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Well, good afternoon everyone. It is so

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amazing to see so many familiar faces,

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especially coming out of such an amazing

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barristers this past Saturday. Thank you

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all so much for being here. My name is

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Gabby Mestre. I'm one of your class of

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2026 class marshals and it is a distinct

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honor to kick off our last lecture

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series today and introduce the brilliant

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Professor Robert Sitkoff. Professor

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Robert Sitkoff is the Austin Wakeman

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Scott Professor of Law and the John L.

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Gray Professor of Law. He's an expert in

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many many fields. Trust me, if I told

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you all of his accomplishments, I would

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be the one giving the lecture today and

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not him.

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Um, but he specializes in wills, trusts,

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estates, and fiduciary administration.

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Professor Sitkoff clerked for then Chief

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Judge Richard Posner of the United

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States Court of Appeals for the Seventh

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Circuit. He taught at both NYU and

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Northwestern before joining the Harvard

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Law School faculty in 2007, where he

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became the youngest professor to receive

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a chair in the history of the school.

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Professor Sitkoff has been published in

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leading scholarly journals such as the

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Yale Law Journal, the Stanford Law

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Review, the Columbia Law Review, the

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Journal of Law and Economics, and many

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many others. Professor Sitkoff is a

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co-author of Wills, Trusts, and Estates,

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the most popular American coursebook on

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Trusts and Estates, and he is a

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co-editor of the Oxford Handbook of

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Fiduciary Law.

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Professor Sitkoff's research has been

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featured in the New York Times, Wall

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Street Journal, and Financial Times,

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amongst other media.

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He's an active participant in Trusts and

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Estates law reform. He serves on the

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Uniform Law Commission as a commissioner

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for Massachusetts. He previously served

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as a member of several other drafting

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committees for Uniform Trusts and

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Estates Acts, including as chair of the

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drafting committee for the Uniform

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Directed Trust Act. And on a personal

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note, I took Professor Sitkoff's Trusts

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and Estates class last year and found it

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to be one of the best classes I've taken

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here at the law school. So, now, without

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further ado, I know none of you are here

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to hear me speak. Please help me in

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welcoming Professor Robert Sitkoff.

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>> [applause]

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>> Thank you.

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That's very kind. Thank you.

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Uh, well, thank you. That's a

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That's a very generous and kind um

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uh, introduction. Um

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So, let me say something about uh, what

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what you just said and then I'll get

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into some of the things I wanted to say.

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So, um, from time to time people make

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that comment about uh, the youngest

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

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the true story what actually happened.

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So, I was a visitor here in uh, spring

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of um

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uh, spring of 2007.

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Elena Kagan was the dean at the time.

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Uh, it was a good time to visit Harvard.

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It was a period of promiscuous hiring,

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

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anyway, the faculty had a meeting and

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voted my offer. Elena came to the office

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and she we talked for a while and then

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she got up to leave. You know by now

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Colombo? Like she turned at the door,

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she turned around, "Oh, one more thing.

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

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

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

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amazing. That's really early in career.

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

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early to have a uh, chair. Oh my

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

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donor restricted it to a specialist in

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Trusts and Estates, what else am I

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supposed to do with it?"

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So, that's actually what what what

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

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you for inviting me to do this. It's

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

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reasons I moved here now

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about 20 years ago was for you, for the

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students. Your curiosity and energy

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and engagement, uh, hunger to grow and

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learn has been exciting and really the

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

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better teacher, a better scholar, better

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lawyer. You have over the years,

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including the last 2 years, held me

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accountable, forced me to think harder

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and deeper about uh, issues. A little

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bit later in this talk, I'm going to

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quote a line that one of you wrote in

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your exam and I've lifted and put in the

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

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line. But also, you have been um,

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unfailingly generous. As some of you

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know, the past year or two has been a

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little bit rough

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for me. My father died, I got a

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concussion, each of my three children

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had significant health issues, one

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needed a surgery. It's been a bumpy

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couple of years and throughout that

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whole period, you've all been

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People taking the classes in particular

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have been

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uncommonly generous and accommodating my

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bumpiness and not, you know, there was

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the one class I had to leave partway

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through to go lie down because of my

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head and whatever. And so thank you. So,

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

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last

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

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not the, you know, hope for the best,

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

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

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going to be the last. People are

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laughing. I mean that for real. Hope for

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the best, but plan for the worst.

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

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going to be the last lecture, but I do

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suspect that for many of you, this will

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be my last chance to indoctrinate.

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Right? The last chance to tell you some

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things that I think are important that I

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think will be are important to me for

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you to understand as you embark on being

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a lawyer, as you embark on the journey

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of the rest of your life. And I I hope

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it's not the last chance. I hope you

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will stay in in touch and reach out and

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email. Email's easy, right?

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I'm in Hauser or whatever, but I

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understand for many this will be.

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So, I I puzzled for a little while about

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what what could I tell you? You know,

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what what would I what would what would

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I want to do in this last lecture?

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So, the problem is I have a pretty

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narrow range of knowledge.

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I

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I

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I I know a lot about Trusts and Estates

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and fiduciary law. I also know about

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classic Star Trek, coaching Little

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League, and the Yankees,

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making pancakes. None of this seemed

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like really appropriate. So, I went back

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and I gave one of these some years ago.

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Was it 10 years ago? I looked at that

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video and I I thought, "What have I

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learned since then?" And first thing

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came to mind was how to do colonoscopy

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preps.

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But that seemed like not also what we

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should do uh

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

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uh

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

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

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Uh,

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

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up the outline, dug up my notes from

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that. And what I was struck as I looked

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at those notes from all those years ago

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when I did one of these talks, what I

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was really struck by

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was the very different perspective, my

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very different understanding of what I

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told that class those years ago.

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

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and that's reflects 10 years of growth,

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right? 10 years of learning, 10 more

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years of experience than you, 10 more

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years of just life.

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

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going to talk about a variety several of

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the same things I talked about then, but

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from a refreshed lens with what is the

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current my current state of development.

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And in doing that, what I'm trying to

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model for you is the never-ending

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growth, right? The idea that you will

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continue to learn and develop as a

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lawyer, as a person, as a child, a

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sibling, a partner, whatever. The idea

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that you need to keep learning. You need

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to keep growing. You want to keep

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reevaluating what you think you know

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and look at these things afresh. So,

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

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

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some things that I wish I knew. I wish

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that I knew when I was you. Right? When

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I was getting ready to graduate and go

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out. So, I want to tell you four things

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that I didn't really understand then and

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I think in truth, I didn't even really

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understand 10 years ago. I mean, I

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thought I did and I talked about them in

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that talk, but I understand them

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differently now and I'm sure in 10

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years, I'll understand them even

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differently then. But I want to talk to

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you about what I think I understand

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now.

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You don't have to accept my vision. You

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don't have to accept these things that

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

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offer this as a kind of as a idea for

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you to take in and then absorb and do

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with what you wish. Right? Take this

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into the full body of your development

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as a person, as a lawyer, whatever else.

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But mostly, what I want to do is get you

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thinking. I want you to look at this as

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a broad picture. You're about to enter a

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learned profession. And that term

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learned for a learned profession has

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real meaning. Right? It's not just that

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

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that it's a profession that requires

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study. It requires learning. People are

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coming to you for your learning and for

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what you can think, what you can do for

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them. And so, I want to push you a

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little bit. So, this is going to be a

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last lecture

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about the law and specifically law that

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you're going to be doing. And even more

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specifically, I'm going to tell you what

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

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what is my understanding of the law that

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many of you are going to be doing and

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why it matters and what I think is your

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responsibility

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to your clients, to the practice of law,

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and to society

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as a member of this learned profession.

