A Tribute to Justice Scalia

“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring.” Antonin Scalia 1936-2016

from The Federalist Society.

Fraudulent Transfers or Voidable Transactions?

Here is a nice analysis of fraudulent transfer law by Jay Adkisson in light of the Uniform Voidable Transactions Act of 2014 (formerly the Uniform Fraudulent Transfer Act).

“The Uniform Voidable Transactions Act – What’s With The Name Change?”

(This article is the first in a series on the Uniform Voidable Transactions Act of 2014 (“UVTA”) , as found at  http://goo.gl/kS7MqZ  [PDF] and adopted by the Uniform Law Commission on July 16, 2014. [Jay Adkisson] was an American Bar Association Advisor to the Drafting Committee to this Act.)

Our modern law of fraudulent transfers can be traced to Roman Law. When the Byzantine Emperor Justinian I commanded that great compilation or Roman Law known as the Corpus Juris Civilis, or more commonly the Civil Code, the accompanying commentary known as the Institutes of Justinian gave a very detailed treatment of fraudulent transfer law which in substance is little changed from when those Institutes were published in the year 533 A.D.

In the Institutes, we are given the basic concept of a fraudulent transfer as a transfer by a debtor that is meant to defeat the creditors of the debtor. The standard remedy was that the transfer could be avoided by the creditor; that is, treated as if the transfer had never occurred at all, and the transferred asset was still owned by the creditor. However, if the creditor could not be satisfied by unwinding the transaction, then the creditor may obtain a money judgment against the transferee for the value of the asset that was transferred. If the transferee did not know the debtor had outstanding creditors, and the transferee paid equivalent value for the asset, then the transferee had a valid defense against the creditor’s action for the fraudulent transfer.

These are the basic concepts of Roman fraudulent transfer law, and are the basic concepts of American fraudulent transfer law as well. In fact, the Romans considered these issues in far more depth than I have just briefly described, such as in holding that if a debtor refused to accept an inheritance so that those assets would not go to his creditors (what we could today call a “disclaimer”), that was not a fraudulent transfer, as is now stated in the probate laws of most states.

It is widely presumed that the American law of fraudulent transfers derives in whole from English law, more particularly the Fraudulent Conveyances Act of 1571, sometimes referred to as the Statute of 13 Elizabeth. There is some truth to that, but only in part.

Continue reading  . . . 

New IRS Rule for 2014

By – Gerry W. Beyer

 

“Effective January 1, the IRS requires those assigned an Employer Identification Number (EIN) to provide periodic updated information.

EINs are the equivalent of a Social Security number for taxpayers other than individuals, such as corporations, LLCs, trusts, and government agencies.  The new rule requires these entities to update information related to “responsible parties” and changes in business addresses.  If an entity has a change in the identity of its responsible party, the updated information must be filed with the IRS within 60 days using the Form 8822-B.  Changes before January 1 must be reported to the IRS no later than March 1.

See Stephen Sherman, What You Should Know About a New IRS Rule for 2014, Stoll Kennon Ogden LLP, Jan. 24, 2014.”

Nelson Mandela: Greatest Negotiator

By Susan Hackley

Nelson Mandela was “the greatest negotiator of the twentieth century,” wrote Harvard Law School professor and Program on Negotiation Chair Robert H. Mnookin in his seminal book, Bargaining with the Devil, When to Negotiate, When to Fight. In his chapter on Mandela, Mnookin cites Mandela’s patience, tenacity, pragmatism, and strategic thinking.

“He rejected the simple-minded notion that one must either negotiate with the Devil or forcibly resist. He did both. He was willing to make concessions, but not about what was most important to him. With respect to his key political principles, he was unmovable.”

Mnookin admired Mandela’s ability to persuade his adversaries.

“He ultimately achieved through negotiation an outcome that could never have been accomplished solely through violence or resistance. “

(From the Program on Negotiation Daily Blog.)

Mandela – A Titan Remembered

By Art Hinshaw

“With the death of Nelson Mandela, without doubt the most significant political leader in my lifetime, lots has been written about his impact not only on South Africa but also on the world. And plenty is still to be written. Mandela’s impact comes in many ways large and small, but more importantly it still resonates today. One of my most rewarding experiences in my life has been meeting members of the Truth and Reconciliation Commission. And of course, without Mandela the TRC would not have existed. Mandela is/was a true titan.

