Letters to the Editor
A Missed Chance?
Posted Jul 1, 2008 8:00 AM CDT
In “A Voice for the Write,” May, Justice Antonin Scalia recommends catching a life preserver offered to counsel by a presumably accommodating judge. Failure to follow his advice conceivably can determine an issue as earth-shattering as who will be president of the United States.
In Bush v. Gore, Justice John Paul Stevens, apparently offering the option of a remand, asked counsel for the appellee whether the equal protection issue could be resolved by counting the whole state. The distinguished advocate missed the chance to salvage his case by answering that the record did not deal with that point.
Peter A. Schwabe
In “Trumping the States,” May, David Savage provides a useful summary of current Food and Drug Administration pre-emption cases.
However, it is relevant to emphasize that Warner-Lambert Co. v. Kent did not turn on the wider issue of FDA pre-emption in the drug arena. Rather, it concerned a Michigan law that allows liability claims if plaintiffs can show that the FDA was defrauded. Drawing on Buckman Co. v Plaintiffs’ Legal Committee, defendants argued that only the FDA can find fraud against itself, not state courts, and thus it was only this specific “fraud exception” for which pre-emption was being claimed.
Indeed, in their amicus, the FDA and the Justice Department (perhaps being coy) went out of their way to emphasize that the wider issue of FDA pre-emption was not at issue in Kent.
That wider issue will be at the core of Wyeth v. Levine. Stay tuned.
Ann Arbor, Mich.
A CRUSADER IN THE PLOT AGAINST PROBATE
Thank you for publishing “Plotting Against Probate,” May, especially the section that discusses transfer-on-death deeds.
For almost six years I have been fighting the California trust/ probate lawyers, who are determined to prevent California homeowners from ever using a transfer-on-death deed, as provided by Assembly Bill 250, which is currently stalled in the Senate. I am the sponsor of the bill, which was filed by Assemblyman Chuck DeVore.
California has one of the most complex, expensive probates in the nation. The state’s probate and trust lawyers are protecting their wallets to the detriment of their own clients as well as low-income homeowners who cannot afford a lawyer. As a part-time volunteer lawyer in the senior citizens program of the local legal services office, I have, for more than 15 years, seen low-income homeowners who have already recorded a quitclaim deed or a joint tenancy deed, which has resulted in disaster. They recorded these deeds in an effort to avoid probate. But their loved ones will not return the home to the elderly homeowner. And the homeowner will not allow the legal services lawyer to report this to the police, the district attorney or adult protective services, because they do not want to hurt their loved ones.
Some low-income homeowners tell me they want to avoid probate before they sign the quitclaim deed or the joint tenancy deed. I tell them that if they lived in 10 other states, they could hold title with a revocable TOD deed, but not in California.
California was one of the last states to allow its citizens to transfer mutual funds and securities on death. I hope it is not one of the last to allow its citizens to use a revocable transfer-on-death deed.
Mary Pat Toups
Laguna Hills, Calif.
A GLOBAL REACH FROM THE OUTSET
In “It’s a Small World,” May, Executive Director Henry White properly gives credit to the Rule of Law Initiative.
ROLI’s roots are well-grounded in the history of the ABA. ROLI grew out of the ABA’s Central and East European Law Initiative, which originated as a project of the ABA Section of International Law under Homer Moyer's chairmanship in the early 1990s.
The Section of International Law itself evolved from the Committee on International Law, one of the seven original committees of the ABA at its inception in 1878. The committee became the Section of International and Comparative Law in 1933. The section’s first chair was John Henry Wigmore. The committee, followed by the section, has helped lead the profession in all areas of international law and practice. Thus it is accurate to say that the ABA has been pioneering efforts to promote the rule of law globally for 130 years.
Section of International Law
AN INSTRUCTIVE REMINDER
I write to thank the ABA Journal for publishing the photograph of the African-American man drinking from the "colored" water cooler ("Precedents," May). It is a necessary reminder of our shameful past and our profession's need to continue to champion equality for all.
As a young man, I saw a few signs in some Arizona restaurants that said "No Mexicans or Dogs Allowed," which remained well into the early 1970s. I will post this photograph in my home so that my children will always feel the need to be vigilant in advocating for the many that are wrongfully excluded by "mainstream" society.