Re: No One Remembers The Rule Against Perpetuities

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You'd think the justices would remember Tony Randall.


Posted by: Flippanter | Link to this comment | 04-29-15 6:20 AM
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Mmmh, but what about an 80 year-old woman marrying a 40 year-old man. It would almost be like she was wasting his procreative opportunities.

I've been looking at the Anglican and Episcopal wedding services. (Sorry neb, if I'm boring you with talk about my wedding.) The language in the service about the purpose of marriage has changed a lot. In the first English Prayer book, it basically says that marriage is for (1.) channelling carnal lust and (2.) the procreation of children. Nowadays, it's about "mutual love and comfort" and "rearing of children if that's God's will". And when Episcopalians say "God's will," they mean "if you've thought and prayed about it for a while and considered what you want and are able to do as a couple, then that's part of marriage too."

I know that civil and religious purposes are different, but I do think that the change in the religious language reflects changes in broader cultural attitudes to marriage. I'm not saying that what the Episcopal church says is prescriptive for the rest of society.


Posted by: Bostoniangirl | Link to this comment | 04-29-15 6:27 AM
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I'm hoping he at least thought of it.


Posted by: idp | Link to this comment | 04-29-15 6:46 AM
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Oh, very good.


Posted by: widget | Link to this comment | 04-29-15 7:24 AM
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I think he did--he said something about the man being able to procreate, so even if he married a woman not likely to bear children at least he's not out there knocking up younger women out of wedlock and producing kids not tied to both their biological parents through the bonds of matromony. This was, unsurprisingly, relatively low on the list of stupid things he said.


Posted by: potchkeh | Link to this comment | 04-29-15 7:27 AM
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Oh never mind. I should read more carefully before commenting.


Posted by: potchkeh | Link to this comment | 04-29-15 7:38 AM
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There's a joke here that I don't get, right?


Posted by: ogged | Link to this comment | 04-29-15 7:48 AM
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Don't worry, nobody gets the rule against perpetuities.


Posted by: potchkeh | Link to this comment | 04-29-15 7:51 AM
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Yep. I figure if I'm only going to put up a post every three months or so, it should be tightly directed to a limited audience, and designed to just annoy everyone else.

But I also figured the thread would probably turn to general discussion of gay marriage as a constitutional right.


Posted by: LizardBreath | Link to this comment | 04-29-15 7:52 AM
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8: I mentioned this before, maybe actually from the courtroom where it was happening, but I was once waiting for my case to be called, and sort of half listening to the argument in another case -- something about a real estate lease -- when I realized that it was a hotly argued rule against perpetuities issue. I was riveted: I'd had no idea that it was something that ever came up for real. But thise guys had somehow drafted a lease that accidentally ran afoul of whatever aspect of the rule against perpetuities is still active law.


Posted by: LizardBreath | Link to this comment | 04-29-15 7:54 AM
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The rule against perpetuities is not a terribly uncommon topic, here.


Posted by: Sifu Tweety | Link to this comment | 04-29-15 7:55 AM
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10: indeed you did.


Posted by: Sifu Tweety | Link to this comment | 04-29-15 7:56 AM
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Wikipedia says it's death + 21 years as the limit, so isn't copyright law (death + 70) a violation of that? Perhaps the answer is somewhere in the search result link in 11.


Posted by: SP | Link to this comment | 04-29-15 7:59 AM
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13: it only covers certain kinds of property interests, and anyway it's a common-law rule, not a constitutional rule, so the legislature can override it however it wants.


Posted by: potchkeh | Link to this comment | 04-29-15 8:01 AM
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Curious: how toothy is the rule of perpetuities in practice these days? Do people with enough money typically get around it? It may actually affect me because there seems to be some kind of trust from a family fortune made four or five generations ago, that is still helping support some in the generations above me, and it may in my lifetime get to the point where the rule becomes applicable, if it isn't already. (Aware it varies by state; the family originates, at least, in a state that has the Uniform version.)


Posted by: Levi P. Morton | Link to this comment | 04-29-15 8:22 AM
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Wikipedia reveals the unexpected connection between the rule against perpetuities and the rebel plan to destroy the death star.


