Bar Journal - Fall 2006
By: Dan Wise
A title for this issue was difficult to decide upon, as the issue is comprised of unrelated though interesting articles— introducing new laws, closely examining existing ones in light of new situations, and, in the case of an in-depth article by Eugene Van Loan, a critical reexamination of the history and assumptions behind a hallowed tradition. The issue also includes a unique, insiders’ perspective on events from recent national headlines – the selection of two United States Supreme Court justices. And, like a reliable caboose, Charles DeGrandpre brings up the rear of the issue with another refreshing review of recent actions of the New Hampshire Supreme Court.
The first pair of articles addresses recent steps to modernize trust laws. Michelle Arruda, an estate lawyer, and William Ardinger, who concentrates his practice in tax matters, collaborated on an article that introduces and explains the Trust Modernization and Competitiveness Act of 2006, a new state law that, in this era of fluid capital, is designed to create an especially favorable environment for the establishment of trusts in New Hampshire. Mary Susan Leahy and Terry Knowles, New Hampshire Department of Justice’s Assistant Director of Charitable Trusts, then analyze the Uniform Management of Institutional Funds Act (UMIFA) which has worked well in providing flexibility and also structure to the estate trustees’ role. The article highlights some unanticipated consequences to aspects of the law as a result of large donations to charities that then suffered steep fluctuations in value.
The next pair of articles provides primers on two very different activities. Peter Beach, with the assistance of Christopher Hamlen, guide readers through the tax impacts of transactions involving intellectual property such as patents, copyrights, trade secrets, trade names, and “know-how” such as secret formulas. Attorney James Allmendinger then provides guidance and an update on a 30-year-old law, RSA 273A, governing the collective bargaining process for public employees.
Next, we have a pair of articles that deal with fundamental concepts of the United States and New Hampshire constitutions and the role of the judiciary in public life. Eugene Van Loan poses a challenging thesis that the judicial branch, particularly in New Hampshire, has over-reached in their interpretations of their authority to exclusively review the constitutionality of legislative acts. While judicial review has been long enshrined in our legal tradition, Van Loan contends that an objective examination of its historical foundations finds the timbers far thinner and less sturdy than others have assumed. It will be surprising if this article and its iconoclastic thesis do not end up being much quoted – pro and con— in legal journals in years to come.
A contrasting view of the role and power of the judiciary is found in the edited remarks of Portsmouth attorney Stephen L. Tober, which were delivered recently at his alma mater, the Syracuse University College of Law. Tober, who recently completed a news making term as chair of the American Bar Association’s Standing Committee on the Federal Judiciary, finds the judiciary and the legal profession at the mercy of an overwhelming and distortion-prone media environment. During Tober’s tenure as chair – during which his panel reviewed the qualifications of three United States Supreme Court nominees (John Roberts, Harriet Miers and Samuel Alito) — he himself became the target of conservative bloggers over the ABA committee’s role in the confirmation process. He candidly talks about the experience of being at ground zero of media scrutiny and partisan jousting over judicial nominees; he relates that experience to the media uproar and intense public interest surrounding the impeachment proceedings in New Hampshire several years ago against three members of our Supreme Court.
As you can see, this issue of the Bar Journal is hard to characterize – a diverse array of topics including the new, the old; topics focused on very specific areas of the law, and topics torn from today’s headlines. Despite their diversity, we hope you find all of these articles worthy of your review. Please enjoy the issue.