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And I think I narrow this into four

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takeaways, four buckets. Let me tell you

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what these four buckets what these four

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buckets are going to be. So, one is not

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a shock for people who took the class. I

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want to say a little bit about the

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relationship between public and private

267
00:09:04,639 --> 00:09:06,519
law.

268
00:09:05,639 --> 00:09:08,720
I want to say something about the

269
00:09:06,519 --> 00:09:10,279
relationship between public and private

270
00:09:08,720 --> 00:09:11,720
law. This is foundational. This is

271
00:09:10,279 --> 00:09:13,360
definitional. This is something that

272
00:09:11,720 --> 00:09:14,800
we're going to need to all have this

273
00:09:13,360 --> 00:09:16,759
conversation, which is not really a

274
00:09:14,799 --> 00:09:18,959
conversation, but it's the polite way to

275
00:09:16,759 --> 00:09:20,600
say it. So, to have this conversation,

276
00:09:18,960 --> 00:09:22,280
we need to have we need to have a common

277
00:09:20,600 --> 00:09:24,440
vocabulary. All right. The second thing

278
00:09:22,279 --> 00:09:26,679
is I want to say something about private

279
00:09:24,440 --> 00:09:28,240
law and private ordering, which is the

280
00:09:26,679 --> 00:09:29,239
law that most of you are going to be

281
00:09:28,240 --> 00:09:31,039
doing.

282
00:09:29,240 --> 00:09:33,039
And I want to tell you what I think it

283
00:09:31,039 --> 00:09:35,559
is that you'll be doing and why it

284
00:09:33,039 --> 00:09:38,319
matters. I want to say why it matters

285
00:09:35,559 --> 00:09:40,479
cuz I I think that's where rule of law

286
00:09:38,320 --> 00:09:43,640
really has power and I think that's

287
00:09:40,480 --> 00:09:44,960
where it affects people on the ground.

288
00:09:43,639 --> 00:09:46,759
So, the claim I'm going to be making is

289
00:09:44,960 --> 00:09:48,680
this is retail law.

290
00:09:46,759 --> 00:09:50,799
That private ordering, private law is

291
00:09:48,679 --> 00:09:52,679
retail law. This is what not just what

292
00:09:50,799 --> 00:09:55,000
most of you are going to be doing,

293
00:09:52,679 --> 00:09:58,439
but this is what many of your clients

294
00:09:55,000 --> 00:10:00,360
are coming to coming to you for in their

295
00:09:58,440 --> 00:10:03,200
day-to-day life.

296
00:10:00,360 --> 00:10:06,080
And I think it is unfairly denigrated in

297
00:10:03,200 --> 00:10:08,200
elite law schools. I think that we don't

298
00:10:06,080 --> 00:10:10,639
give enough attention and time to the

299
00:10:08,200 --> 00:10:13,160
significance of private ordering. We do

300
00:10:10,639 --> 00:10:15,000
not encourage you to go practice in this

301
00:10:13,159 --> 00:10:17,039
area. We don't congratulate you for the

302
00:10:15,000 --> 00:10:19,320
contributions you make in doing it, and

303
00:10:17,039 --> 00:10:20,519
yet we send most of you out to do that.

304
00:10:19,320 --> 00:10:21,600
And I think you should feel really good

305
00:10:20,519 --> 00:10:24,439
about it. I think it's absolutely

306
00:10:21,600 --> 00:10:27,240
essential. And I want to tell you why.

307
00:10:24,440 --> 00:10:30,360
Okay, the third bucket which follows

308
00:10:27,240 --> 00:10:31,720
from that is your role as lawyer. And I

309
00:10:30,360 --> 00:10:33,240
mean this on the one hand as a

310
00:10:31,720 --> 00:10:34,600
fiduciary.

311
00:10:33,240 --> 00:10:36,440
So, as a member of this learned

312
00:10:34,600 --> 00:10:37,480
profession to whom your client turns for

313
00:10:36,440 --> 00:10:40,080
help.

314
00:10:37,480 --> 00:10:42,200
But also in terms of your responsibility

315
00:10:40,080 --> 00:10:45,320
for what the law is going forward. It's

316
00:10:42,200 --> 00:10:46,879
a long tradition in these talks for

317
00:10:45,320 --> 00:10:49,520
folks up here to be telling you about

318
00:10:46,879 --> 00:10:51,240
your responsibility as a lawyer, but

319
00:10:49,519 --> 00:10:52,879
it's usually in a public law frame and

320
00:10:51,240 --> 00:10:55,000
at the end of the Republic as we know it

321
00:10:52,879 --> 00:10:56,639
unless you do something or another.

322
00:10:55,000 --> 00:10:58,600
So, I I I want to make a subtly

323
00:10:56,639 --> 00:11:01,240
different claim. I want to say that your

324
00:10:58,600 --> 00:11:05,279
role in um

325
00:11:01,240 --> 00:11:07,200
uh policing the reform of private law is

326
00:11:05,279 --> 00:11:10,879
absolutely essential to the development

327
00:11:07,200 --> 00:11:13,480
law and even more so now for a variety

328
00:11:10,879 --> 00:11:16,360
of developments in the nature of private

329
00:11:13,480 --> 00:11:19,080
law, increased codification, right? In

330
00:11:16,360 --> 00:11:21,600
the disfiguring of statutory

331
00:11:19,080 --> 00:11:23,080
interpretation because of public law

332
00:11:21,600 --> 00:11:24,320
battles and so on. So, I want to say a

333
00:11:23,080 --> 00:11:26,400
little bit about the role you're going

334
00:11:24,320 --> 00:11:27,320
to play and what that matters and that's

335
00:11:26,399 --> 00:11:28,000
the

336
00:11:27,320 --> 00:11:30,720
um

337
00:11:28,000 --> 00:11:32,879
public service aspect of being a member

338
00:11:30,720 --> 00:11:35,040
of a learned profession. There is a

339
00:11:32,879 --> 00:11:36,759
public service aspect in the private law

340
00:11:35,039 --> 00:11:38,319
domain also and that's the thing I want

341
00:11:36,759 --> 00:11:40,480
to talk about. All right. So, then

342
00:11:38,320 --> 00:11:42,480
there's number four. So, number four is

343
00:11:40,480 --> 00:11:45,440
going to be to tie these three together.

344
00:11:42,480 --> 00:11:48,080
I want to offer you a competing vision

345
00:11:45,440 --> 00:11:50,640
of rule of law.

346
00:11:48,080 --> 00:11:54,560
This is weirdly maybe a subversive

347
00:11:50,639 --> 00:11:57,480
notion of rule of law. I want to suggest

348
00:11:54,559 --> 00:11:58,799
rule of law as private ordering as

349
00:11:57,480 --> 00:12:00,200
private law.

350
00:11:58,799 --> 00:12:02,159
Right? So, instead of talking about rule

351
00:12:00,200 --> 00:12:04,280
of law as in the organization of civil

352
00:12:02,159 --> 00:12:06,079
society, people and the state, public

353
00:12:04,279 --> 00:12:08,838
law. I want to talk about rule of law

354
00:12:06,080 --> 00:12:11,120
from the standpoint of we order your

355
00:12:08,839 --> 00:12:13,560
personal and professional affairs with

356
00:12:11,120 --> 00:12:16,679
other people and we enforce it, we

357
00:12:13,559 --> 00:12:19,159
resolve it, we make it work through law

358
00:12:16,679 --> 00:12:20,279
rather than through baseball bats.

