Monthly Archive for September, 2010Page 2 of 5

Should Animals Be Able to Sue BP (Or Anyone)?

There has been a small but gradually-growing chorus of animal rights advocates and legal professionals arguing that animals should have some, or all, of the legal rights afforded to humans.

This isn’t just the domain of PETA anymore, either. Many pet owners are shocked to learn that they can’t sue for wrongful death when someone else’s negligence (airlines seem to be the most well-known offenders) cause the death of their pets. Many are shocked and appalled when they find out that, typically, they’re only entitled to the animal’s market value, since animals are legally treated as property in almost every legal system in the world. Wrongful death lawsuits, however, are only available for the death, caused by the wrongful conduct of another, of a close human relative, such as a spouse, domestic partner, parent, or child.

The basis for the wrongful death cause of action is compensation for the extreme emotional and personal loss when a loved one dies, as well as an attempt to compensate for the economic loss. The loss of a pet, regardless of how devastating it might be to the owner, simply isn’t treated the same way.

There has been a move in some states to treat pets as “special property” – which is a label that some legal systems give to unique, irreplaceable pieces of property, the loss of which might transcend its market value. Family heirlooms are sometimes given this label, meaning that if someone negligently or intentionally destroys it, they might have to compensate the owner for more than the market value of the object. When most people mourn the loss of a pet the “replacement cost” of obtaining a similar animal isn’t what they’re thinking about.

Almost all laws that specifically protect animals either stem from the property rights of the animal’s owner, or, in the case of laws against animal cruelty and neglect, they stem from the idea that such conduct, which boils down to pointless sadism, is debasing to human society as a whole. The idea that the individual animals involved have rights rarely enters the equation.

Now that the immediate crisis of the BP oil spill is over, the focus is likely to focus on the legal consequences for those responsible. Several organizations that focus on animal law are filing lawsuits against BP on behalf of the thousands of animals that were killed, injured, and sickened as a result of the oil spill. While harm to animals can sometimes create legal causes of action, such as loss of property, intentional infliction of emotional distress, and certain claims under various environmental laws, it’s almost unheard of to file a lawsuit on behalf of the animals themselves.

So, should this become a regular trend? Your answer to this question largely depends on you view of the nature of legal rights. For example, if you view rights purely as a legal construct, which the law can create or eliminate at will, you probably don’t see anything inherently wrong with extending legal rights to animals, if it would advance a policy goal which you favor.

However, many other people view rights as moral principles, which exist regardless of what the law says, and that it’s the law’s job to protect rights, rather than create them. Among those who subscribe to this idea, there are innumerable opinions as to where these rights come from, whether they come from religious principles, or stem from human nature. Your opinion on this issue will also color your position on the question of animal rights.

I’m not going to get into evaluating the validity of these different positions. There are plenty of blogs and articles about jurisprudence out there, where you could read about this to your heart’s content.

However, if we do decide (on whatever basis) that animals are entitled to all, or even some, of the rights afforded to humans, on the same basis as we afford those rights to humans, some obvious practical problems come up.

First of all, with rights come responsibilities. Humans are generally viewed as having an inalienable right to live. The existence of that right comes with the responsibility to not deprive another person of their life. What if we decide that both lions and gazelles have an inalienable right to life? We’re either going to have to ignore the rights of the gazelles, or we’ll have to throw a lot of lions into animal prison. And would living under such a system mean living in a world where eating a hamburger is a capital offense? I think I’ll pass.

In all seriousness, however, many recent studies have shown that almost all animals, from chimpanzees down to goldfish, are far smarter than we once assumed. We’ve learned fairly recently that crows can not only use tools, but make them, as well. They’ve been seen doing this in the wild (and passing the knowledge on to other individuals) as well as in captivity, using materials that they would never encounter in the wild. This demonstrates highly advanced cognitive and problem-solving abilities which were, not long ago, thought to be the exclusive domain of humans.

