First Monday in October – Earlier this Week

October 6, 2016

The first Monday in October came and went earlier this week. With it the 2017 Supreme Court term began. I have some thoughts. Read on, s’il vous plait.

The Supreme Court exists as an anti-democratic institution, created by and through an anti-democratic Constitution. The people play no direct role in the selection of Supreme Court justices. Only because of the 17th Amendment to the Constitution—ratified 125+ years after the 13 states ratified the Constitution—do we elected directly United States Senators, who provide advice and consent with respect to individuals nominated to serve on the Court. That’s as close as we get to a direct role, for even in electing the president who nominates justices, votes mean more in one

Continue reading...

Donald Trump and the Trump Foundation

September 18, 2016

We’re all about Donald Trump and the Trump Foundation today. Here’s a CNN exchange between Trump Campaign Manager Kellyanne Conway and reporter Alisyn Camerota on Tuesday, September 13:

Conway:  Donald Trump has been incredibly generous over the course of his life.

Camerota:  With his own money?

Conway:  With his own money, and his foundation’s money – which is his money.

Where do I begin? So many falsehoods in Ms. Conway’s 24 words.

Let’s start with the fact that for almost 20 years I served on and chaired nonprofit boards. I have also raised a few hundred thousand dollars for charities. Done lots of work on fund development and board governance issues. Represented several nonprofit entities. And

Continue reading...

Estate Planning for Smart People

August 9, 2016

Estate Planning for Smart People does take off on the better known series. And, for sure, I’m not offering a full-fledged book here. Instead, I write to share some thoughts and provide some guidance for a particular group of people: smart people.

estate planning

Mark Rubin

Introductory Comments

If you’re here, you’re a smart person. Why? Because you’re devoting time and energy to the estate planning process. It’s a process, for sure, and it does take time and energy. And lots of thinking!

For many reasons the whole estate planning thing makes people uncomfortable. Here are some of those reasons:

  • It’s about not being among us.
  • Estate planning often involves hard decisions about important matters.
  • It can be mysterious and intimidating.
  • People
Continue reading...

Adverse Possession

July 18, 2016

Adverse possession involves taking property which does not belong to you. There is a lawful process. Still, the whole thing stinks, more than a little bit.

Adverse possession laws exist for a reason: the law wants to encourage the productive use of property. If someone uses property in a productive manner, even if he or she does not own it, the law gives him or her the benefits attendant to ownership.

Statues define the necessary elements for an adverse possession claim, but court decisions have fleshed out t issues. In Arizona there are several adverse possession statutes; however, the most commonly used statute is A.R.S. § 12-526. The statute permits a transfer of title to someone holding the property

Continue reading...

“Naked” in the Courthouse

July 11, 2016

Naked, I felt. At 9:23 a.m. my secretary Chandra found me, getting a glass of water, to remind me about the status conference at 9:30 a.m. at the courthouse.

“Say what,” I said.

“You know, the status conference in –.”


I got to the courthouse by 9:30, thanks to a ride from Chandra. The hearing went well. A status conference involves making sure everything is on track, and everything was and is.

So, why naked? Well, I had a tie in my office (and it got tied in the car, and with a very fine knot, thank you very much), but no jacket. Without the jacket I did, truly, feel undressed in the courtroom. Truth be told, I am

Continue reading...

The U.S. Supreme Court; It’s a Wrap!

June 27, 2016

On Monday, June 27, the U.S. Supreme Court issued decisions in Voisine et al. v. United States, No. 14-10154; Whole Woman’s Health v. Hellerstedt, No. 15-274; and McDonnell v. United States, No. 15-474. With these decisions, the oddest Term in this writer’s memory is a wrap!

On the odd part, on February 12 or 13 Justice Antonin Scalia died suddenly at a hunting lodge in Texas. Senator Majority Leader Mitch McConnell announced within an hour of the confirmation that Justice Scalia’s death that the Senate would not vote on any nominee put forward by the sitting President of the United States. (Senator McConnell controls the Senate calendar, and is also the man who will

Continue reading...

Law and Lore: Some Confusion Clarified

June 20, 2016

I was in a meeting recently. Some legal topics came up. The people with whom I was meeting—non-attorneys—knew the subject, but we all knew there might be misunderstandings, as laws, or law and lore, get confused. Here are three examples.

Right-to-Work and At-Will Employment. People—even an attorney or two—confuse these concepts. How? Read on.

Right-to-work laws exist in 25 states, including Arizona. The Arizona law, codified at A.R.S. § 23-1302, states:

No person shall be denied the opportunity to obtain or retain employment because of nonmembership in a labor organization, nor shall the state or any subdivision thereof, or any corporation, individual, or association of any kind enter into an agreement, written or oral, which excludes a person from

Continue reading...

Some Thoughts About Contested Probate Cases

June 13, 2016

Family law was never my thing. Alas, we don’t often know how life will turn out. About 15 years ago my practice focus shifted much more heavily into probate and estate planning. And probate, it turns out, is family law without the divorces, mostly.

Most probate matters—no good stats, but far more than 90% is my best estimate—get processed easily, quickly, and for a few thousand dollars. Then there are the outliers, which almost always have in common: (a) a dysfunctional family; and (b) deceased or demented parents. Sometimes, there’s lots of money or complicated assets, but in plenty of cases an inverse relationship exists between value and the intensity of the battle.

The battle may arise in a conservatorship

Continue reading...

Judge Gonzalo Curiel and Donald J. Trump

June 6, 2016

Donald J. Trump has taken out after U.S. District Judge Gonzalo Curiel, who happens to be the judge in Low, et al. v. Trump University, LLC, et al. and Cohen v. Donald J. Trump. The basic facts, for anyone who hasn’t been following the situation, are laid out well in Why Is Donald Trump So Angry at Judge Gonzalo Curiel?, written for The Atlantic on June 3, 2015 by Matt Ford.

Mr. Trump is a jackass, going after the judge in his case in public while it’s pending. Judge Curiel holds a lifetime appointment. The case is his, unless he recuses or gets disqualified. And about federal judges, there’s an old joke: What’s the difference between G-d

Continue reading...

Abraham Lincoln on Law

May 30, 2016

The 150th anniversary of the Civil War (five years ago), Memorial Day (which tracks back to Decoration Day, dedicated to honoring those who died in the Civil War) and the notion that Donald Trump might be our 45th President of the United States of America, brought to mind Abraham Lincoln. Before he went to work for the federal government in 1861, Mr. Lincoln was a very accomplished attorney. Notes for a Law Lecture, dated July 1, 1850, may or may not have been used in a lecture, but they have survived for more than 165 years.

Age aside, the Notes are worthy of attention for attorneys and non-attorneys, for Mr. Lincoln focuses on four major, timeless themes: 

Continue reading...