359
00:12:19,159 --> 00:12:24,799
Right? I'm going to talk about that kind

360
00:12:20,279 --> 00:12:27,559
of retail rule of retail rule of law.

361
00:12:24,799 --> 00:12:28,919
And so, this is private law these forms

362
00:12:27,559 --> 00:12:31,079
as

363
00:12:28,919 --> 00:12:34,199
rule of law and then the role of you, of

364
00:12:31,080 --> 00:12:36,240
lawyers, in making this all work.

365
00:12:34,200 --> 00:12:37,680
Okay, I say this is So, let's let's go

366
00:12:36,240 --> 00:12:40,000
through these first. So, first, what do

367
00:12:37,679 --> 00:12:42,120
I mean when I say public law?

368
00:12:40,000 --> 00:12:43,600
We say public law and private law. So,

369
00:12:42,120 --> 00:12:45,360
public law

370
00:12:43,600 --> 00:12:48,040
is constitutional law, administrative

371
00:12:45,360 --> 00:12:49,759
law, criminal law, and the like. This is

372
00:12:48,039 --> 00:12:52,439
the law that um

373
00:12:49,759 --> 00:12:53,600
organizes the state and your

374
00:12:52,440 --> 00:12:55,720
relationship to it. This is the

375
00:12:53,600 --> 00:12:58,320
organization of the state, right? The

376
00:12:55,720 --> 00:13:00,080
coercive power of the state and how this

377
00:12:58,320 --> 00:13:02,400
how this is going to operate. So, this

378
00:13:00,080 --> 00:13:03,800
is the front page news, right? This is

379
00:13:02,399 --> 00:13:05,199
where everyone's waiting everyone waits

380
00:13:03,799 --> 00:13:07,879
for Supreme Court decisions and writes

381
00:13:05,200 --> 00:13:09,520
about that every year. This is what gets

382
00:13:07,879 --> 00:13:11,240
these headlines. This is this notion

383
00:13:09,519 --> 00:13:11,960
that that um

384
00:13:11,240 --> 00:13:13,440
uh

385
00:13:11,960 --> 00:13:15,360
this is what's going to this is why we

386
00:13:13,440 --> 00:13:17,000
have a leg reg class. This is what if

387
00:13:15,360 --> 00:13:19,919
you pick up the Harvard Law Review is

388
00:13:17,000 --> 00:13:22,279
going to predominate its pages. This is

389
00:13:19,919 --> 00:13:24,240
what draws people because you know, you

390
00:13:22,279 --> 00:13:25,720
go to college, take political science,

391
00:13:24,240 --> 00:13:27,919
the Constitution exerts this

392
00:13:25,720 --> 00:13:30,320
gravitational pull on you. It's very

393
00:13:27,919 --> 00:13:33,439
exciting. It's lots of fun. It's fine.

394
00:13:30,320 --> 00:13:36,800
So, you and there's a long-standing

395
00:13:33,440 --> 00:13:38,080
history in these talks of um

396
00:13:36,799 --> 00:13:41,599
of

397
00:13:38,080 --> 00:13:44,000
expressions of worry about the current

398
00:13:41,600 --> 00:13:46,360
state of our civil society and whether

399
00:13:44,000 --> 00:13:48,839
our public law institutions will be able

400
00:13:46,360 --> 00:13:51,879
to abide given whatever crisis is at

401
00:13:48,839 --> 00:13:55,040
hand at one of these lectures. And an

402
00:13:51,879 --> 00:13:57,559
exhort and you are exhorted to engage

403
00:13:55,039 --> 00:14:00,039
with these problems because the Republic

404
00:13:57,559 --> 00:14:02,639
depends upon it and the whole order

405
00:14:00,039 --> 00:14:04,159
matters. And I'm not saying that's not

406
00:14:02,639 --> 00:14:05,838
that there's not something to it, but if

407
00:14:04,159 --> 00:14:07,279
you go back and you look at some of

408
00:14:05,839 --> 00:14:08,880
these lectures on YouTube, that's what

409
00:14:07,279 --> 00:14:10,279
this is that's what this is about. It's

410
00:14:08,879 --> 00:14:13,159
a critical moment in our constitutional

411
00:14:10,279 --> 00:14:15,958
republic and whatever else.

412
00:14:13,159 --> 00:14:18,199
But I also want to say that's not a new

413
00:14:15,958 --> 00:14:20,119
sentiment. So, I just took a minute on

414
00:14:18,200 --> 00:14:21,280
Google. I'm going to read you a line

415
00:14:20,120 --> 00:14:22,078
here.

416
00:14:21,279 --> 00:14:23,679
Um

417
00:14:22,078 --> 00:14:25,439
it is not to be disguised that we have

418
00:14:23,679 --> 00:14:27,879
arrived at a critical period of our

419
00:14:25,440 --> 00:14:29,120
country's history. And that the capacity

420
00:14:27,879 --> 00:14:31,600
of the people for maintaining a

421
00:14:29,120 --> 00:14:33,839
constitutional constitutional government

422
00:14:31,600 --> 00:14:35,560
is being subjected to a severer test

423
00:14:33,839 --> 00:14:37,560
than ever before.

424
00:14:35,559 --> 00:14:40,078
If, however, either the legislative or

425
00:14:37,559 --> 00:14:42,359
executive disregard the limits upon

426
00:14:40,078 --> 00:14:43,838
their power fixed by the people

427
00:14:42,360 --> 00:14:45,600
what we suppose to be a constitutional

428
00:14:43,839 --> 00:14:47,079
republic becomes the mere tyranny of the

429
00:14:45,600 --> 00:14:48,440
majority.

430
00:14:47,078 --> 00:14:50,439
Okay, that was from the inauguration

431
00:14:48,440 --> 00:14:52,079
speech of a of a governor of California

432
00:14:50,440 --> 00:14:54,320
in 1867.

433
00:14:52,078 --> 00:14:56,958
You know, I'm just saying I'm not trying

434
00:14:54,320 --> 00:14:58,240
to say that there aren't challenges

435
00:14:56,958 --> 00:15:00,399
today.

436
00:14:58,240 --> 00:15:03,560
I'm trying to say that the fact of

437
00:15:00,399 --> 00:15:05,480
challenges to the public civil order is

438
00:15:03,559 --> 00:15:07,559
not a new thing.

439
00:15:05,480 --> 00:15:10,639
Right? It's a perennial thing and it is

440
00:15:07,559 --> 00:15:12,599
an important thing and many people here

441
00:15:10,639 --> 00:15:14,078
focus on that and want to talk about it

442
00:15:12,600 --> 00:15:16,360
and I don't mean to say it's not

443
00:15:14,078 --> 00:15:18,559
significant. I just want to say it's

444
00:15:16,360 --> 00:15:19,879
kind of an evergreen

445
00:15:18,559 --> 00:15:21,719
problem.

446
00:15:19,879 --> 00:15:24,559
And it is

447
00:15:21,720 --> 00:15:26,000
I think unfairly eclipsed a different

448
00:15:24,559 --> 00:15:27,838
problem and that's the one I want to

449
00:15:26,000 --> 00:15:30,799
draw to your attention. That is the

450
00:15:27,839 --> 00:15:32,680
problem of confronted by private law.

