Last Lecture: Robert Sitkoff on resolving disputes through law, not ‘baseball bat’

0:39

estates, and fiduciary administration.

0:41

Professor Sitkoff clerked for then Chief

0:43

Judge Richard Posner of the United

0:45

States Court of Appeals for the Seventh

0:47

Circuit. He taught at both NYU and

0:49

Northwestern before joining the Harvard

0:51

Law School faculty in 2007, where he

0:54

became the youngest professor to receive

0:56

a chair in the history of the school.

0:58

Professor Sitkoff has been published in

1:01

leading scholarly journals such as the

1:02

Yale Law Journal, the Stanford Law

1:04

Review, the Columbia Law Review, the

1:06

Journal of Law and Economics, and many

1:08

many others. Professor Sitkoff is a

1:10

co-author of Wills, Trusts, and Estates,

1:12

the most popular American coursebook on

1:14

Trusts and Estates, and he is a

1:15

co-editor of the Oxford Handbook of

1:17

Fiduciary Law.

1:19

Professor Sitkoff's research has been

1:20

featured in the New York Times, Wall

1:22

Street Journal, and Financial Times,

1:24

amongst other media.

1:26

He's an active participant in Trusts and

1:27

Estates law reform. He serves on the

1:29

Uniform Law Commission as a commissioner

1:32

for Massachusetts. He previously served

1:34

as a member of several other drafting

1:36

committees for Uniform Trusts and

1:37

Estates Acts, including as chair of the

1:40

drafting committee for the Uniform

1:41

Directed Trust Act. And on a personal

1:44

note, I took Professor Sitkoff's Trusts

1:45

and Estates class last year and found it

1:47

to be one of the best classes I've taken

1:49

here at the law school. So, now, without

1:52

further ado, I know none of you are here

1:53

to hear me speak. Please help me in

1:55

welcoming Professor Robert Sitkoff.

1:58

>> [applause]

1:58

>> Thank you.

2:00

That's very kind. Thank you.

2:04

Uh, well, thank you. That's a

2:06

That's a very generous and kind um

2:09

uh, introduction. Um

2:13

So, let me say something about uh, what

2:15

what you just said and then I'll get

2:17

into some of the things I wanted to say.

2:18

So, um, from time to time people make

2:20

that comment about uh, the youngest

2:22

chair. So, I'm going to tell you this

2:23

the true story what actually happened.

2:25

So, I was a visitor here in uh, spring

2:27

of um

2:29

uh, spring of 2007.

2:31

Elena Kagan was the dean at the time.

2:33

Uh, it was a good time to visit Harvard.

2:35

It was a period of promiscuous hiring,

2:37

so it was a good time to visit. And uh,

2:39

anyway, the faculty had a meeting and

2:42

voted my offer. Elena came to the office

2:44

and she we talked for a while and then

2:47

she got up to leave. You know by now

2:49

Colombo? Like she turned at the door,

2:50

she turned around, "Oh, one more thing.

2:52

If you If you say yes, you'll be the

2:54

John L. Gray uh, Professor of Law." I

2:56

said, "Oh my goodness, that's that's

2:58

amazing. That's really early in career.

2:59

I'm 31." And I said, "That's pretty

3:02

early to have a uh, chair. Oh my

3:04

goodness." And she said, "Well, the the

3:06

donor restricted it to a specialist in

3:07

Trusts and Estates, what else am I

3:08

supposed to do with it?"

3:10

So, that's actually what what what

3:12

happened. Okay, anyway, um, so I I thank

3:14

you for inviting me to do this. It's

3:17

it's a quite an honor. Um, one of the

3:19

reasons I moved here now

3:22

about 20 years ago was for you, for the

3:25

students. Your curiosity and energy

3:29

and engagement, uh, hunger to grow and

3:31

learn has been exciting and really the

3:33

best part of the job. It's made me a

3:35

better teacher, a better scholar, better

3:38

lawyer. You have over the years,

3:41

including the last 2 years, held me

3:42

accountable, forced me to think harder

3:45

and deeper about uh, issues. A little

3:47

bit later in this talk, I'm going to

3:49

quote a line that one of you wrote in

3:52

your exam and I've lifted and put in the

3:54

casebook as it's a good it's a good

3:56

line. But also, you have been um,

3:59

unfailingly generous. As some of you

4:01

know, the past year or two has been a

4:04

little bit rough

4:05

for me. My father died, I got a

4:07

concussion, each of my three children

4:09

had significant health issues, one

4:11

needed a surgery. It's been a bumpy

4:13

couple of years and throughout that

4:15

whole period, you've all been

4:17

People taking the classes in particular

4:19

have been

4:20

uncommonly generous and accommodating my

4:23

bumpiness and not, you know, there was

4:25

the one class I had to leave partway

4:26

through to go lie down because of my

4:28

head and whatever. And so thank you. So,

4:31

last lecture, I mean, I hope it's not my

4:34

last

4:35

lecture. I mean, it could be, but that's

4:37

not the, you know, hope for the best,

4:38

but plan for the worst. That's my That's

4:40

our field's motto. I don't think it's

4:42

going to be the last. People are

4:43

laughing. I mean that for real. Hope for

4:45

the best, but plan for the worst.

4:47

So, I I I don't think it's actually

4:49

going to be the last lecture, but I do

4:51

suspect that for many of you, this will

4:53

be my last chance to indoctrinate.

4:56

Right? The last chance to tell you some

4:58

things that I think are important that I

5:00

think will be are important to me for

5:01

you to understand as you embark on being

5:04

a lawyer, as you embark on the journey

5:06

of the rest of your life. And I I hope

5:09

it's not the last chance. I hope you

5:10

will stay in in touch and reach out and

5:13

email. Email's easy, right?

5:15

I'm in Hauser or whatever, but I

5:16

understand for many this will be.

5:18

So, I I puzzled for a little while about

5:20

what what could I tell you? You know,

5:22

what what would I what would what would

5:23

I want to do in this last lecture?

5:25

So, the problem is I have a pretty

5:27

narrow range of knowledge.

5:29

I

5:30

I

5:31

I I know a lot about Trusts and Estates

5:33

and fiduciary law. I also know about

5:35

classic Star Trek, coaching Little

5:37

League, and the Yankees,

5:39

making pancakes. None of this seemed

5:41

like really appropriate. So, I went back

5:45

and I gave one of these some years ago.

5:46

Was it 10 years ago? I looked at that

5:48

video and I I thought, "What have I

5:50

learned since then?" And first thing

5:52

came to mind was how to do colonoscopy

5:54

preps.

5:56

But that seemed like not also what we

5:58

should do uh

6:00

We could, if we we maybe the Q&A, we can

6:02

uh

6:03

So, my family said, "Don't talk about

6:05

colonoscopy." So, I win. There I did it.