Some animals are clearly not as different from us as we once believed, and would perhaps like to believe. How will this affect their treatment under the law? Well, as fascinating as these discoveries are, they don’t eliminate the huge practical issues that come up if we treat animals as if they have rights. Besides the fact that no animals, no matter how smart they are, seem to demonstrate that they have a concept of rights, we would have to decide just how far to take the premise of “animal rights.” Would it simply mean that animals have a right to not be treated with unnecessary cruelty? We already have laws against animal cruelty, and whether they stem from animal rights or not, they’re fairly effective. If they go further, we’d be looking at a fundamental change in human society.

Concerns Linger over Temporary Maintenance Guidelines in New York’s No-Fault Divorce Law

We recently posted about New York’s latest no-fault divorce law, which would allow couples to obtain a divorce without having to claim one of the traditional grounds for divorce.  Needless to say, the law will bring about major changes for the state of New York.  In that article we mentioned how the law is beset by many challenges regarding calculating maintenance or spousal support.

The maintenance provisions in question are contained in the bill A.10984/S.8390.  The intended purpose of the bill is to provide guidelines for courts when awarding temporary maintenance.  Temporary maintenance is spousal support which is paid for a certain defined period of time.  At the end of the specified time, the maintenance ends automatically.

Temporary maintenance is also called “durational” or “periodic” maintenance.  There are several other types of maintenance awards, including permanent maintenance and  rehabilitative maintenance.  The bill only addresses temporary maintenance and does not really make any changes to final awards for permanent maintenance.  In the state of New York the duration of the temporary maintenance will be determined by the length of the marriage.

Now, the main dispute over New York’s maintenance bills has to do with a clause that would allow a judge to consider “additional factors” when calculating temporary maintenance requirements.  Some of these factors may include the type of lifestyle that each spouse leads, various comforts that the couple was accustomed to prior to divorce, and each spouse’s employment status.

The bill does include a complex equation which will help to calculate the amount of temporary maintenance.  However, the “additional factors” clause seems to run counter to any amount of stable prediction that the equation might provide.  Many critics feel that the clause creates a marsh of open-ended inquiries that judges might have difficulty navigating.

As mentioned in our previous post, a commission has been appointed to research maintenance standards in the state of New York.  Still no word of an official report yet.

Like any other legal rule involving numbers and calculation, the temporary maintenance formula itself is needlessly complicated.  For those of you who are interested, the equation is as follows:

  • Temporary Maintenance is only awarded when the income of the “less-monied” spouse is less than two thirds of the spouse with the higher income.
  • The court will then award temporary maintenance in the amount of:
    • 30% of the paying spouse’s income, minus 20% of the recipient’s income, OR
    • 40% of the spouses’ combined income, minus the total income of the recipient spouse
  • The amount may be adjusted in instances where the paying spouse has an income greater than $500,000

So if the paying spouse has an annual income of $90,000 a year, then a temporary maintenance award is only available if the non-monied spouse is less than $60,000 (less than two thirds).  After that the court will continue the calculation to render an appropriate award amount.

Or, if you’re like me (allergic to numbers), you can simply punch and crunch the numbers using an online New York temporary maintenance calculator to see what a possible outcome might look like.  So let’s say that the spouses have incomes of $90,000 and $59,000.  Using the calculator, the result is a spousal award of $600/year.

Sounds simple enough right?  That is, until the court decides that the calculated award is “unjust” or “unfair”.  In that case they will have to go back and use the additional statutory factors to come up with a new figure and/or duration for the temporary maintenance.

That folks is where the problem lies.

To me, this is basically like saying, ok, we will provide you with a map and some directions to your destination.  If you don’t like the route, simply toss it out the window and find your way around till you get there.  If you get lost, here’s a list of roadside factors for you to consider.

So on the one hand, this new bill does at least provide a somewhat workable road map for judges to determine maintenance.  At least there’s a calculation involved.  However, the fact is that many judges still remain reluctant to use the additional factors.  This means that, although the no-fault law makes divorce somewhat easy, all those small little details are still just as complicated.  Hopefully for New Yorkers, these confusions are just temporary.

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What to Do When a Trustee Mismanages Trust Assets

Whenever money is involved, problems are bound to arise. Add to the mix that in trust law, the legal owner of property (the trustee) is different from the person whom the property is actually intended for (the beneficiary). So it’s not surprising that there are often conflicts between the beneficiaries and trustees of a trust.