451
00:15:30,799 --> 00:15:34,240
That's the law of organizing your

452
00:15:32,679 --> 00:15:36,120
relationships,

453
00:15:34,240 --> 00:15:39,079
your relationships with other people,

454
00:15:36,120 --> 00:15:41,320
with entities, with organizations.

455
00:15:39,078 --> 00:15:43,519
Right? This is the law of of private

456
00:15:41,320 --> 00:15:46,079
ordering, buying and selling things, of

457
00:15:43,519 --> 00:15:47,679
jobs, of organizing business, of forming

458
00:15:46,078 --> 00:15:49,439
a family.

459
00:15:47,679 --> 00:15:51,039
Under the organizations. You understand?

460
00:15:49,440 --> 00:15:54,040
This is retail law. This is your

461
00:15:51,039 --> 00:15:55,199
day-to-day This is your day-to-day

462
00:15:54,039 --> 00:15:57,319
life.

463
00:15:55,200 --> 00:16:00,079
In truth, this is the law that most

464
00:15:57,320 --> 00:16:02,160
people butt up with all the time. Right?

465
00:16:00,078 --> 00:16:03,719
So, we start a little bit late. Why? Cuz

466
00:16:02,159 --> 00:16:05,120
your Sweetgreen's delivery was a little

467
00:16:03,720 --> 00:16:06,560
bit late. Okay, is this a breach of

468
00:16:05,120 --> 00:16:08,879
contract? Are we going to deal with it?

469
00:16:06,559 --> 00:16:10,838
Every everything that's going on is all

470
00:16:08,879 --> 00:16:12,919
private ordering. Right? So, my nose on

471
00:16:10,839 --> 00:16:14,200
the side, you know, back in my day when

472
00:16:12,919 --> 00:16:16,319
I was in law school

473
00:16:14,200 --> 00:16:17,520
we just they gave us deep-dish pizza,

474
00:16:16,320 --> 00:16:20,040
which isn't even pizza, right? It's a

475
00:16:17,519 --> 00:16:22,120
soufflé. Pizza everything. It's not

476
00:16:20,039 --> 00:16:24,120
pizza. So, it's it's

477
00:16:22,120 --> 00:16:26,200
always always pizza whatever. This is

478
00:16:24,120 --> 00:16:28,200
kind of fancy. Anyway,

479
00:16:26,200 --> 00:16:30,360
whatever, it's Harvard. Okay, so

480
00:16:28,200 --> 00:16:31,959
when I say rule of law

481
00:16:30,360 --> 00:16:34,519
right? When I say rule of law, you're

482
00:16:31,958 --> 00:16:36,559
habitualized to think about like legal

483
00:16:34,519 --> 00:16:37,720
checks on the executive.

484
00:16:36,559 --> 00:16:39,439
Right? You're thinking about checks and

485
00:16:37,720 --> 00:16:40,959
balances. You're thinking about due

486
00:16:39,440 --> 00:16:43,120
process. You're thinking about

487
00:16:40,958 --> 00:16:45,639
deprivation of life liberty, or

488
00:16:43,120 --> 00:16:47,879
property, and and the like. But I want

489
00:16:45,639 --> 00:16:51,600
to suggest something cruder and more

490
00:16:47,879 --> 00:16:55,799
base. Right? Rule of law is

491
00:16:51,600 --> 00:16:58,839
an organized, predictable apparatus for

492
00:16:55,799 --> 00:16:59,879
dealing with breakdowns in private

493
00:16:58,839 --> 00:17:02,480
ordering.

494
00:16:59,879 --> 00:17:04,359
For being able to make private ordering

495
00:17:02,480 --> 00:17:06,640
and understanding that this isn't that

496
00:17:04,359 --> 00:17:08,279
it's not going to come apart. Do you

497
00:17:06,640 --> 00:17:11,199
understand? This organization not by

498
00:17:08,279 --> 00:17:13,519
force, by by rule of law. So, if I make

499
00:17:11,199 --> 00:17:15,199
a deal to have the Sweetgreen delivered

500
00:17:13,519 --> 00:17:16,720
and it's not, I'm not going to go with a

501
00:17:15,199 --> 00:17:18,920
baseball bat and beat up the manager

502
00:17:16,720 --> 00:17:21,838
there. That we have a way of resolving

503
00:17:18,920 --> 00:17:23,560
this way of resolving this dispute.

504
00:17:21,838 --> 00:17:26,240
Right? That as a there's an organized

505
00:17:23,559 --> 00:17:29,000
way to invoke the coercive power of the

506
00:17:26,240 --> 00:17:31,759
state to make sure the deal we struck,

507
00:17:29,000 --> 00:17:33,039
the organization that we made works.

508
00:17:31,759 --> 00:17:34,839
Okay, so let's take a step back. Let's

509
00:17:33,039 --> 00:17:37,119
be political theorists

510
00:17:34,839 --> 00:17:38,599
for a for just a a minute here. So,

511
00:17:37,119 --> 00:17:41,199
what's our point here? What's the point

512
00:17:38,599 --> 00:17:43,079
of organizing in civil society? Right?

513
00:17:41,200 --> 00:17:44,840
So, all this time we talk about the the

514
00:17:43,079 --> 00:17:46,960
constitutional republic is in danger and

515
00:17:44,839 --> 00:17:48,678
will fall or you know, whatever. Why do

516
00:17:46,960 --> 00:17:50,120
we care? Right? What's the point of the

517
00:17:48,679 --> 00:17:51,720
constitutional

518
00:17:50,119 --> 00:17:53,199
republic? Someone's like, I don't want

519
00:17:51,720 --> 00:17:55,400
to do Locke and Rousseau and whatever.

520
00:17:53,200 --> 00:17:56,920
That's that's fine. What I'm getting at

521
00:17:55,400 --> 00:18:00,080
The point I want to ask is why are we

522
00:17:56,920 --> 00:18:02,720
organizing that civil uh society? Right?

523
00:18:00,079 --> 00:18:04,678
Why do we care? Why do we want this

524
00:18:02,720 --> 00:18:06,079
this organized the state? Right? We

525
00:18:04,679 --> 00:18:07,560
don't organize the state just to have

526
00:18:06,079 --> 00:18:08,799
the state.

527
00:18:07,559 --> 00:18:10,678
Right? We don't organize the state to

528
00:18:08,799 --> 00:18:12,480
just have the state. The liberal and I

529
00:18:10,679 --> 00:18:14,320
mean like John Stuart Mill liberal,

530
00:18:12,480 --> 00:18:17,559
right? Like the um

531
00:18:14,319 --> 00:18:21,000
small L liberal. A liberal society

532
00:18:17,559 --> 00:18:22,599
the point of organizing the state is to

533
00:18:21,000 --> 00:18:24,039
facilitate

534
00:18:22,599 --> 00:18:26,079
private ordering.

535
00:18:24,039 --> 00:18:27,879
Right? It's to allow individuals to

536
00:18:26,079 --> 00:18:29,559
flourish and organize their affairs.

537
00:18:27,880 --> 00:18:32,159
Right? So, the John Stuart Mill idea of

538
00:18:29,559 --> 00:18:33,599
liberty is that my liberty is to the

539
00:18:32,159 --> 00:18:35,800
extent to the tip of your nose and we

540
00:18:33,599 --> 00:18:37,519
can organize I can organize around that.