6:07

Uh,

6:08

so let me tell you what I did. I I dug

6:09

up the outline, dug up my notes from

6:11

that. And what I was struck as I looked

6:13

at those notes from all those years ago

6:15

when I did one of these talks, what I

6:16

was really struck by

6:18

was the very different perspective, my

6:20

very different understanding of what I

6:22

told that class those years ago.

6:24

Right? And so, what I want to do today,

6:27

and that's reflects 10 years of growth,

6:29

right? 10 years of learning, 10 more

6:30

years of experience than you, 10 more

6:32

years of just life.

6:34

And so, what I want to do today is I'm

6:37

going to talk about a variety several of

6:39

the same things I talked about then, but

6:41

from a refreshed lens with what is the

6:44

current my current state of development.

6:47

And in doing that, what I'm trying to

6:48

model for you is the never-ending

6:51

growth, right? The idea that you will

6:53

continue to learn and develop as a

6:55

lawyer, as a person, as a child, a

6:58

sibling, a partner, whatever. The idea

7:00

that you need to keep learning. You need

7:02

to keep growing. You want to keep

7:03

reevaluating what you think you know

7:06

and look at these things afresh. So,

7:08

here's what we're going to do. I'm going

7:09

to tell you I'm going to try to tell you

7:11

some things that I wish I knew. I wish

7:14

that I knew when I was you. Right? When

7:16

I was getting ready to graduate and go

7:18

out. So, I want to tell you four things

7:19

that I didn't really understand then and

7:22

I think in truth, I didn't even really

7:24

understand 10 years ago. I mean, I

7:26

thought I did and I talked about them in

7:27

that talk, but I understand them

7:29

differently now and I'm sure in 10

7:31

years, I'll understand them even

7:32

differently then. But I want to talk to

7:34

you about what I think I understand

7:36

now.

7:38

You don't have to accept my vision. You

7:40

don't have to accept these things that

7:41

I'm going to be telling you. I want to

7:43

offer this as a kind of as a idea for

7:46

you to take in and then absorb and do

7:49

with what you wish. Right? Take this

7:50

into the full body of your development

7:53

as a person, as a lawyer, whatever else.

7:56

But mostly, what I want to do is get you

7:58

thinking. I want you to look at this as

8:00

a broad picture. You're about to enter a

8:02

learned profession. And that term

8:05

learned for a learned profession has

8:06

real meaning. Right? It's not just that

8:08

we're self-regulating and the like. It's

8:10

that it's a profession that requires

8:13

study. It requires learning. People are

8:16

coming to you for your learning and for

8:18

what you can think, what you can do for

8:21

them. And so, I want to push you a

8:22

little bit. So, this is going to be a

8:24

last lecture

8:25

about the law and specifically law that

8:29

you're going to be doing. And even more

8:30

specifically, I'm going to tell you what

8:33

I think is my what I'm going to tell you

8:35

what is my understanding of the law that

8:37

many of you are going to be doing and

8:39

why it matters and what I think is your

8:42

responsibility

8:43

to your clients, to the practice of law,

8:46

and to society

8:48

as a member of this learned profession.

8:51

And I think I narrow this into four

8:53

takeaways, four buckets. Let me tell you

8:55

what these four buckets what these four

8:57

buckets are going to be. So, one is not

9:00

a shock for people who took the class. I

9:01

want to say a little bit about the

9:02

relationship between public and private

9:04

law.

9:05

I want to say something about the

9:06

relationship between public and private

9:08

law. This is foundational. This is

9:10

definitional. This is something that

9:11

we're going to need to all have this

9:13

conversation, which is not really a

9:14

conversation, but it's the polite way to

9:16

say it. So, to have this conversation,

9:18

we need to have we need to have a common

9:20

vocabulary. All right. The second thing

9:22

is I want to say something about private

9:24

law and private ordering, which is the

9:26

law that most of you are going to be

9:28

doing.

9:29

And I want to tell you what I think it

9:31

is that you'll be doing and why it

9:33

matters. I want to say why it matters

9:35

cuz I I think that's where rule of law

9:38

really has power and I think that's

9:40

where it affects people on the ground.

9:43

So, the claim I'm going to be making is

9:44

this is retail law.

9:46

That private ordering, private law is

9:48

retail law. This is what not just what

9:50

most of you are going to be doing,

9:52

but this is what many of your clients

9:55

are coming to coming to you for in their

9:58

day-to-day life.

10:00

And I think it is unfairly denigrated in

10:03

elite law schools. I think that we don't

10:06

give enough attention and time to the

10:08

significance of private ordering. We do

10:10

not encourage you to go practice in this

10:13

area. We don't congratulate you for the

10:15

contributions you make in doing it, and

10:17

yet we send most of you out to do that.

10:19

And I think you should feel really good

10:20

about it. I think it's absolutely

10:21

essential. And I want to tell you why.

10:24

Okay, the third bucket which follows

10:27

from that is your role as lawyer. And I

10:30

mean this on the one hand as a

10:31

fiduciary.

10:33

So, as a member of this learned

10:34

profession to whom your client turns for

10:36

help.

10:37

But also in terms of your responsibility

10:40

for what the law is going forward. It's

10:42

a long tradition in these talks for

10:45

folks up here to be telling you about

10:46

your responsibility as a lawyer, but

10:49

it's usually in a public law frame and

10:51

at the end of the Republic as we know it

10:52

unless you do something or another.

10:55

So, I I I want to make a subtly

10:56

different claim. I want to say that your

10:58

role in um

11:01

uh policing the reform of private law is

11:05

absolutely essential to the development

11:07

law and even more so now for a variety

11:10

of developments in the nature of private

11:13

law, increased codification, right? In

11:16

the disfiguring of statutory

11:19

interpretation because of public law

11:21

battles and so on. So, I want to say a

11:23

little bit about the role you're going

11:24

to play and what that matters and that's

11:26

the

11:27

um

11:28

public service aspect of being a member

11:30

of a learned profession. There is a

11:32

public service aspect in the private law

11:35

domain also and that's the thing I want

11:36

to talk about. All right. So, then

11:38

there's number four. So, number four is

11:40

going to be to tie these three together.

11:42

I want to offer you a competing vision

11:45

of rule of law.

11:48

This is weirdly maybe a subversive

11:50

notion of rule of law. I want to suggest

11:54

rule of law as private ordering as

11:57

private law.

11:58

Right? So, instead of talking about rule

12:00

of law as in the organization of civil

12:02

society, people and the state, public

12:04

law. I want to talk about rule of law

12:06

from the standpoint of we order your

12:08

personal and professional affairs with

12:11

other people and we enforce it, we

12:13

resolve it, we make it work through law

12:16

rather than through baseball bats.

12:19

Right? I'm going to talk about that kind

12:20

of retail rule of retail rule of law.

12:24

And so, this is private law these forms

12:27

as

12:28

rule of law and then the role of you, of

12:31

lawyers, in making this all work.

12:34

Okay, I say this is So, let's let's go

12:36

through these first. So, first, what do

12:37

I mean when I say public law?