Posted by: Sifu Tweety | Link to this comment | 04-29-15 8:26 AM
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Right when it comes out from behind Yavin, all lives in being at the time the future interest was created have ended. You know, because, the planet has been blown up.

The rule against perpetuities is a great start for a really weird trip through Wikipedia articles about property law, all based on ancient precedent. Currently trying to figure out what the hell usufruct is.


Posted by: dalriata | Link to this comment | 04-29-15 8:29 AM
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it may in my lifetime get to the point where the rule becomes applicable, if it isn't already.

Obviously you should consult someone who knows what they're talking about, but I thought the rule was about what's ascertainable at the time the interest is created--i.e. either the rule is violated from the get-go or it's not, and "becoming applicable" isn't really a thing?


Posted by: potchkeh | Link to this comment | 04-29-15 8:29 AM
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18: I guess that was my impression too, but maybe if it was made in a clever way so the violation is only more obvious after the trust has actually exceeded the time limits?


Posted by: Levi P. Morton | Link to this comment | 04-29-15 8:32 AM
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but I thought the rule was about what's ascertainable at the time the interest is created--i.e. either the rule is violated from the get-go or it's not, and "becoming applicable" isn't really a thing?

I really don't remember this clearly enough to work through it (Flip probably does, with the friend who demands RAP bedtime stories), but there's some difference between when the papers are drafted and executed, and the time when you check 'all lives in being'. That's where the fertile octogenarian comes in: if there's a theoretical possibility of a future baby that would be a 'life in being' when you do that check.


Posted by: LizardBreath | Link to this comment | 04-29-15 8:38 AM
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Oh, actually it looks like the Uniform act is wait-and-see, so that something that would have violated the common-law rule is okay as long as the perpetuity doesn't actually shake out. Anyway, no idea how toothy it is in practice but I would imagine if someone challenges it and they're right about the violation, a court's not going to just look the other way.


Posted by: potchkeh | Link to this comment | 04-29-15 8:38 AM
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general discussion of gay marriage as a constitutional right.

I'm honestly feeling so much despair about pretty much everything that I can't even get excited about this. Partly because the SC is so deeply fucked and destructive that I can't feel happy that they may do one good thing.

No disrespect, obviously, to those directly affected. Did I mention that my sister and SIL are getting (have gotten?) divorced? Equality!

Alito or Roberts dropping dead tomorrow would cheer me. Not sure what else would.


Posted by: JRoth | Link to this comment | 04-29-15 8:43 AM
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My not very well informed belief is that people get around the RAP these days through "dynasty" trusts, which effectively allow you to avoid the RAP and keep your assets in a series of trusts for your descendants forever. My guess is that it's pretty unlikely that the RAP would affect you but you should probably find a lawyer who knows what they're talking about.


Posted by: TRO | Link to this comment | 04-29-15 8:49 AM
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15: Most likely, the trust was properly established, and by its own terms it will terminate after four generations, specifically, 21 years after the death of the last living grandchild or great-grandchild of the creator. You want to look at the trust documents to see if you are among the ultimate beneficiaries.

I was once involved in a securities fraud case where the defendant settled by assigning a few million dollars from his anticipated inheritance, that would arrive on a particular date that was 21 years after the death of the last grandchild of a nineteenth century robber baron. Surprisingly, my clients actually received their money. Once the defendant received the inheritance, he no longer needed to commit securities fraud for a living.


Posted by: unimaginative | Link to this comment | 04-29-15 8:54 AM
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9, 22: Hearing the anti-marriage people making a bunch of arguments about marriage being only for biological children in front of Roberts has got to be amusing for the people there, though. We don't get to see his facial expressions, but it would be interesting to see them.


Posted by: MHPH | Link to this comment | 04-29-15 9:01 AM
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25 is basically my reaction, which is otherwise not unlike JRoth's. Thomas has also adopted a child, I think a relative of his.


Posted by: Thorn | Link to this comment | 04-29-15 9:13 AM
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My dad mentions the rule against perpetuities more often than is strictly necessary.


Posted by: Moby Hick | Link to this comment | 04-29-15 9:15 AM
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I'll tell you one thing I don't like about property law: RAP isn't law! It's just yelling!