541
00:18:35,799 --> 00:18:39,960
So, what's the idea of civil society? To

542
00:18:37,519 --> 00:18:41,599
police that. So, I got to erect this

543
00:18:39,960 --> 00:18:43,720
constitutional republic in order to

544
00:18:41,599 --> 00:18:45,039
what? In order to flourish.

545
00:18:43,720 --> 00:18:47,600
But what does flourishing mean to me?

546
00:18:45,039 --> 00:18:50,559
That doesn't matter. Right? That's my

547
00:18:47,599 --> 00:18:52,678
problem to go out and organize. Public

548
00:18:50,559 --> 00:18:55,079
law is the infrastructure that lets you

549
00:18:52,679 --> 00:18:57,040
then create the system of private law.

550
00:18:55,079 --> 00:18:59,039
In order to order your life. The port

551
00:18:57,039 --> 00:19:01,000
The point of the order society of

552
00:18:59,039 --> 00:19:02,440
liberty. Why is it so important you

553
00:19:01,000 --> 00:19:04,119
don't deprive me of liberty without due

554
00:19:02,440 --> 00:19:07,400
process? What is that liberty to go and

555
00:19:04,119 --> 00:19:09,559
organize my life, to marry or not, to

556
00:19:07,400 --> 00:19:12,200
build a business or not, to contract or

557
00:19:09,559 --> 00:19:14,359
not, whatever. All of these uh things.

558
00:19:12,200 --> 00:19:15,480
Any that is So, what if you think of the

559
00:19:14,359 --> 00:19:17,599
civil

560
00:19:15,480 --> 00:19:20,000
uh society as something more than that,

561
00:19:17,599 --> 00:19:22,918
you're actually profoundly illiberal

562
00:19:20,000 --> 00:19:24,799
in the classical sense. Because that's

563
00:19:22,919 --> 00:19:26,560
what it that was the idea of individual

564
00:19:24,799 --> 00:19:28,079
liberty. So, so that's our first point.

565
00:19:26,559 --> 00:19:31,279
Right? Public law, private law, that's a

566
00:19:28,079 --> 00:19:33,639
sketch of what this is about. On this

567
00:19:31,279 --> 00:19:35,799
view, the project of private law is as

568
00:19:33,640 --> 00:19:37,640
if not more important than the project

569
00:19:35,799 --> 00:19:40,359
of public law. Right? That's what we're

570
00:19:37,640 --> 00:19:42,280
trying to get to let people go and do

571
00:19:40,359 --> 00:19:44,799
their thing.

572
00:19:42,279 --> 00:19:47,918
Okay, so that brings us to our second

573
00:19:44,799 --> 00:19:49,559
our second bucket. Which is the role of

574
00:19:47,919 --> 00:19:51,520
private law. How does this work? What

575
00:19:49,559 --> 00:19:52,559
does private law do for us in private

576
00:19:51,519 --> 00:19:54,319
ordering?

577
00:19:52,559 --> 00:19:55,599
So, let's take a step back and think

578
00:19:54,319 --> 00:19:57,079
this probably would have been useful at

579
00:19:55,599 --> 00:19:58,199
the start of law school. Let's kind of

580
00:19:57,079 --> 00:19:59,439
think about what do I mean by this

581
00:19:58,200 --> 00:20:02,240
landscape. We'll start with the big

582
00:19:59,440 --> 00:20:03,279
three: property, contract, and tort.

583
00:20:02,240 --> 00:20:04,960
Right, let's start with a first

584
00:20:03,279 --> 00:20:07,200
approximate This isn't exactly correct,

585
00:20:04,960 --> 00:20:09,240
but it's roughly uh true. Let's just

586
00:20:07,200 --> 00:20:11,480
Let's just start with the basic baseline

587
00:20:09,240 --> 00:20:13,680
that you have a property right in your

588
00:20:11,480 --> 00:20:16,079
things and in your person. It's not

589
00:20:13,680 --> 00:20:19,080
exactly true, but roughly speaking, you

590
00:20:16,079 --> 00:20:21,319
have some kind of right to your body and

591
00:20:19,079 --> 00:20:24,480
your and your things.

592
00:20:21,319 --> 00:20:26,639
So, what's contract? That is consensual

593
00:20:24,480 --> 00:20:29,519
transfer of those rights.

594
00:20:26,640 --> 00:20:31,680
What is tort? That's non-consensual

595
00:20:29,519 --> 00:20:32,839
transfer of those rights.

596
00:20:31,680 --> 00:20:34,240
That's how it makes sense now, right?

597
00:20:32,839 --> 00:20:35,639
So, we've got We have your rights,

598
00:20:34,240 --> 00:20:37,960
that's property, and then we have a

599
00:20:35,640 --> 00:20:40,440
contract, that's how you you give it

600
00:20:37,960 --> 00:20:43,039
away for in a deal, or you've got uh

601
00:20:40,440 --> 00:20:45,080
tort, where after the fact we're filling

602
00:20:43,039 --> 00:20:47,759
in the deal cuz it was a non-consensual

603
00:20:45,079 --> 00:20:49,559
transfer. So, what's everything else?

604
00:20:47,759 --> 00:20:52,319
Everything else are specialized

605
00:20:49,559 --> 00:20:57,000
applications of that. Corporation, LLC,

606
00:20:52,319 --> 00:20:58,559
marriage, trust, um agency, partnership,

607
00:20:57,000 --> 00:21:01,559
wills, everything. They're all

608
00:20:58,559 --> 00:21:04,679
specialized applications of the general

609
00:21:01,559 --> 00:21:07,000
of the of the of the uh big three.

610
00:21:04,680 --> 00:21:09,000
They're all specialized forms, right?

611
00:21:07,000 --> 00:21:11,839
They all reflect specialized special

612
00:21:09,000 --> 00:21:12,880
instances of these uh problems.

613
00:21:11,839 --> 00:21:15,000
Well, what happens when the private

614
00:21:12,880 --> 00:21:16,920
ordering goes wrong, like really uh

615
00:21:15,000 --> 00:21:18,400
wrong? Right, well, one, there's, you

616
00:21:16,920 --> 00:21:19,880
know, criminal backup, or the other

617
00:21:18,400 --> 00:21:23,000
there's bankruptcy, right? So, now we've

618
00:21:19,880 --> 00:21:24,800
got some public backstops when this uh

619
00:21:23,000 --> 00:21:26,720
uh when this goes wrong. But when you

620
00:21:24,799 --> 00:21:29,279
think of it in this light, what's the

621
00:21:26,720 --> 00:21:31,319
project? The project is facilitative,

622
00:21:29,279 --> 00:21:32,559
not regulatory.

623
00:21:31,319 --> 00:21:34,279
Do you understand the little role of the

624
00:21:32,559 --> 00:21:36,960
lawyer now as like we This is old

625
00:21:34,279 --> 00:21:39,480
expression, lawyer is transaction costs

626
00:21:36,960 --> 00:21:42,160
uh engineer, lawyer to make this stuff

627
00:21:39,480 --> 00:21:45,880
uh work. The idea behind these these

628
00:21:42,160 --> 00:21:47,240
rules is facilitative, not regulatory.