12:40

We say public law and private law. So,

12:42

public law

12:43

is constitutional law, administrative

12:45

law, criminal law, and the like. This is

12:48

the law that um

12:49

organizes the state and your

12:52

relationship to it. This is the

12:53

organization of the state, right? The

12:55

coercive power of the state and how this

12:58

how this is going to operate. So, this

13:00

is the front page news, right? This is

13:02

where everyone's waiting everyone waits

13:03

for Supreme Court decisions and writes

13:05

about that every year. This is what gets

13:07

these headlines. This is this notion

13:09

that that um

13:11

uh

13:11

this is what's going to this is why we

13:13

have a leg reg class. This is what if

13:15

you pick up the Harvard Law Review is

13:17

going to predominate its pages. This is

13:19

what draws people because you know, you

13:22

go to college, take political science,

13:24

the Constitution exerts this

13:25

gravitational pull on you. It's very

13:27

exciting. It's lots of fun. It's fine.

13:30

So, you and there's a long-standing

13:33

history in these talks of um

13:36

of

13:38

expressions of worry about the current

13:41

state of our civil society and whether

13:44

our public law institutions will be able

13:46

to abide given whatever crisis is at

13:48

hand at one of these lectures. And an

13:51

exhort and you are exhorted to engage

13:55

with these problems because the Republic

13:57

depends upon it and the whole order

14:00

matters. And I'm not saying that's not

14:02

that there's not something to it, but if

14:04

you go back and you look at some of

14:05

these lectures on YouTube, that's what

14:07

this is that's what this is about. It's

14:08

a critical moment in our constitutional

14:10

republic and whatever else.

14:13

But I also want to say that's not a new

14:15

sentiment. So, I just took a minute on

14:18

Google. I'm going to read you a line

14:20

here.

14:21

Um

14:22

it is not to be disguised that we have

14:23

arrived at a critical period of our

14:25

country's history. And that the capacity

14:27

of the people for maintaining a

14:29

constitutional constitutional government

14:31

is being subjected to a severer test

14:33

than ever before.

14:35

If, however, either the legislative or

14:37

executive disregard the limits upon

14:40

their power fixed by the people

14:42

what we suppose to be a constitutional

14:43

republic becomes the mere tyranny of the

14:45

majority.

14:47

Okay, that was from the inauguration

14:48

speech of a of a governor of California

14:50

in 1867.

14:52

You know, I'm just saying I'm not trying

14:54

to say that there aren't challenges

14:56

today.

14:58

I'm trying to say that the fact of

15:00

challenges to the public civil order is

15:03

not a new thing.

15:05

Right? It's a perennial thing and it is

15:07

an important thing and many people here

15:10

focus on that and want to talk about it

15:12

and I don't mean to say it's not

15:14

significant. I just want to say it's

15:16

kind of an evergreen

15:18

problem.

15:19

And it is

15:21

I think unfairly eclipsed a different

15:24

problem and that's the one I want to

15:26

draw to your attention. That is the

15:27

problem of confronted by private law.

15:30

That's the law of organizing your

15:32

relationships,

15:34

your relationships with other people,

15:36

with entities, with organizations.

15:39

Right? This is the law of of private

15:41

ordering, buying and selling things, of

15:43

jobs, of organizing business, of forming

15:46

a family.

15:47

Under the organizations. You understand?

15:49

This is retail law. This is your

15:51

day-to-day This is your day-to-day

15:54

life.

15:55

In truth, this is the law that most

15:57

people butt up with all the time. Right?

16:00

So, we start a little bit late. Why? Cuz

16:02

your Sweetgreen's delivery was a little

16:03

bit late. Okay, is this a breach of

16:05

contract? Are we going to deal with it?

16:06

Every everything that's going on is all

16:08

private ordering. Right? So, my nose on

16:10

the side, you know, back in my day when

16:12

I was in law school

16:14

we just they gave us deep-dish pizza,

16:16

which isn't even pizza, right? It's a

16:17

soufflé. Pizza everything. It's not

16:20

pizza. So, it's it's

16:22

always always pizza whatever. This is

16:24

kind of fancy. Anyway,

16:26

whatever, it's Harvard. Okay, so

16:28

when I say rule of law

16:30

right? When I say rule of law, you're

16:31

habitualized to think about like legal

16:34

checks on the executive.

16:36

Right? You're thinking about checks and

16:37

balances. You're thinking about due

16:39

process. You're thinking about

16:40

deprivation of life liberty, or

16:43

property, and and the like. But I want

16:45

to suggest something cruder and more

16:47

base. Right? Rule of law is

16:51

an organized, predictable apparatus for

16:55

dealing with breakdowns in private

16:58

ordering.

16:59

For being able to make private ordering

17:02

and understanding that this isn't that

17:04

it's not going to come apart. Do you

17:06

understand? This organization not by

17:08

force, by by rule of law. So, if I make

17:11

a deal to have the Sweetgreen delivered

17:13

and it's not, I'm not going to go with a

17:15

baseball bat and beat up the manager

17:16

there. That we have a way of resolving

17:18

this way of resolving this dispute.

17:21

Right? That as a there's an organized

17:23

way to invoke the coercive power of the

17:26

state to make sure the deal we struck,

17:29

the organization that we made works.

17:31

Okay, so let's take a step back. Let's

17:33

be political theorists

17:34

for a for just a a minute here. So,

17:37

what's our point here? What's the point

17:38

of organizing in civil society? Right?

17:41

So, all this time we talk about the the

17:43

constitutional republic is in danger and

17:44

will fall or you know, whatever. Why do

17:46

we care? Right? What's the point of the

17:48

constitutional

17:50

republic? Someone's like, I don't want

17:51

to do Locke and Rousseau and whatever.

17:53

That's that's fine. What I'm getting at

17:55

The point I want to ask is why are we

17:56

organizing that civil uh society? Right?

18:00

Why do we care? Why do we want this

18:02

this organized the state? Right? We

18:04

don't organize the state just to have

18:06

the state.

18:07

Right? We don't organize the state to

18:08

just have the state. The liberal and I

18:10

mean like John Stuart Mill liberal,

18:12

right? Like the um

18:14

small L liberal. A liberal society

18:17

the point of organizing the state is to

18:21

facilitate

18:22

private ordering.

18:24

Right? It's to allow individuals to

18:26

flourish and organize their affairs.

18:27

Right? So, the John Stuart Mill idea of

18:29

liberty is that my liberty is to the

18:32

extent to the tip of your nose and we

18:33

can organize I can organize around that.

18:35

So, what's the idea of civil society? To

18:37

police that. So, I got to erect this

18:39

constitutional republic in order to

18:41

what? In order to flourish.

18:43

But what does flourishing mean to me?

18:45

That doesn't matter. Right? That's my

18:47

problem to go out and organize. Public

18:50

law is the infrastructure that lets you

18:52

then create the system of private law.