Posted by: Jesus McQueen | Link to this comment | 04-29-15 9:28 AM
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I resorted to wikipedia to get some clue as to what the RAP is. I found this bit interesting:

The rule is notoriously difficult to properly apply, as pointed out by a 1961 decision of the Supreme Court of California which held that it was not legal malpractice for an attorney to draft a will that inadvertently violated the rule against perpetuities. Therefore, in the United States it has been abolished by statute in Alaska, Idaho, New Jersey, Pennsylvania, Kentucky, and South Dakota.


Posted by: AcademicLurker | Link to this comment | 04-29-15 9:34 AM
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The "therefore" is misleading -- it was abolished in some states not because it was "too hard" but to allow the creation of the afore-mentioned dynasty trusts, which let very wealthy families lock up their assets in the family essentially forever, while also having estate tax benefits I don't claim to fully understand. Thanks to federalism you can set up your trust to be governed by a law different from the state in which you reside, so many very rich families have dynasty trusts governed by the law of South Dakota, and the RAP is as a practical matter basically a non-issue for the intergenerational transmission of serious wealth in the US these days.


Posted by: TRO | Link to this comment | 04-29-15 9:49 AM
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As for the arguments yesterday, the word "dignity" is usually Justice Kennedy's tell at oral argument and he used it four times to refer to the personal dignity of same-sex marriage but not at all to refer to the sovereign dignity of the states. That suggests a good summer for the wedding-industrial complex.

Dahlia Lithwick pointed this out at Slate, which I can't help but feel is somewhat irresponsible. Mainstream press coverage at this point should be focused on how the Court generally and Crucial Swing Vote Justice Kennedy specifically are clearly giving very serious consideration to weighty issues of constitutional principle and we can only hope that he -- I mean "they," of course -- will conclude that the time is right for another great advance for civil rights. Preferably accompanied by pictures of young same-sex couples with cute kids and quotes from elementary school students explaining that they just hope they'll finally be able to go to school and tell their friends that their parents were able to get officially married.


Posted by: widget | Link to this comment | 04-29-15 9:53 AM
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elementary school students explaining that they just hope they'll finally be able to go to school and tell their friends that their parents were able to get officially married.

Some of them are very honest that this dream is all about cake. Well, cake and the fancy dresses they assume they'd get to choose and wear.


Posted by: Thorn | Link to this comment | 04-29-15 9:58 AM
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30: That's too bad. I kind of liked the idea of state legislatures saying "This sh*t's too damn complicated. How about we just toss it?"


Posted by: AcademicLurker | Link to this comment | 04-29-15 10:01 AM
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Aren't there some states where legislatures did in fact say the common law rule was too complicated, and then replaced it with a determinate time limit (which wouldn't raise the dynasty issues mentioned in 30)? I have a dim recollection of something like that.


Posted by: widget | Link to this comment | 04-29-15 10:05 AM
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Oh, this is the thing from The Descendents.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 04-29-15 10:10 AM
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As a resource ecologist, I suspect we should have stuck with usufruct. Less sure about turbary.


Posted by: clew | Link to this comment | 04-29-15 10:13 AM
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I'm half-hoping for a 6-3 pro-marriage rights opinion written by Roberts. On the one hand, that will be an opinion on the narrowest possible grounds. On the other hand, we won't have to endure 30 pages of blather about fundamental dignitude and whatever from Justice Kennedy.

My view has always been that the gay marriage cases are extremely simple. Either the US constitution permits states to discriminate against gay people based on the view that heterosexuality is morally superior to homosexuality, or it doesn't. If it does so permit, it's clearly constitutional to ban gay marriage; if it doesn't permit discrimination based on a desire to discourage homosexuality, it's clearly not. It's that simple. But, we will have to endure blather upon blather because for some reason Justice Kennedy thinks it's important to allow gay marriage but also important not to say that state discrimination based on a moral aversion to homosexuality is impermissible. Even though it's so clearly taboo now to claim that discrimination based on moral aversion to homosexuality is permissible that even the anti-gay-marriage side won't go there.