629
00:21:45,880 --> 00:21:49,280
It's a really big deal for reasons we'll

630
00:21:47,240 --> 00:21:51,079
come to in a in a minute when we think

631
00:21:49,279 --> 00:21:53,200
about cases and we think about drafting

632
00:21:51,079 --> 00:21:54,639
statutes. The point I want to make now

633
00:21:53,200 --> 00:21:57,759
is if that um

634
00:21:54,640 --> 00:21:59,600
our idea is to allow people to order the

635
00:21:57,759 --> 00:22:01,640
way they want unless we have some policy

636
00:21:59,599 --> 00:22:03,039
reason not to let them do it.

637
00:22:01,640 --> 00:22:04,200
Now, there may be good public policy

638
00:22:03,039 --> 00:22:06,480
reasons why we're not going to let you

639
00:22:04,200 --> 00:22:08,360
do certain forms of of of private

640
00:22:06,480 --> 00:22:10,360
ordering. That's fine.

641
00:22:08,359 --> 00:22:12,359
But outside those areas, we want to

642
00:22:10,359 --> 00:22:15,000
facilitate. We want to make this work.

643
00:22:12,359 --> 00:22:17,119
So, go back to the machinery of all of

644
00:22:15,000 --> 00:22:18,240
these areas of law that you've uh

645
00:22:17,119 --> 00:22:21,279
learned.

646
00:22:18,240 --> 00:22:23,519
Right, there's generally speaking pieces

647
00:22:21,279 --> 00:22:24,759
that are for third parties.

648
00:22:23,519 --> 00:22:26,039
Third parties need to understand what's

649
00:22:24,759 --> 00:22:28,160
going on, and there are pieces for the

650
00:22:26,039 --> 00:22:30,159
people involved uh in the ordering.

651
00:22:28,160 --> 00:22:32,000
Everything you've learned

652
00:22:30,160 --> 00:22:33,560
and everything you'll be doing, I think,

653
00:22:32,000 --> 00:22:35,599
will make more sense in that framework.

654
00:22:33,559 --> 00:22:37,960
I'm going to give you examples.

655
00:22:35,599 --> 00:22:40,639
Right, all is very common across private

656
00:22:37,960 --> 00:22:41,640
law to see formation rules.

657
00:22:40,640 --> 00:22:43,920
You know what I mean I say formation

658
00:22:41,640 --> 00:22:46,280
rules? Like, how do you trigger this

659
00:22:43,920 --> 00:22:47,279
form? So, let's go back to contract.

660
00:22:46,279 --> 00:22:50,279
Think about contract for a minute.

661
00:22:47,279 --> 00:22:51,879
Offer, acceptance, consideration. Think

662
00:22:50,279 --> 00:22:55,200
of wills, writing, signature,

663
00:22:51,880 --> 00:22:57,080
attestation. Agency, you you you

664
00:22:55,200 --> 00:22:59,559
manifest an intent that someone else can

665
00:22:57,079 --> 00:23:00,879
bind you, or more recently, the written

666
00:22:59,559 --> 00:23:03,559
power of attorney because we want to be

667
00:23:00,880 --> 00:23:05,480
able to prove this. If it's a LLC or

668
00:23:03,559 --> 00:23:06,919
corporation that has limited liability,

669
00:23:05,480 --> 00:23:08,559
you are filing with the state. All these

670
00:23:06,920 --> 00:23:10,039
formation rules,

671
00:23:08,559 --> 00:23:11,639
what are they about, right? We are We're

672
00:23:10,039 --> 00:23:13,599
starting to see they're about how we

673
00:23:11,640 --> 00:23:15,679
signal to our

674
00:23:13,599 --> 00:23:18,519
our counterparty and third parties that

675
00:23:15,679 --> 00:23:20,000
we've created a form, right? What we are

676
00:23:18,519 --> 00:23:22,200
uh what we're doing.

677
00:23:20,000 --> 00:23:24,319
And what do you see inside all of these

678
00:23:22,200 --> 00:23:27,360
different areas of law? You see rules of

679
00:23:24,319 --> 00:23:28,439
governance or construction or default

680
00:23:27,359 --> 00:23:29,879
rules.

681
00:23:28,440 --> 00:23:31,360
So, you see how there's a common thread

682
00:23:29,880 --> 00:23:33,240
across them. What does that look like?

683
00:23:31,359 --> 00:23:35,119
Let's go back to contract. Do you

684
00:23:33,240 --> 00:23:37,839
remember Lady Lucy Duff Gordon? Right,

685
00:23:35,119 --> 00:23:39,959
exclusive dealing, where these So, where

686
00:23:37,839 --> 00:23:41,639
we read the contract to say, "Well,

687
00:23:39,960 --> 00:23:43,079
there's an implied duty of good faith

688
00:23:41,640 --> 00:23:44,679
and fair dealing."

689
00:23:43,079 --> 00:23:45,879
So, this isn't just Cardozo saying,

690
00:23:44,679 --> 00:23:47,840
"Well, I'm just going to make something

691
00:23:45,880 --> 00:23:49,480
up." That's facilitating. Well, these

692
00:23:47,839 --> 00:23:51,759
two people made a deal. I you're

693
00:23:49,480 --> 00:23:53,640
exclusive You're my exclusive seller.

694
00:23:51,759 --> 00:23:54,960
Well, the only way that deal makes sense

695
00:23:53,640 --> 00:23:56,679
is if you're going to make reasonable

696
00:23:54,960 --> 00:23:58,880
efforts to sell. So, I'm going to

697
00:23:56,679 --> 00:24:01,200
facilitate What is the probable intent

698
00:23:58,880 --> 00:24:03,280
of the people here? I'm not regulating

699
00:24:01,200 --> 00:24:05,880
their deal. I'm facilitating what their

700
00:24:03,279 --> 00:24:09,000
ordering is meant uh to be. In

701
00:24:05,880 --> 00:24:11,960
partnership, corporation, LLC, you'll

702
00:24:09,000 --> 00:24:14,200
see rules of profit sharing, of voting,

703
00:24:11,960 --> 00:24:16,240
of of um of preventing strategic

704
00:24:14,200 --> 00:24:17,960
behavior. Why? Well, these are all what

705
00:24:16,240 --> 00:24:20,359
we think are what the parties would have

706
00:24:17,960 --> 00:24:22,480
wanted. And to varying degrees, we let

707
00:24:20,359 --> 00:24:23,839
the parties say something else. But if

708
00:24:22,480 --> 00:24:25,480
they don't tell us something else, we

709
00:24:23,839 --> 00:24:26,919
give them these terms. Why? Because

710
00:24:25,480 --> 00:24:28,799
we've learned this is what they're

711
00:24:26,920 --> 00:24:30,120
trying to do. There's this It's kind of

712
00:24:28,799 --> 00:24:31,399
magical.

713
00:24:30,119 --> 00:24:33,919
Right, there's something uh

714
00:24:31,400 --> 00:24:36,720
astonishingly beautiful

715
00:24:33,920 --> 00:24:39,840
and magical that there is on the shelf

716
00:24:36,720 --> 00:24:42,279
all these forms that you do the right

717
00:24:39,839 --> 00:24:44,678
formation signal, right? You check the

718
00:24:42,279 --> 00:24:47,399
right boxes, you do offer acceptance

719
00:24:44,679 --> 00:24:49,280
consideration, you manifest an intent to

720
00:24:47,400 --> 00:24:51,440
with someone else to go into a business

721
00:24:49,279 --> 00:24:53,440
for profit, that's partnership. You file

722
00:24:51,440 --> 00:24:54,880
with the state, that's your corporation.