18:55

In order to order your life. The port

18:57

The point of the order society of

18:59

liberty. Why is it so important you

19:01

don't deprive me of liberty without due

19:02

process? What is that liberty to go and

19:04

organize my life, to marry or not, to

19:07

build a business or not, to contract or

19:09

not, whatever. All of these uh things.

19:12

Any that is So, what if you think of the

19:14

civil

19:15

uh society as something more than that,

19:17

you're actually profoundly illiberal

19:20

in the classical sense. Because that's

19:22

what it that was the idea of individual

19:24

liberty. So, so that's our first point.

19:26

Right? Public law, private law, that's a

19:28

sketch of what this is about. On this

19:31

view, the project of private law is as

19:33

if not more important than the project

19:35

of public law. Right? That's what we're

19:37

trying to get to let people go and do

19:40

their thing.

19:42

Okay, so that brings us to our second

19:44

our second bucket. Which is the role of

19:47

private law. How does this work? What

19:49

does private law do for us in private

19:51

ordering?

19:52

So, let's take a step back and think

19:54

this probably would have been useful at

19:55

the start of law school. Let's kind of

19:57

think about what do I mean by this

19:58

landscape. We'll start with the big

19:59

three: property, contract, and tort.

20:02

Right, let's start with a first

20:03

approximate This isn't exactly correct,

20:04

but it's roughly uh true. Let's just

20:07

Let's just start with the basic baseline

20:09

that you have a property right in your

20:11

things and in your person. It's not

20:13

exactly true, but roughly speaking, you

20:16

have some kind of right to your body and

20:19

your and your things.

20:21

So, what's contract? That is consensual

20:24

transfer of those rights.

20:26

What is tort? That's non-consensual

20:29

transfer of those rights.

20:31

That's how it makes sense now, right?

20:32

So, we've got We have your rights,

20:34

that's property, and then we have a

20:35

contract, that's how you you give it

20:37

away for in a deal, or you've got uh

20:40

tort, where after the fact we're filling

20:43

in the deal cuz it was a non-consensual

20:45

transfer. So, what's everything else?

20:47

Everything else are specialized

20:49

applications of that. Corporation, LLC,

20:52

marriage, trust, um agency, partnership,

20:57

wills, everything. They're all

20:58

specialized applications of the general

21:01

of the of the of the uh big three.

21:04

They're all specialized forms, right?

21:07

They all reflect specialized special

21:09

instances of these uh problems.

21:11

Well, what happens when the private

21:12

ordering goes wrong, like really uh

21:15

wrong? Right, well, one, there's, you

21:16

know, criminal backup, or the other

21:18

there's bankruptcy, right? So, now we've

21:19

got some public backstops when this uh

21:23

uh when this goes wrong. But when you

21:24

think of it in this light, what's the

21:26

project? The project is facilitative,

21:29

not regulatory.

21:31

Do you understand the little role of the

21:32

lawyer now as like we This is old

21:34

expression, lawyer is transaction costs

21:36

uh engineer, lawyer to make this stuff

21:39

uh work. The idea behind these these

21:42

rules is facilitative, not regulatory.

21:45

It's a really big deal for reasons we'll

21:47

come to in a in a minute when we think

21:49

about cases and we think about drafting

21:51

statutes. The point I want to make now

21:53

is if that um

21:54

our idea is to allow people to order the

21:57

way they want unless we have some policy

21:59

reason not to let them do it.

22:01

Now, there may be good public policy

22:03

reasons why we're not going to let you

22:04

do certain forms of of of private

22:06

ordering. That's fine.

22:08

But outside those areas, we want to

22:10

facilitate. We want to make this work.

22:12

So, go back to the machinery of all of

22:15

these areas of law that you've uh

22:17

learned.

22:18

Right, there's generally speaking pieces

22:21

that are for third parties.

22:23

Third parties need to understand what's

22:24

going on, and there are pieces for the

22:26

people involved uh in the ordering.

22:28

Everything you've learned

22:30

and everything you'll be doing, I think,

22:32

will make more sense in that framework.

22:33

I'm going to give you examples.

22:35

Right, all is very common across private

22:37

law to see formation rules.

22:40

You know what I mean I say formation

22:41

rules? Like, how do you trigger this

22:43

form? So, let's go back to contract.

22:46

Think about contract for a minute.

22:47

Offer, acceptance, consideration. Think

22:50

of wills, writing, signature,

22:51

attestation. Agency, you you you

22:55

manifest an intent that someone else can

22:57

bind you, or more recently, the written

22:59

power of attorney because we want to be

23:00

able to prove this. If it's a LLC or

23:03

corporation that has limited liability,

23:05

you are filing with the state. All these

23:06

formation rules,

23:08

what are they about, right? We are We're

23:10

starting to see they're about how we

23:11

signal to our

23:13

our counterparty and third parties that

23:15

we've created a form, right? What we are

23:18

uh what we're doing.

23:20

And what do you see inside all of these

23:22

different areas of law? You see rules of

23:24

governance or construction or default

23:27

rules.

23:28

So, you see how there's a common thread

23:29

across them. What does that look like?

23:31

Let's go back to contract. Do you

23:33

remember Lady Lucy Duff Gordon? Right,

23:35

exclusive dealing, where these So, where

23:37

we read the contract to say, "Well,

23:39

there's an implied duty of good faith

23:41

and fair dealing."

23:43

So, this isn't just Cardozo saying,

23:44

"Well, I'm just going to make something

23:45

up." That's facilitating. Well, these

23:47

two people made a deal. I you're

23:49

exclusive You're my exclusive seller.

23:51

Well, the only way that deal makes sense

23:53

is if you're going to make reasonable

23:54

efforts to sell. So, I'm going to

23:56

facilitate What is the probable intent

23:58

of the people here? I'm not regulating

24:01

their deal. I'm facilitating what their

24:03

ordering is meant uh to be. In

24:05

partnership, corporation, LLC, you'll

24:09

see rules of profit sharing, of voting,

24:11

of of um of preventing strategic

24:14

behavior. Why? Well, these are all what

24:16

we think are what the parties would have

24:17

wanted. And to varying degrees, we let

24:20

the parties say something else. But if

24:22

they don't tell us something else, we

24:23

give them these terms. Why? Because

24:25

we've learned this is what they're

24:26

trying to do. There's this It's kind of

24:28

magical.

24:30

Right, there's something uh

24:31

astonishingly beautiful

24:33

and magical that there is on the shelf

24:36

all these forms that you do the right

24:39

formation signal, right? You check the

24:42

right boxes, you do offer acceptance

24:44

consideration, you manifest an intent to

24:47

with someone else to go into a business

24:49

for profit, that's partnership. You file

24:51

with the state, that's your corporation.

24:53

You manifest an intent and give

24:54

property, that's a trust that you Once

24:56

you do the formation rule, you

24:59

immediately get all of this stuff.

25:01

That's not regulatory, it's

25:02

facilitative. Trust fiduciary governance

25:05

and trustee removal. Or here's another

25:07

one. This is a little bit weird to think

25:09

of it this way. Marriage.