Posted by: TRO | Link to this comment | 04-29-15 10:15 AM
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I think we're much more likely to get a process-based dissent from the Chief ("many may applaud the Court's result today; I have no occasion to differ with them; but that result should have been reached by democratic means rather than imposed by judicial fiat"). I doubt he'll see an imperative to write so he can narrow the opinion. AMK has already been writing his gay rights opinions pretty narrowly (soaring rhetoric, big principles, tiny little holding if you can find it at all). And I doubt he (JGR) will see his legacy as being seriously tainted by a dissent of that type.

37.2 is the best principled view, I think; from first principles, it's not hard to get to heightened scrutiny, and from there the rest is very easy indeed. Probably the Court will go there in a few years, if Hillary gets an appointment or two. I'd be surprised to see the doctrinal move happen this June, though.


Posted by: widget | Link to this comment | 04-29-15 10:30 AM
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Agree with 38 about what is most likely to happen. Though, I wouldn't be surprised to see a Roberts majority opinion. Elite rightish wing business-lawyer sentiment, which is what I believe drives Roberts in all cases where it can reasonably do so, is now so far over to the gay-marriage side of things that I do think he may worry about his reputation and legacy if he comes down on the other side.


Posted by: TRO | Link to this comment | 04-29-15 10:43 AM
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From this summary (PDF), it looks like a large majority of states have either statutized or abolished the RAP; at my rough count it's common law only in 13 states. Amusingly, some states have changed the "within 90 years" to 360, 500, or even 1,000 years. I guess it's mostly moot if you can forum-shop, though.


Posted by: Minivet | Link to this comment | 04-29-15 10:53 AM
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I do think he may worry about his reputation and legacy if he comes down on the other side.

Agreed. For that reason, I think Roberts writes the opinion.


Posted by: will | Link to this comment | 04-29-15 10:56 AM
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The Ct of Appeals in Va just came down with an odd decision. http://www.courts.state.va.us/opinions/opncavwp/1768144.pdf

Short version: same sex couples can't cohabit.


Posted by: will | Link to this comment | 04-29-15 10:58 AM
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For that reason, I think Roberts writes the opinion.

Any guesses as to what doctrinal gratuity for conservative business interests he will he slip into the majority opinion?


Posted by: knecht ruprecht | Link to this comment | 04-29-15 11:00 AM
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40-41: Could be. It's suggestive that Clement isn't in the case, certainly. I assume they must have asked.


Posted by: widget | Link to this comment | 04-29-15 11:05 AM
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43: Certainly something. Maybe related to health insurance.

44: Excellent point. I hadn't thought about that. I'm not Supremes expert, but damn he is good.


Posted by: will | Link to this comment | 04-29-15 11:25 AM
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Let's be honest, this overturning marriage bans and Halbig overturning ACA subsidies will probably be a pair of one page decisions where each refers to the other and says, "Look how ideologically balanced we are! We're the socially liberal- fiscally conservative future!" Because really, are SCOTUS decisions these days anything but political votes with 9 instead of 100 or 435 voting members?


Posted by: SP | Link to this comment | 04-29-15 11:25 AM
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42 is wacky. I wonder which states with SSM have that trap, and if same-sex couples know about it.


Posted by: Nathan Williams | Link to this comment | 04-29-15 11:52 AM
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42: Wow. Another argument for the wisdom of the analogy ban.

47: Wouldn't it only arise in states without SSM? Living with a same sex partner isn't cohabitation if there's no SSM, because without SSM living together isn't analogous to marriage.


Posted by: LizardBreath | Link to this comment | 04-29-15 11:55 AM
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I started reading the opinion but even I have limits to how much time I'll waste. When you say "same sex couples can't cohabit" you mean two people of same sex are banned from living together and will be forcibly* separated, or when they live together it's not called cohabitation for legal purposes e.g. alimony cancellation? I'm guessing the latter but who knows these days.

*Inappropriate joke our HS history teacher used to tell- How did they separate the men from the boys in ancient Greece? With a crowbar.


Posted by: SP | Link to this comment | 04-29-15 12:03 PM
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The latter.


Posted by: LizardBreath | Link to this comment | 04-29-15 12:05 PM
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After googling, I see this is a longstanding thing but to someone who does not usually read oral arguments, it was weird to, well, skim the thing and somewhere late in the game think "wait just a second here!" and do a word search on "Thomas."