723
00:24:53,440 --> 00:24:56,600
You manifest an intent and give

724
00:24:54,880 --> 00:24:59,160
property, that's a trust that you Once

725
00:24:56,599 --> 00:25:01,439
you do the formation rule, you

726
00:24:59,160 --> 00:25:02,679
immediately get all of this stuff.

727
00:25:01,440 --> 00:25:05,360
That's not regulatory, it's

728
00:25:02,679 --> 00:25:07,600
facilitative. Trust fiduciary governance

729
00:25:05,359 --> 00:25:09,079
and trustee removal. Or here's another

730
00:25:07,599 --> 00:25:11,359
one. This is a little bit weird to think

731
00:25:09,079 --> 00:25:13,639
of it this way. Marriage.

732
00:25:11,359 --> 00:25:14,799
Marriage is a private ordering form.

733
00:25:13,640 --> 00:25:16,880
Right, what hap- What's marriage? You go

734
00:25:14,799 --> 00:25:19,319
through a formation ritual, right?

735
00:25:16,880 --> 00:25:20,920
There's a filing with the state, and

736
00:25:19,319 --> 00:25:23,519
then what do you get? You get a marital

737
00:25:20,920 --> 00:25:25,200
property regime, that's your default.

738
00:25:23,519 --> 00:25:28,039
You might like it or not, you can change

739
00:25:25,200 --> 00:25:29,519
it if you don't. And you get dissolution

740
00:25:28,039 --> 00:25:31,159
rules.

741
00:25:29,519 --> 00:25:32,720
Right, you have rules for dissolution

742
00:25:31,160 --> 00:25:34,720
during life, and you also get rules for

743
00:25:32,720 --> 00:25:36,600
dissolution at death. You might not like

744
00:25:34,720 --> 00:25:39,720
those rules, so you contract otherwise

745
00:25:36,599 --> 00:25:41,599
if you don't. Right? So, right, this is

746
00:25:39,720 --> 00:25:43,400
I This is a romantic vision, right? So,

747
00:25:41,599 --> 00:25:45,000
like since I said my wife, "Hey, let's

748
00:25:43,400 --> 00:25:46,440
have a long-term relational contract for

749
00:25:45,000 --> 00:25:47,960
horizontal integration or a household

750
00:25:46,440 --> 00:25:49,920
production function." Right, so under

751
00:25:47,960 --> 00:25:52,039
This is This is private ordering. Now,

752
00:25:49,920 --> 00:25:53,519
we'll have, you know, franchisees. It's

753
00:25:52,039 --> 00:25:56,159
private Do you understand private

754
00:25:53,519 --> 00:25:59,079
ordering? Okay. So, you don't have to

755
00:25:56,160 --> 00:26:00,560
reinvent every one of these things every

756
00:25:59,079 --> 00:26:02,439
time, right? The private law is

757
00:26:00,559 --> 00:26:05,079
providing that. What's your job as the

758
00:26:02,440 --> 00:26:08,759
lawyer? Your job as the lawyer is to

759
00:26:05,079 --> 00:26:11,879
understand the objective of the client.

760
00:26:08,759 --> 00:26:14,559
Figure out which one of those forms will

761
00:26:11,880 --> 00:26:16,000
get them closest to the objective, and

762
00:26:14,559 --> 00:26:18,759
then go

763
00:26:16,000 --> 00:26:20,319
make it right. Change default rules that

764
00:26:18,759 --> 00:26:22,559
don't fit. Do you see what I'm I'm

765
00:26:20,319 --> 00:26:24,759
getting at here at first approximation.

766
00:26:22,559 --> 00:26:26,599
That's not just a deal, right? That's

767
00:26:24,759 --> 00:26:27,640
your transactional side, right? Transact

768
00:26:26,599 --> 00:26:29,399
Many of you will be transactional

769
00:26:27,640 --> 00:26:31,360
lawyers. What you're doing is you're

770
00:26:29,400 --> 00:26:33,080
taking one of the forms, and you're

771
00:26:31,359 --> 00:26:36,439
jamming what people are trying to

772
00:26:33,079 --> 00:26:38,839
achieve into that form. So, every time

773
00:26:36,440 --> 00:26:41,320
that LLC agreement doesn't have a clause

774
00:26:38,839 --> 00:26:44,079
in it is a failure that is needed is a

775
00:26:41,319 --> 00:26:45,480
failure of lawyering. Not to understand

776
00:26:44,079 --> 00:26:48,199
that the form doesn't fit what they're

777
00:26:45,480 --> 00:26:49,839
trying to do. Every time the marriage

778
00:26:48,200 --> 00:26:51,640
comes asunder and it turns out those

779
00:26:49,839 --> 00:26:53,319
rules aren't right, it's a failure.

780
00:26:51,640 --> 00:26:55,880
Means that we should have we should that

781
00:26:53,319 --> 00:26:59,039
we didn't de- change those default rules

782
00:26:55,880 --> 00:27:01,200
to fit what the people uh wanted. Even

783
00:26:59,039 --> 00:27:02,720
tort, like let's use Goldberg, now Dean

784
00:27:01,200 --> 00:27:05,039
Goldberg, right? The Pa- his vision of

785
00:27:02,720 --> 00:27:07,600
tort, the Palsgraf principle, right?

786
00:27:05,039 --> 00:27:08,960
Tort is all about you have a right, and

787
00:27:07,599 --> 00:27:11,119
if somebody takes that right, you're in

788
00:27:08,960 --> 00:27:12,480
compensation. Non-consensual transfer.

789
00:27:11,119 --> 00:27:14,359
Well, what's his idea of the Palsgraf

790
00:27:12,480 --> 00:27:15,960
principle? That it has to be

791
00:27:14,359 --> 00:27:17,279
foreseeable, right? If it's not

792
00:27:15,960 --> 00:27:18,679
foreseeable, you're taking someone

793
00:27:17,279 --> 00:27:20,920
else's right. Do you understand? That's

794
00:27:18,679 --> 00:27:21,880
just we're filling in what the contract

795
00:27:20,920 --> 00:27:25,400
would have been. We're giving you

796
00:27:21,880 --> 00:27:27,400
compensation for what was uh taken.

797
00:27:25,400 --> 00:27:29,080
So, on this view,

798
00:27:27,400 --> 00:27:30,920
on this view, the private law is just a

799
00:27:29,079 --> 00:27:32,839
set of forms. They're forms that to

800
00:27:30,920 --> 00:27:33,560
varying degrees

801
00:27:32,839 --> 00:27:36,079
uh

802
00:27:33,559 --> 00:27:38,720
let you organize, and to varying

803
00:27:36,079 --> 00:27:40,559
degrees, let you customize the

804
00:27:38,720 --> 00:27:43,160
off-the-shelf form to get at what you're

805
00:27:40,559 --> 00:27:44,919
trying uh to do. I understand there are

806
00:27:43,160 --> 00:27:46,519
problematic edge cases, right? We do

807
00:27:44,920 --> 00:27:48,320
them in class, that's what's fun, right?

808
00:27:46,519 --> 00:27:50,599
So, in a contracts class, that's Hammer

809
00:27:48,319 --> 00:27:53,639
and Sidway, that's promises not to

810
00:27:50,599 --> 00:27:55,759
smoke. And in my class, that's, well, is

811
00:27:53,640 --> 00:27:57,240
I'm going to give the manuscripts to the

812
00:27:55,759 --> 00:27:59,319
Hebrew University in Jerusalem, is that

813
00:27:57,240 --> 00:28:01,799
declaration of trust? Is that a gift?