25:11

Marriage is a private ordering form.

25:13

Right, what hap- What's marriage? You go

25:14

through a formation ritual, right?

25:16

There's a filing with the state, and

25:19

then what do you get? You get a marital

25:20

property regime, that's your default.

25:23

You might like it or not, you can change

25:25

it if you don't. And you get dissolution

25:28

rules.

25:29

Right, you have rules for dissolution

25:31

during life, and you also get rules for

25:32

dissolution at death. You might not like

25:34

those rules, so you contract otherwise

25:36

if you don't. Right? So, right, this is

25:39

I This is a romantic vision, right? So,

25:41

like since I said my wife, "Hey, let's

25:43

have a long-term relational contract for

25:45

horizontal integration or a household

25:46

production function." Right, so under

25:47

This is This is private ordering. Now,

25:49

we'll have, you know, franchisees. It's

25:52

private Do you understand private

25:53

ordering? Okay. So, you don't have to

25:56

reinvent every one of these things every

25:59

time, right? The private law is

26:00

providing that. What's your job as the

26:02

lawyer? Your job as the lawyer is to

26:05

understand the objective of the client.

26:08

Figure out which one of those forms will

26:11

get them closest to the objective, and

26:14

then go

26:16

make it right. Change default rules that

26:18

don't fit. Do you see what I'm I'm

26:20

getting at here at first approximation.

26:22

That's not just a deal, right? That's

26:24

your transactional side, right? Transact

26:26

Many of you will be transactional

26:27

lawyers. What you're doing is you're

26:29

taking one of the forms, and you're

26:31

jamming what people are trying to

26:33

achieve into that form. So, every time

26:36

that LLC agreement doesn't have a clause

26:38

in it is a failure that is needed is a

26:41

failure of lawyering. Not to understand

26:44

that the form doesn't fit what they're

26:45

trying to do. Every time the marriage

26:48

comes asunder and it turns out those

26:49

rules aren't right, it's a failure.

26:51

Means that we should have we should that

26:53

we didn't de- change those default rules

26:55

to fit what the people uh wanted. Even

26:59

tort, like let's use Goldberg, now Dean

27:01

Goldberg, right? The Pa- his vision of

27:02

tort, the Palsgraf principle, right?

27:05

Tort is all about you have a right, and

27:07

if somebody takes that right, you're in

27:08

compensation. Non-consensual transfer.

27:11

Well, what's his idea of the Palsgraf

27:12

principle? That it has to be

27:14

foreseeable, right? If it's not

27:15

foreseeable, you're taking someone

27:17

else's right. Do you understand? That's

27:18

just we're filling in what the contract

27:20

would have been. We're giving you

27:21

compensation for what was uh taken.

27:25

So, on this view,

27:27

on this view, the private law is just a

27:29

set of forms. They're forms that to

27:30

varying degrees

27:32

uh

27:33

let you organize, and to varying

27:36

degrees, let you customize the

27:38

off-the-shelf form to get at what you're

27:40

trying uh to do. I understand there are

27:43

problematic edge cases, right? We do

27:44

them in class, that's what's fun, right?

27:46

So, in a contracts class, that's Hammer

27:48

and Sidway, that's promises not to

27:50

smoke. And in my class, that's, well, is

27:53

I'm going to give the manuscripts to the

27:55

Hebrew University in Jerusalem, is that

27:57

declaration of trust? Is that a gift?

27:59

Because a gift to the Those are

28:01

problems with formation.

28:04

Right, those are formation problems, and

28:05

you get a good lawyer involved, we'll

28:07

solve it, right? We'll find a form, and

28:10

we'll uh uh uh jam you uh jam you in.

28:13

Right? Okay. Another way of uh getting

28:15

at this cuz, you know, Passover is uh

28:17

coming. When I was in law school, one of

28:18

my law school classmates invited me to

28:20

her family's for a Passover. They had a

28:22

tradition. Their tradition is you had to

28:24

interrupt the Seder at some point and

28:26

make some unique contribution. So, what

28:29

I did was when they did the four

28:30

children, the four questions, you know,

28:32

they had the different questions, I

28:33

chimed in as, "I got a fifth child, a

28:35

Chicago-trained uh child." The

28:37

Chicago-trained child asks, "Isn't

28:40

Weren't the 10 plagues just a really a

28:41

failure in private ordering and

28:43

enforcement mechanisms that if we had

28:45

had a enforcement regime, we wouldn't

28:47

have need to like kill all the firstborn

28:49

in whatever uh uh Do you understand?

28:50

Like, that's what hap- It's funny, but

28:52

also,

28:54

that's what happens we don't have

28:56

enforceable private ordering forms. You

28:59

have to slaughter people's children to

29:01

get them to comply. I mean, that maybe

29:02

hit him with a baseball bat. You This is

29:04

an ordered society is about making

29:07

ordering uh uh work. Okay, so that takes

29:10

us to the third point, third point I

29:12

want to talk about, which is your role.

29:14

So, I've already talked about your roles

29:16

as fiduciary for your client, but also,

29:20

as a member of a learned profession,

29:22

meaning obligation to society. And I

29:25

want to suggest that obligation is not,

29:26

you know, defending the republic from

29:28

falling, you know, whatever. I I mean,

29:30

that's important.

29:32

But also, making this stuff work so

29:35

within the society, we can flourish.

29:37

Each person can flourish however they

29:38

want. So, we've talked about one of

29:40

those,

29:41

which is being alert to the objective of

29:44

the client. That means listening.

29:46

Do you understand? That means like a

29:47

good lawyer is a counselor Uh at law.

29:50

You're listening. You're getting what

29:51

they're trying to achieve and helping

29:54

the client get the right form and

29:56

customizing the form. Good transactional

29:59

work involves listening

30:01

with an empathetic ear, really getting

30:04

the objective, counseling the client on

30:06

the ways to get there, and making that

30:08

form fit the circumstances. That's one

30:11

we've been emphasizing. I want to talk

30:12

about two others.

30:14

One is

30:16

when

30:17

dealing with private ordering gone awry.

30:21

So now we're talking about litigation

30:22

and lawyering and in court and also

30:24

judging.

30:25

And the third is going to be your

30:27

responsibility for making the law for

30:29

making law work.

30:31

So here's what I'm going to do. I want

30:32

to go back to this new case, a favorite

30:34

it's a favorite case. I just started at

30:36

teaching this. But we're going to do

30:37

this and some of you have seen it, but

30:38

we're going to do it differently now cuz

30:40

we're a different prism. Remember this

30:41

guy? So this is Beck, right? This is the

30:44

Beck case from Montana. For those who

30:46

don't know what happened here, so this

30:48

guy Beck is in his truck and I takes his

30:51

iPhone, he makes a recording, right?

30:54

Takes his iPhone, he makes a recording.

30:57

Give all my possessions. If anything

30:59

happens to me whatsoever, I give all my

31:02

possessions, everything to Jason Beck,

31:06

my brother.