One of the most common complaints is made by beneficiaries who feel that trustees are not property managing the assets in the trust. What to do if you find yourself in this situation?

Well, first of all, let’s further examine some reasons why this might happen. One thing to keep in mind is that serving as a trustee of a trust is a time-consuming and often-times, difficult job. Thus, the trustee might simply be doing a sloppy job or may not be the most well-qualified person to handle these assets in the trust. Another common scenario is the fact that the trustee might have a vested interest in the assets as well.

Take this (common) scenario: often times, the person who originally owned the assets and created the trust (the grantor) will leave the assets to the beneficiary, but only up to a point. For example, the beneficiary may only be allowed access to the trust assets on an as-needed basis, and perhaps only for the beneficiary’s lifetime. Once the beneficiary passes away though, the trust assets may go to someone else, possibly someone in the trustee’s family. If this is the case, then you can see why the trustee would be stingy in withholding money from the beneficiary. After all, the more assets that remain in the trust upon the beneficiary’s death, the more there is left for the next beneficiary of the trust.

The point is, there are many reasons why a trustee and beneficiary may not see eye-to-eye on how to manage the trust assets. The good news for beneficiaries is that there are a number of safeguards in place to make sure that trustees are doing their job properly.

First of all, the trustee owes the beneficiary fiduciary duties of due care and loyalty. This simply means that the law recognizes that the trustee has a special relationship to the beneficiary, and imposes a heightened sense of responsibility that the trustee owes to the beneficiary. By law, the trustee must act a reasonable person would and must act in the best interest of the beneficiary.

This next point will vary slightly among states, but generally the trustee also has a duty to invest the trust assets in order to have the trust produce reasonable income. States will vary in terms of what it means to reasonably invest trust property. For example, some states require that the trustee simply invest the trust assets in any type of “safe” investment, such as government bonds. Other states require that the trustee invest the money as a reasonably prudent person would. Still other states require that the trust portfolio as a whole must be invested in a prudent manner, which allows the trustee to diversify the investments.

Additionally, trustees must keep beneficiaries fully informed about what is going on with the trust. They are obligated to provide beneficiaries periodic accountings of the trust income and expenses. If the trustee does not provide this accounting, beneficiaries may go to court and order the trustee to produce the necessary documents.

So these are some of the safeguards and leveraging points you have in your arsenal if you find yourself as a beneficiary who has been slighted by the trustee. I also want to point out that in these situations, emotions are often running high and the first instinct may be to file a lawsuit. But suing can be an intense and laborious process, so I would like to offer some other possibilities for effectively dealing with these situations:

1. It may help to simply (and politely) ask the trustee to step down. In fact, the trust document often times provides for this very situation. The trust creator usually names, in the trust document, alternative and/or successor trustees in case the current trustee no longer performs.

Additionally, the trustee may even welcome this opportunity to step down. As I mentioned earlier, acting as a trustee is a lot of work. For large estates, acting as a trustee can even be a full-time job. Furthermore, acting as a trustee is not a position that most trustees even asked to do, but rather, were requested to do so by the grantor. And in return for all their hard work, the trustee is often not paid anything at all, or just some small monetary compensation as stated in the trust document. Therefore, all it could take would be to just ask the trustee to step down and let someone else do the hard work.

2. If that doesn’t work, then you may want to try private negotiations with the trustee to reach common ground on how you both think the trust assets should be managed. In fact, this may not be as terrible as most beneficiaries imagine it to be. For one thing, the trustee probably had a close relationship to the trust grantor, the very person who is leaving you his or her assets. Thus, as a beneficiary, you probably already have something huge in common with the trustee: some kind of close, personal or familial, relationship with the trust grantor.

Additionally, it may help to keep in mind that there was a reason the trust grantor chose this specific person to act as trustee. The grantor must have trusted and imparted this enormous responsibility to the trustee for a reason, and whether those reasons are well founded or not, you may want to at least consider them.

I understand that due to the nature of money and close relationships mixing together, tensions can run high in these situations. But there are many legal safeguards in place that protect you as the beneficiary. Additionally, you may have more in common with the trustee than you think, and in the end, preserving all the personal relationships involved may be worth more than the money itself.

