’s children. Also, because over one half of all Americans die intestate, or without a will, children are provided for in this way as well. French inheritance laws, which on their face appear to require everyone to leave at least half of their property to their children, similarly allow for significant deviation from this rule. Some techniques, such as life insurance, tontines, and usufruct interests have been around for a while. Since 2006, however, the law has given French parents even greater ability to control the distribution of their estates. This paper examines French and U.S. inheritance law, with an eye towards these initial differences, and deeper similarities

Autonomy and End-of-Life Decision Making: Reflections of a Lawyer and a Daughter

This Essay reflects upon accommodating needs of patients and family members facing end-of-life issues both from a legal perspective-as a lawyer and teacher of those lawyers who advise people about how best to express their wishes for their end of life care-and from the perspective of a family member, who has lived the experience of facing end of life decisions of a loved one. Most importantly, the reflections focus on the vast gulf that exists between these two perspectives

The Role of Judicial Discretion in Dispute Settlement

We consider two common modes of judicial resolution: judicial discretion, where the judge or jury has broad discretion in fashioning a remedy, and winner take all where the remedy is pre-determined by the governing substantive law. We analyze these systems in light of the fact that pre-trial bargainers have been shown to have excessive confidence in their own positions. We find theoretically that winner-take-all rules magnify the effects of over-confidence and diminish the likelihood of settling relative to judicial discretion. We confirm our model with a laboratory experiment showing significantly fewer pre-trial agreements under winner-take-all. These results imply that increasing judicial discretion in fashioning remedies could increase pre-trial agreements and promote efficiency. This has implications for many areas of law, including donative transfers, property law, patent infringements, and agreements on liquidated damages

Letter to Orrin G. Hatch on Donor-Advised Funds

Letter advising Orrin G. Hatch, Chairman of the United States Senate Committee on Finance, to consider reforms in the treatment of donor-advised funds under the tax code