31:08

I don't think I'll find out that night

31:10

get one thing.

31:12

Not one thing.

31:15

Okay. So

31:17

we understand what's going on here? Now,

31:19

he's trying to he's trying to order his

31:21

affairs.

31:22

Do you understand what I So here we have

31:24

a member of our civil society who is

31:26

exercising that right that we want

31:28

everybody in our society to have to

31:30

order his affairs, right? This This is I

31:33

is manifesting testamentary intent. I

31:35

don't Nobody's going to just I don't

31:36

think everybody does Anybody disagree

31:37

here? He's This guy is telling us what

31:39

he wants to happen to his property when

31:42

he dies. Now, if he came to you once

31:45

you're licensed or he came to me, I am

31:47

licensed. If

31:49

if it came to you, came to me it comes

31:51

to me, what would we do? Well, I know

31:53

the forms, right? I'm like, "Oh, we're

31:54

going to tell her this. We can do a

31:55

revocable trust. We can do a will." We I

31:57

got lots of forms. And I can make it fit

32:00

and I can do this right and I can make

32:01

sure Christina Fontenot doesn't see a

32:03

penny. No problem. Good to go, right?

32:06

But he didn't.

32:08

Right? Didn't have a a lawyer there,

32:10

right? So there was no transactional

32:12

lawyer involved. So where are we now?

32:14

Well, the lawyer's involved after he

32:16

dies when his brother brings this to

32:18

court. When his brother brings this to

32:20

court and wants to a probate it. So now

32:23

remember I said we have three spots. One

32:24

is the client comes to you, we're going

32:26

to help them order. Second is it gets

32:28

busted and now we're in court. So what

32:31

can we do when we're in court? Here the

32:33

claim I want to make

32:35

is that our grand debates about

32:37

constitutional structure, about public

32:39

law have disfigured

32:41

our reasoning in private law cases.

32:44

Right? We are we're bringing the wrong

32:46

We're bringing an inappropriate

32:47

methodology to these cases. So here's

32:49

the statute at issue. Here's the statute

32:52

in this case.

32:54

A document or a writing added upon a

32:56

document

32:58

is probatable if there's clear and

33:00

convincing evidence the decedent

33:02

intended the document to be his will.

33:05

Everybody agrees this guy meant for the

33:07

for the for the video to be a will.

33:09

Right? The court says so in the

33:10

decision. This this reflects the

33:12

testamentary intent. Nobody's doubting

33:13

that he wants this video to be his will.

33:16

It's a statutory interpretation case. Is

33:18

the recording a document? Is the

33:21

recording a document or a

33:24

writing upon a document?

33:26

That's the question.

33:28

Okay, that's that's fine. So let's do

33:30

the internal and then the external.

33:31

Here's how the court resolved the case.

33:33

The court says well, the statute is

33:34

clear and unambiguous.

33:37

It's always a warning, right? When we

33:38

say a statute is clear and unambiguous.

33:40

Statute is clear and unambiguous. It

33:42

doesn't that the the video is not.

33:45

Okay, why? Well, it says document or a

33:48

writing upon a document. So to be a

33:50

document, you must be capable of having

33:53

writing put upon it.

33:55

There's no It's Well, there's a

33:56

recording. You can't put a writing upon

33:58

that. So writing has to A document must

34:01

be something that has writing on it.

34:03

A document is not a document if it

34:05

doesn't have a writing upon it. So this

34:07

is not that, says the court. That's one

34:10

argument. Secondly, the court says also

34:12

we see that our that there's this

34:14

uniform uniform electronic

34:16

wills act, which our state has not

34:19

adopted.

34:20

But it says to be an electronic will, it

34:23

has to be readable as text. And this is

34:25

not readable as text. So that reinforced

34:27

our conclusion that's definitely not.

34:29

Okay, that's how the court answers this

34:30

question. Do you see how the the mode of

34:32

reasoning here?

34:33

This is about limiting power.

34:36

Do you see this very public law way of

34:37

thinking? It's the claim I want to make.

34:39

This about protecting, about limited

34:41

power, about well, I'm concerned about

34:44

the coercive power of the state. None of

34:45

that's an issue here, right?

34:47

This is a facilitative statute.

34:50

This is when I have overwhelming

34:51

evidence that the thing was meant to be

34:53

a will, it should be a will.

34:55

Now, I'm not saying that it's clear that

34:57

the right that the video is in or the

34:58

video is not in. I'm just saying there's

35:00

nothing like that there. It's a right?

35:03

The claim I'm making is the

35:04

preoccupation with public law

35:07

obscured from the court what to do. And

35:09

the court wants to think that it's super

35:11

textualist, right? A writing or document

35:14

of a writing upon a document and how

35:15

it's reasoning. And then of course it

35:17

makes this totally non-textual turn to

35:19

start reading a statute that was never

35:20

even adopted.

35:22

That was never even adopted, right?

35:24

Okay. What would be another way to think

35:26

about the Let's do another way to think

35:28

of this. So here's the one One of you, I

35:30

don't know if it was in this room.

35:31

Somebody in their exam wrote this.

35:34

Well, if you have a statute that says a

35:36

farm animal or a person riding upon a

35:39

farm animal doesn't make chickens no

35:41

longer farm animals cuz you can't ride a

35:43

chicken.

35:44

Right? A Suppose you have a statute that

35:46

says farm animals or people riding upon

35:49

farm animals. Well, you can't be a farm

35:51

animal then if people don't ride you.

35:53

But isn't that exactly what this court

35:55

just said?

35:56

Right? If chickens are still farm

35:57

animals under the under this student

35:59

statute, then maybe riding then

36:01

documents can be documents even if they

36:03

can't have writings upon them.

36:05

I know actually. I I know that the

36:09

drafter of this statute did not mean

36:11

document or writing upon a document to

36:13

signal that document means only things

36:16

writing about it cuz it was my friend

36:18

Larry Waggoner at the University of

36:19

Michigan who wrote it. And what he was

36:21

thinking about were all these wills

36:23

where people scratched something out and

36:25

they wrote something else in by hand.

36:27

That's what he thought.

36:29

And if you were willing to approach this

36:31

case from a different framework instead

36:33

of the disfiguring of public law,

36:36

instead if you came at this as this a

36:38

facilitative statute, it's actually a

36:40

uniform act that has a history, where

36:41

did it come from, maybe it decided

36:43

differently, maybe not.

36:45

It's actually very I mean a hard

36:47

question whether videos fall under the

36:49

statute. But that would be the

36:50

conversation you would be having.

36:53

I don't mean to say to be clear, I don't

36:56

mean to And let me just say one other

36:57

thing. It's I don't even think the

36:58

court's right. I mean we know this,

37:00

right? That a video has like you're all

37:01

on TikTok. You all know videos can have

37:03

writing upon them.

37:04

You understand like if the guy just

37:05

turned on closed captioning, then we

37:07

would probate it?