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Posthumous Birth Laws, In Vitro Fertilization, and other Legal Quandaries

Some of the trickiest areas of law deal with a subject that is by nature nebulous and fuzzy – the measurement of human life.  When does it end?  When does it begin?  And how can laws be crafted around these boundaries, which are different for every person?  Sometimes the law attempts to force these grey areas into arbitrary categories.  Most of the time though, the laws simply don’t make sense.

Take, for example, an area of law that is recently receiving a lot of attention- posthumous birth laws.  Posthumous birth is when a child is born after the death of a parent, usually the father.  A person born in such circumstances is called a “posthumous child” or a “posthumously born person”.  The laws covering posthumous birth tend to focus on issues like property inheritance and the child’s legal status.  The question is usually: are posthumous children entitled to receive distributions from the father’s estate?

Now, laws covering this issue are already difficult to navigate.  Each state’s posthumous birth laws vary widely, and there seems to be no golden standard to refer to.  The issue gets further compounded by advances in reproductive technology, namely, in vitro fertilization.

We are presently seeing more and more children being conceived through in vitro fertilization.  But what happens when the father passes away before the child is even conceived?  This situation was not previously a legal issue before the advent of in vitro fertilization technology, and courts are struggling to reach a consensus on the issue.

State laws do generally agree that if the father dies during his wife’s pregnancy, the child is entitled to receive benefits such as federal funding and inheritance rights from the father.  However, if the father dies before conception, the child will not be entitled to benefits.

But does this make any sense at all?  Is a donor not a father?  It appears that the law has difficulty defining when the parent-child relationship actually begins.  To give courts some credit though, we are dealing with new technological frontiers and uncharted territory.  Courts faced similar difficulties with the phenomenon of abortion- cases involving abortion are notorious for arguing over the intricacies of when human life begins.

What perplexes me most is this: while the law is having difficulties dealing with real-live situations, there are several areas of law that use hypothetical, impossible situations as actual legal standards.  These quandaries are known as “legal fictions”, and they are abundant particularly in instances dealing with human deaths and births, and of course, property distribution.

To illustrate, here are some of the more commonly known (and ridiculed) legal fictions:

  • The Fertile Octogenarian:  The law assumes that women can bear children even into their golden years, such as 80+ years old.  This law applies in situations involving the property of transfer under the perpetually-hated rule against perpetuities.  (A fertile 80-year old may actually become a possibility given the momentum of reproductive advancements.  Is it desirable though?  That’s another question.)
  • The Unborn Widow:  This fiction says that a man can marry a woman who has not even been born yet.  This idea applies to transfers of property that are conditioned upon the death of the man’s wife.  Such transfers are invalidated because of the possibility of the man marrying the unborn widow.
  • The Precocious Toddler:  This one states that some persons might be fertile at birth or early stages of life.  (I foresee a future debate over Prop. 8,043,932: marriage between the Precocious ones and the Fertiles).

What is the world coming to?  Or rather, what is the law turning the world into?  In my opinion, laws do not need to imagine every conceivable situation and should instead focus on the ones that are actually happening.

So, back to a possible solution for the posthumous birth issue.  Ok, maybe not a solution, but as a suggestion, perhaps the legal implications need to be worked out more thoroughly before the technology is birthed, so to speak.  The legal implications of any new reproductive technology should be anticipated during the technology’s “conception” stages.  The legal process has always struggled to keep pace with technology.  And something needs to be done about that.

In other words, perhaps we need to see more interaction between researchers and legal experts.  This is especially true when dealing with issues like reproduction and parenthood, and, (altogether now), property distribution.  Or better yet, maybe we need more people who are trained in both scientific research and legal issues.  Sounds rough, but it is possible.  After all, the internet is making people smarter, right?

Will Virtual Visitation Become the New Child Custody Norm?

For most of us, the internet has been seeping into the cracks of our personal lives for quite some time now.  But not all of us anticipated just how far reaching such technology could be.  To illustrate, a growing legal trend now grants non-custodial parents visitation rights with their children over the internet through webcam video conferencing.