Posted by: Mister Smearcase | Link to this comment | 04-29-15 12:08 PM
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I should say my usual "It's a quirk, not an indication of incompetence," piece. I disagree with the man about almost everything, but oral argument is mostly nonsense, and not participating in it makes him an oddity but does not in itself make him a bad judge.


Posted by: LizardBreath | Link to this comment | 04-29-15 12:12 PM
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There's really no rational basis for preferring gay cohabitation to gay marriage.


Posted by: CharleyCarp | Link to this comment | 04-29-15 12:18 PM
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So it's a windfall to (literal) gay divorcees, right? You're in a hetero marriage, you divorce and collect alimony as the lower-earning spouse, then you shack up with a wealthy same-sex partner and continue to get the same amount of alimony you'd get if you had no other means of support.


Posted by: TRO | Link to this comment | 04-29-15 12:30 PM
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52: ah, ok. I am probably the only person on unfogged that doesn't think much about these things.


Posted by: Mister Smearcase | Link to this comment | 04-29-15 12:33 PM
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And it's sometimes weird/embarrassing to me that I suddenly take an interest when it's about teh ghei.


Posted by: Mister Smearcase | Link to this comment | 04-29-15 12:34 PM
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Yeah, sometimes I feel weird about the percentage of my posts that are about feminism. It's not exactly that problems that affect me directly are the only things I'm interested in, but they are the things where I feel likeliest to have something to say that might interest anyone else.


Posted by: LizardBreath | Link to this comment | 04-29-15 12:37 PM
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57 is the words of a crazy person. Feminist issues are generally important enough that there's no reason to feel weird about bringing them up.


Posted by: Walt Someguy | Link to this comment | 04-29-15 12:58 PM
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Just like a man -- a woman says something you disagree with, and you call her crazy. No, I don't mean to be apologetic about feminism, it's just the percentage of attention that I find myself giving to middle-class liberal feminism-type issues sometimes seems disproportionate.


Posted by: LizardBreath | Link to this comment | 04-29-15 1:07 PM
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You could branch out into men's rights.


Posted by: ogged | Link to this comment | 04-29-15 1:09 PM
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They have rights? Who knew?


Posted by: LizardBreath | Link to this comment | 04-29-15 1:11 PM
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61: Well.. we used to.


Posted by: peep | Link to this comment | 04-29-15 1:13 PM
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In its majestic equality, the law forbids men and women alike from writing their names in the snow in public.


Posted by: SP | Link to this comment | 04-29-15 1:16 PM
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Standing on a highway
Pants around my knees
I'd write her name out on the road
But I can't piss Denise

I first verified that I had posted these lyrics here before.

Smearcase has teh ghei, LB has feminism, and I have .........


Posted by: peep | Link to this comment | 04-29-15 1:23 PM
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(The Mattachine Society filed an amicus brief? The Mattachine Society still exists?)


Posted by: Mister Smearcase | Link to this comment | 04-29-15 1:32 PM
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65: A new Mattachine Society of Washington, D.C. was formed in 2011 and is dedicated to original archival research of LGBT political history

I verified that this was the organization that filed the amicus brief.


Posted by: peep | Link to this comment | 04-29-15 1:40 PM
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South Dakota abolished it in a quest to beat out Delaware. You can set up dynasty trusts there which last forever. Led to a new role in addition to a trustee of trust protector.


Posted by: Bostoniangirl | Link to this comment | 04-29-15 2:14 PM
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The life in being at the time if the creation of the trust can either refer to an individual, say the only grandchild around when a trust is created, or a class-- all of the grandchildren, and therefore the youngest sibling to the one alive at the creation of the trust.


Posted by: Bostoniangirl | Link to this comment | 04-29-15 2:17 PM
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Yeah, AISIMHMMTOB, I think I missed the unborn widow question on the bar.


Posted by: CharleyCarp | Link to this comment | 04-29-15 7:18 PM
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59: What I'm saying is that you need to leave feminism to men, who can be calm and rational about it.

Parks and Recreation had a fairly funny episode about men's rights in their last season. Leslie Knope's final --verdict was "men's rights is nothing."


Posted by: Walt Someguy | Link to this comment | 04-30-15 12:33 PM
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