37:09

That's really weird, right? That's we

37:11

hold today that our legislature decided

37:14

that if you turn closed captioning on,

37:16

video will is good, but if you don't,

37:17

video will is not.

37:19

When it when it adopted this uniform act

37:22

that was drafted in late '80s.

37:25

Like I'm I I'm I was there in the late I

37:27

mean I remember the late '80s.

37:29

We had camcorders like this. Do you know

37:31

what I mean? There was no

37:33

closed caption. It's not how that

37:35

worked. Okay. So here's another What So

37:37

what could we do to What could we do to

37:40

What could we do to to try to defend the

37:42

decision? Here's another way to think of

37:43

the decision.

37:44

What you might have said was you might

37:47

say, "You know what? This statute is

37:49

from 1990. It was drafted by the Uniform

37:51

Law Commission in the 1980s. Nobody in

37:54

that in this period would have thought a

37:55

video would have been acceptable. But

37:57

today lots of people are recording all

38:00

the time.

38:01

They are going around making

38:02

documentaries,

38:05

right? They are recording what's

38:07

happening and our statute seems out of

38:10

date, but this is a big giant public

38:12

policy question whether or not we're

38:13

comfortable facilitating, whether this

38:15

is a form that we want to recognize,

38:18

whether we think the social costs of

38:20

enforcing these forms are worth it, and

38:22

that's too big for me as a judge. I'm

38:23

kicking that to the legislature." That

38:25

would be a totally reasonable way to go,

38:28

right? That's fine. It's not what the

38:29

court's saying.

38:31

The court's decision is all internal,

38:33

right? It's all pretend. It's all well,

38:35

the statute clearly answers the

38:37

question.

38:39

Maybe not. Maybe it does, maybe it

38:41

doesn't. Maybe this is a different Maybe

38:42

what I'm describing is really what it's

38:43

about. Okay, so here's a joke that Dick

38:45

Posner told me when I was clerking. So

38:48

it's like ever so slightly off color,

38:50

but only ever so slightly, so it's okay.

38:52

So I Here we go, right? Okay. Guy's

38:54

walking down the street

38:56

and he comes to this storefront and

38:58

there

38:59

flowers and art and pictures and

39:01

beautiful things in the in the window.

39:04

And the thing says, you know, it's

39:06

Moshi's Mohel Services. A mohel is

39:08

someone who does the bris, who does the

39:10

circumcision in Jewish tradition.

39:13

So guy goes in the store and he says,

39:14

"W- Why you're a mohel? Yes, you do the

39:17

brises, you do the circumcisions?"

39:19

That's right. "Well, why do you have

39:20

flowers and pictures and all this stuff

39:22

in your in your window front?" He says,

39:23

"Well, what would you have me put

39:24

there?"

39:26

Okay. What

39:28

And now you understand about Judge

39:29

Posner's

39:30

view of opinions. So the

39:33

What do you want the court to say?

39:35

Right? Like

39:37

this is a hard problem whether or not to

39:39

recognize video wills, right? But I

39:41

don't think you're helping anybody by

39:43

doing this kind of this this mendacious

39:46

statutory interpretation. That's not

39:48

even true on its own terms. It's not

39:50

even true uh on its own terms.

39:53

So, okay. Well, if you do this word if

39:55

you're going where I want to go, which

39:56

is either you're going to say, "Look,

39:57

this is a facilitative statute and uh I

40:00

could read it both ways. I don't see any

40:02

policy reason not to let someone do

40:04

this. So, I'm going to let them do this

40:05

till legislature stops me."

40:07

Cuz it's a facilitative statute. I don't

40:09

see any Okay, that's what I would do if

40:11

I was the judge. You don't have to. You

40:12

can go the other way. You might want to

40:14

say, "Well, I'm going to kick it to the

40:15

legislature." Which brings me to the

40:16

last point, the last thing I want to

40:18

say, which is "Well, that's fine."

40:21

Right? That's fine. We're going to kick

40:22

it to the legislature.

40:24

But then without us, without you,

40:26

without the learned profession doing law

40:29

reform, I think it's a hopelessly naive

40:31

understanding of the political

40:32

structure.

40:34

Never in the history of the world has

40:37

anyone run for governor or state

40:39

legislature saying, "Vote for me because

40:42

I'm going to update the law of wills to

40:44

account for new electronic stuff."

40:47

"Put me in Congress because I'm going to

40:49

fix revocation on divorce in ERISA."

40:52

"Vote for me because I've observed that

40:54

the spousal forced share, which is part

40:57

of the default rules of the marriage

40:58

form, no longer aligns with the rise of

41:01

non-probate."

41:02

Do you know who knows that? We.

41:05

The members of the learned profession

41:07

who who help people with the forms and

41:11

walk them through. We see where the

41:13

problems are with the forms and when we

41:15

can't draft around them.

41:17

Or we have people who don't know to

41:20

draft around them.

41:22

This is not just about responsibility

41:24

for keeping the law updated, but it's

41:25

also about legitimacy.

41:28

Right? There's a horizontal equity point

41:30

here. And I don't just mean about wealth

41:32

or access to lawyers. So, here's a text

41:36

message a student of mine got some years

41:37

ago. People you've seen this before.

41:39

Getting on some flights with dad, we

41:41

realize we don't have a will.

41:44

If anything happens and it won't, mom

41:46

lies.

41:48

Things bad things can and do happen.

41:50

Please be uh

41:51

and please be executor and divide all

41:54

things equal. Don't know if this would

41:55

count, but it's the best I can do.

41:59

Love you and miss your face. So, there's

42:02

your authenticity cuz that's a mom. Only

42:05

I miss your face.

42:07

It's fine, right?

42:09

Uh

42:10

This one satisfies the statute.

42:14

Because it's a writing.

42:16

So, video, no go. This one does.

42:21

What is the principal distinction

42:24

between those cases?

42:26

Right? That's just I'm going to claim

42:28

it's I want to argue it's an arbitrary

42:30

distinction. It's a horizontal

42:32

inequality. Like Like efforts at private

42:36

ordering are being treated unlike.

42:39

Right? It's an arbitrary way. And so, we

42:42

want to we want to fix that. So, that

42:43

brings me to the last thing I want to

42:45

the last thing I want to talk about,

42:47

which is

42:48

this rule of law. So, the you're all the

42:51

time you're going to hear at graduation

42:53

and these other last lecture all the

42:54

time you're going to hear about rule of

42:55

law is endangered and you have to

42:57

protect the constitutional order and on

42:59

and on and on. It's fine. I mean I I

43:01

mean it's not wrong that we need to have

43:03

that. But that's that's just the

43:05

predicate

43:07

to what matters to people on a retail

43:10

level. What matters to mom here is if

43:14

that plane crashes, he's the executor is

43:16

the executor and things are split

43:18

evenly.

43:19

Right? That's what she's looking for.

43:21

So, what do you do as I want to suggest

43:23

that the the further obligation is to

43:29

get these things fixed.