This is called “virtual visitation”, also known as “e-visitation” or “e-access”, and it is slowly but surely gaining momentum in states around the nation.  It began in Utah back in 2004 and is currently available in five other states: Florida, Illinois, North Carolina, Texas, and Wisconsin.  Over 20 states are currently contemplating virtual visitation laws.

Virtual visitation allows the parent to contact their child via webcam rather than the traditional physical transfer of custody.  This would allow parents to increase the amount of contact when they are separated from the child.  Virtual visitation usually refers to video communications, but statutes may also include other mediums such as texting, instant messaging, e-mail, and phone calls.  It is particularly helpful in circumstances where the parents are separated by long distances.

Now, virtual visitation is not meant to replace traditional visitation where the parent and child actually spend time in each other’s presence.  It is treated more as a form of supplementation that is intended to keep the parent and child updated with one another.  It is up to the court’s discretion as to whether or not they will allow virtual visitation.  In one case, a New York judge even ordered “Skype visits” as a condition of the mother’s move to another location.

So, is virtual visitation ideal for everyone?  When is it considered to be a good option?  Here are a few of the pros and cons of virtual visitation:


A growing need for more contact:  Parents in general (not just those affected by divorce or separation) have less time to devote to quality time with their children.  This is mostly due to issues related to work: a bustling workday, long commutes and traffic, and multiple jobs can all cut into a parent’s free time.  This is especially true of separate parents, who must often travel even further just to see their child.  Virtual visitation is a way for many parents to share time with a child when they cannot otherwise do so.

Accessibility of technology:  Previously, web cam chatting was sparse and faulty at best.  Slow download speeds, choppy images, and frequently interrupted connections made video conferencing difficult.  Now, web cam applications are becoming more affordable and the overall experience is more enjoyable.  Smart phone applications can also make virtual visitation easier (although some skeptics predict that the iPhone 4’s Face Time feature may eventually flop).

For many children and youths, virtual relationships are the norm:  It can be argued that chatting via webcam is not the ideal way to raise a child, which I certainly agree with.  Certainly nothing can replace personal, face-to-face social interaction.  However, a good percentage of children already maintain several virtual relationships online, mostly with friends and classmates.  Further, it can easily be said that some children interact with their peers online more than they do in person.

Thus, virtual visitation can be seen as a way of “leveling” with the child, or in other words, meeting them on their own turf.  For the parents and older generations, the internet is a new invention, a novelty that took their lives by storm.  However, for the children, the internet is a basic staple of their lives, something that they were born into (just like *real* books and toys were for us).  So, virtual visitation might not actually be as much of an adjustment for the child as it will be for the parent.  For the child it can be compared welcoming a person into your own personal arena or zone.

Some Cons of virtual visitation:

Lack of uniform rules:  Only a handful of states actually grant virtual visitation.  Of the ones that do, the network of laws governing virtual visitation are vague and inconsistent.  Many statutes simply list electronic communication as an acceptable method of visitation.  The laws do not address such specific issues like how long the virtual visitation is supposed to last, when it can be done, by which parents, and when virtual appointments should be made.  This can lead to conflicts in scheduling between parents.  One parent even complained that constant attempts to videochat by the other parent were cutting into her own private time with the child.

Virtual visitation allows for only limited interaction:   Parents who engage in virtual visitation are severely limited in terms of what they can do with their child during an online “visit”.  You cannot help a kid tie their shoes, play catch with them, or dress a wound over the internet.  Probably the most useful activity that can happen is for the parent to help their child with homework while they’re both on the computer.

So, what does the future have in store for virtual visitation?  Where is all this leading to?  Will courts address other internet issues such as parents “friending” their kids on Facebook?  Will bonds be forged through online gaming? (“What’s your Gamertag, son?”)

Personally I am all for virtual visitation.  In my opinion, more interaction is always better than less.  And bear in mind that for some children whose parents aren’t legally separated (such as those whose parents are overseas), Skype time is how they communicate with their parents.  I’ve been ranting for some time now about how slow courts can be to keep pace with technology.  But in this case, it appears that the judicial system is doing its best to keep uploaded, I mean, updated.

***For parents who are interested in learning more about virtual visitation, there are an abundance of resources available at***