Earlier today FOI Charlie Craver (George Washington) sent out an email on the ADR listserv describing his work as a mediator in South Africa while the terms of both the Interim Constitution and the fall 1994 elections were being negotiated. I asked him if he would take the time to discuss his experience further and here’s what he’s sent along.

——————

South Africa was a most unusual country. A small group of wealthy white persons completely dehumanized millions of individuals solely because of their race. When I met with white leaders, it was as if they had no idea how blacks were living. I had a discussion with two Conservative Members of Parliament who emphasized the fact their families had gone back 350 years in South Africa. When I politely suggested that black South Africans had gone back somewhat further, I could tell from the looks on their faces that they had never even considered this fact. Our subsequent discussions became much more productive after this exchange.

The worst day of my professional life was when I spent a day in Soweto. The conditions in many areas of that Township were unconscionable. Many homes had no sewage, no electricity, and minimal water. A huge percentage of residents were unemployed and without monetary support. When I had lunch, I could hardly eat. Although the food was lovely, I could not eat in an area surrounded by so many persons who were treated in such a subhuman manner.

South Africa was able to finally achieve true democracy because of an extraordinary man named Mandela. He spent twenty-seven years of his life in cruel prison cells fighting for the freedom of all South Africans. Although the government tried on several occasions to talk him into accepting something less than true democracy in exchange for his freedom, he made it clear that he would never accept such terms. He and Gandhi were two of the most exceptional leaders of the past century. I only wish that they could have lived on forever to the benefit of all citizens of the entire world.”

(From the ADR Prof Blog.)

Not Bargaining With Syria

From Jack Goldsmith of LAWFARE:

United States Senators Joe Manchin (D-W.Va.) and Heidi Heitkamp (D-N.D.) are working on an alternative Syria resolution that provides:

If the Government of Syria does not sign the [Chemical Weapons] Convention within 45 [days] after the date of the enactment of this resolution, all elements of national power will be considered by the United States government.

In other words, our President has told Syria that the Unities States is going to bomb them because they used chemical weapons to kill civilians. And now our Senate is proposing to tell Syria that the United States will bomb them unless they sign a promise not to use chemical weapons.

Whatever these threats by our elected representatives are, they are not bargaining, and they fall far below the quality of service that we are entitled to expect from our leaders.

Continue reading about the Manchin/Heitcamp Syria Proposal and the Vienna Convention on Treaties.

SCOTUS rules in favor of property owners

PLF statement on Koontz v. St. Johns River Water Management District victory:

Sacramento, CA; June 25, 2013: The U.S. Supreme Court today handed a victory to all property owners by ruling in favor of Pacific Legal Foundation’s client, Coy Koontz Jr., in his constitutional challenge to the heavy, unjustified demands that his family faced as a condition for a building permit.

Continue reading . . .

PLF sues Solana Beach over unlawful coastal policies

By: Pacific Legal Foundation

“PLF attorneys just filed a lawsuit against the City of Solana Beach (San Diego County) over land-use regulations that threaten the right of landowners to protect, use, and enjoy their properties. PLF’s suit is on behalf of the Beach & Bluff Conservancy–a nonprofit organization that represents the interests of the City’s coastal landowners.”

Continue reading . . .

California Cities and Counties Can “Just Say No” to Medical Marijuana

California Cities and Counties Can “Just Say No” to Medical Marijuana Dispensaries

By Alan Murphy

“The California Supreme Court has unanimously upheld a local ban on medical marijuana dispensaries, holding the ban was not preempted by state statutes governing medical marijuana.

The decision does not come as a surprise, given that state court of appeal decisions consistently have upheld local land use regulation of dispensaries.”

Continue reading . . . 

New California Energy Use Disclosure Rules Effective July 1, 2013

California Commercial Building Owners Must Comply With New Energy Use Disclosure Rules
Commencing July 1, 2013

By Pamela Westhoff and Lydia Lake

“What you need to know:

The long-awaited energy use disclosure requirements, first enacted as AB 1103 (Saldana) in 2007 (codified as California Public Resources Code, §25402.10), are finally effective. Commencing July 1, 2013, owners of commercial, non-residential buildings in excess of 50,000 square feet will be required to track and disclose detailed information regarding energy consumption at each building. The reporting requirements will be extended to buildings in excess of 10,000 square feet commencing on January 1, 2014; and to buildings in excess of 5,000 square feet on July 1, 2014.”

Continue reading . . .