43:31

Right? There's another conception of

43:33

public interest public service and that

43:36

is the private law reform apparatus.

43:39

There's a lot of versions of it. There's

43:40

the American Law Institute and the

43:42

restatements. There's Uniform Law

43:43

Commission and Uniform Acts. But there's

43:46

your local bar associations and the

43:47

various committees that bring the

43:49

statutes to the legislature.

43:51

So, how do these little tweaks happen?

43:53

How does the partnership law of whatever

43:55

state, the LLC law, the divorce law, the

43:58

marriage law, the trust law, the wills

44:00

law, the contract law, how do these

44:02

things get changed? It's ALI, it's ULC,

44:04

it's local bar groups going to the local

44:07

legislature saying, "We have this

44:09

problem we need to fix it." Well, who

44:10

opposes? Nobody.

44:12

Why aren't we done yet? Nobody knows.

44:14

This is just what we need to make things

44:15

work. You see where I what the the the

44:17

point I want to I'm trying to make here?

44:20

Okay. So, here's here's an example.

44:23

Right? Here's an example. So, people

44:24

already know My father died a year and a

44:26

half ago. He lives in he lived in New

44:27

York.

44:28

I'm the fiduciary of everything. I live

44:30

in Massachusetts. I have a brother. He

44:32

lives in Florida.

44:34

Okay, you understand? That's a conflicts

44:36

of law problem.

44:38

It's a conflicts of law problem. I got a

44:39

will and a trust from New York. I got an

44:42

a fiduciary in Massachusetts. I got a

44:44

beneficiary in Florida. It's a conflicts

44:47

of law problem. Okay. It turns out that

44:49

conflicts of law and trusts is is all

44:52

derived from the second restatement

44:53

written by Austin Wakeman Scott, you

44:55

know, of

44:56

Harvard Law School.

44:57

And none of it works anymore.

45:00

Right? None of it works anymore because

45:01

it's all based on uh testamentary trust.

45:04

It's based on territorial contacts.

45:08

None of this works anymore.

45:09

And nobody knows, right? Course continue

45:12

to follow the second restatement we're

45:14

getting increasingly bizarre decisions.

45:16

The American Law Institute and Uniform

45:17

Law Commission are doing new projects to

45:19

have a new restatement or new uniform

45:20

act. And they're completely rewritten to

45:23

reflect the realities of on the ground

45:26

practice now. Right? So, I'm the chair

45:28

of the drafting committee for the

45:29

Uniform Act. Kim Roosevelt University of

45:31

Pennsylvania is the reporter for the for

45:33

the restatement. Right? And so, we're

45:35

coordinating. So, why? What's the

45:37

purpose of that? Well, because like it's

45:39

not so weird to see people die with

45:42

family in another state.

45:44

It's not so weird anymore. So, okay. Why

45:47

is that important to me? It's important

45:49

to me because I want to see that right.

45:52

Want to see that right cuz that's a

45:53

thing people are trying to do. And so,

45:55

the claim, the thing I'm trying to

45:57

suggest I'm mindful that I got to keep

45:59

this

46:00

tight cuz people got to get to their

46:01

classes and if we can open the door to

46:02

questions.

46:03

The claim I'm trying to make is that

46:05

this matters to people on a retail

46:07

level. I'm not denying the preservation

46:10

of the constitutional order and checks

46:12

and balances and due process. That's

46:15

important, obviously. It's predicate.

46:17

I'm suggesting that on a retail level

46:21

a as a equally if not more corrosive

46:26

to a democratic republic rule of law is

46:30

failure of private law to achieve the

46:33

private ordering that people are

46:35

seeking. When they when someone thinks

46:38

they've got a deal and they don't, they

46:40

think they've got a business arrangement

46:41

and they don't, they think there's

46:43

private sharing and they don't, they

46:44

think they have a trust and they don't,

46:46

they think they've made a will so

46:47

Christina Fontnew doesn't get one penny

46:50

and they don't.

46:51

When that happens, it is corrosive to

46:55

rule of law as much so as checks and

46:58

balances whatever else cuz that's not

47:00

what people are watching. People are

47:02

trying to make payroll, they're trying

47:03

to make they're trying to buy groceries,

47:05

they're trying to make rent. And when

47:07

private law fails them, the law has

47:10

failed them.

47:11

So, your role is a as a lawyer to these

47:14

clients is to draft it right. Understand

47:17

what they're doing and make the forms

47:19

right. And as the lawyer in the

47:21

litigation, show the court the way. And

47:23

as the judge, find the way. And as the

47:25

legislator to fix it. And as the lawyer

47:28

to lobby. And if you do this and you

47:31

choose as a path private law and that

47:33

kind of practice, understand that you

47:36

are as if not more important to the

47:39

preservation of rule of law as anybody

47:42

else.

47:44

I was going to say something insulting

47:45

of a colleague. We're not going to do

47:46

that. It's being recorded. As anything

47:49

else

47:50

as anything I'm not going to do it.

47:52

Anything so hard. As anything else

47:56

as any It is absolutely is just as

47:59

essential to preservation of rule of

48:01

law. Okay, so I know people got 1:30. I

48:03

can stay and talk if people want to ask

48:04

questions or whatever, but I appreciate

48:06

you giving me this last chance and I

48:07

thank you for your patience and the

48:09

indulgence.

48:10

>> [applause]

48:19

[applause]

48:29

>> If anybody wants to ask Professor Oh,

48:32

raise your hand. I'll bring the mic.

48:33

Perfect.

48:38

Oh, in this in this conversation what

48:39

has changed in 10 years ago?

48:41

Um so, relative to the So, so I I I

48:44

think there are

48:45

two or three things that

48:47

that are different. So, one, when I uh

48:50

10 years ago, I told the story of how I

48:52

got into trusts and estates.

48:54

And including like drafting my mother's

48:56

will, which I'd never to talked about

48:58

that publicly before. My mother died

49:00

when I was 17 and so the reason I got

49:02

into trusts and estates. So, that story

49:03

is out there. I'm happy to repeat it

49:05

again if people want to hear it, but

49:06

like that was one a piece.

49:08

The other was um I uh

49:11

um

49:12

I did not feel I did not have the sense

49:14

10 years ago of um

49:18

uh

49:20

of the eclipsing of the importance of

49:22

private law in quite the same way I'm

49:24

feeling it now.

49:26

Right? So, as a turn And I also don't

49:28

think that I understood

49:31

uh I didn't have this feel for um

49:34

the role of the lawyer in these three

49:36

pieces. I mean, I talked about it, but I

49:37

didn't have it organized in that way.

49:38

So, the big difference is one is this

49:40

this eclipsing and the other is I didn't

49:42

like it's very it's customary in these

49:43

talks to tell your own story. I didn't

49:45

do that here. I'm happy to talk now if

49:47

you want to hear it, do it again, but

49:48

that those are the that's the quick

49:50

answer.

49:55

Does anyone other anyone else have any

49:57

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