814
00:27:59,319 --> 00:28:04,200
Because a gift to the Those are

815
00:28:01,799 --> 00:28:05,799
problems with formation.

816
00:28:04,200 --> 00:28:07,600
Right, those are formation problems, and

817
00:28:05,799 --> 00:28:10,079
you get a good lawyer involved, we'll

818
00:28:07,599 --> 00:28:13,279
solve it, right? We'll find a form, and

819
00:28:10,079 --> 00:28:15,519
we'll uh uh uh jam you uh jam you in.

820
00:28:13,279 --> 00:28:17,279
Right? Okay. Another way of uh getting

821
00:28:15,519 --> 00:28:18,720
at this cuz, you know, Passover is uh

822
00:28:17,279 --> 00:28:20,319
coming. When I was in law school, one of

823
00:28:18,720 --> 00:28:22,039
my law school classmates invited me to

824
00:28:20,319 --> 00:28:24,079
her family's for a Passover. They had a

825
00:28:22,039 --> 00:28:26,559
tradition. Their tradition is you had to

826
00:28:24,079 --> 00:28:29,359
interrupt the Seder at some point and

827
00:28:26,559 --> 00:28:30,599
make some unique contribution. So, what

828
00:28:29,359 --> 00:28:32,319
I did was when they did the four

829
00:28:30,599 --> 00:28:33,759
children, the four questions, you know,

830
00:28:32,319 --> 00:28:35,399
they had the different questions, I

831
00:28:33,759 --> 00:28:37,440
chimed in as, "I got a fifth child, a

832
00:28:35,400 --> 00:28:40,360
Chicago-trained uh child." The

833
00:28:37,440 --> 00:28:41,919
Chicago-trained child asks, "Isn't

834
00:28:40,359 --> 00:28:43,479
Weren't the 10 plagues just a really a

835
00:28:41,919 --> 00:28:45,040
failure in private ordering and

836
00:28:43,480 --> 00:28:47,559
enforcement mechanisms that if we had

837
00:28:45,039 --> 00:28:49,079
had a enforcement regime, we wouldn't

838
00:28:47,559 --> 00:28:50,879
have need to like kill all the firstborn

839
00:28:49,079 --> 00:28:52,720
in whatever uh uh Do you understand?

840
00:28:50,880 --> 00:28:54,679
Like, that's what hap- It's funny, but

841
00:28:52,720 --> 00:28:56,360
also,

842
00:28:54,679 --> 00:28:59,600
that's what happens we don't have

843
00:28:56,359 --> 00:29:01,119
enforceable private ordering forms. You

844
00:28:59,599 --> 00:29:02,639
have to slaughter people's children to

845
00:29:01,119 --> 00:29:04,479
get them to comply. I mean, that maybe

846
00:29:02,640 --> 00:29:07,520
hit him with a baseball bat. You This is

847
00:29:04,480 --> 00:29:10,200
an ordered society is about making

848
00:29:07,519 --> 00:29:12,119
ordering uh uh work. Okay, so that takes

849
00:29:10,200 --> 00:29:14,799
us to the third point, third point I

850
00:29:12,119 --> 00:29:16,279
want to talk about, which is your role.

851
00:29:14,799 --> 00:29:20,000
So, I've already talked about your roles

852
00:29:16,279 --> 00:29:22,440
as fiduciary for your client, but also,

853
00:29:20,000 --> 00:29:25,240
as a member of a learned profession,

854
00:29:22,440 --> 00:29:26,840
meaning obligation to society. And I

855
00:29:25,240 --> 00:29:28,319
want to suggest that obligation is not,

856
00:29:26,839 --> 00:29:30,039
you know, defending the republic from

857
00:29:28,319 --> 00:29:32,079
falling, you know, whatever. I I mean,

858
00:29:30,039 --> 00:29:35,000
that's important.

859
00:29:32,079 --> 00:29:37,000
But also, making this stuff work so

860
00:29:35,000 --> 00:29:38,679
within the society, we can flourish.

861
00:29:37,000 --> 00:29:40,759
Each person can flourish however they

862
00:29:38,679 --> 00:29:41,840
want. So, we've talked about one of

863
00:29:40,759 --> 00:29:44,279
those,

864
00:29:41,839 --> 00:29:46,559
which is being alert to the objective of

865
00:29:44,279 --> 00:29:47,839
the client. That means listening.

866
00:29:46,559 --> 00:29:50,279
Do you understand? That means like a

867
00:29:47,839 --> 00:29:51,879
good lawyer is a counselor Uh at law.

868
00:29:50,279 --> 00:29:54,119
You're listening. You're getting what

869
00:29:51,880 --> 00:29:56,160
they're trying to achieve and helping

870
00:29:54,119 --> 00:29:59,079
the client get the right form and

871
00:29:56,160 --> 00:30:01,720
customizing the form. Good transactional

872
00:29:59,079 --> 00:30:04,079
work involves listening

873
00:30:01,720 --> 00:30:06,319
with an empathetic ear, really getting

874
00:30:04,079 --> 00:30:08,439
the objective, counseling the client on

875
00:30:06,319 --> 00:30:11,159
the ways to get there, and making that

876
00:30:08,440 --> 00:30:12,360
form fit the circumstances. That's one

877
00:30:11,160 --> 00:30:14,519
we've been emphasizing. I want to talk

878
00:30:12,359 --> 00:30:16,479
about two others.

879
00:30:14,519 --> 00:30:17,720
One is

880
00:30:16,480 --> 00:30:21,480
when

881
00:30:17,720 --> 00:30:22,680
dealing with private ordering gone awry.

882
00:30:21,480 --> 00:30:24,640
So now we're talking about litigation

883
00:30:22,680 --> 00:30:25,840
and lawyering and in court and also

884
00:30:24,640 --> 00:30:27,400
judging.

885
00:30:25,839 --> 00:30:29,919
And the third is going to be your

886
00:30:27,400 --> 00:30:31,560
responsibility for making the law for

887
00:30:29,920 --> 00:30:32,560
making law work.

888
00:30:31,559 --> 00:30:34,879
So here's what I'm going to do. I want

889
00:30:32,559 --> 00:30:36,480
to go back to this new case, a favorite

890
00:30:34,880 --> 00:30:37,720
it's a favorite case. I just started at

891
00:30:36,480 --> 00:30:38,799
teaching this. But we're going to do

892
00:30:37,720 --> 00:30:40,120
this and some of you have seen it, but

893
00:30:38,799 --> 00:30:41,799
we're going to do it differently now cuz

894
00:30:40,119 --> 00:30:44,279
we're a different prism. Remember this

895
00:30:41,799 --> 00:30:46,079
guy? So this is Beck, right? This is the

896
00:30:44,279 --> 00:30:48,160
Beck case from Montana. For those who

897
00:30:46,079 --> 00:30:51,720
don't know what happened here, so this

898
00:30:48,160 --> 00:30:54,080
guy Beck is in his truck and I takes his

899
00:30:51,720 --> 00:30:57,319
iPhone, he makes a recording, right?

900
00:30:54,079 --> 00:30:59,599
Takes his iPhone, he makes a recording.

901
00:30:57,319 --> 00:31:02,759
Give all my possessions. If anything

902
00:30:59,599 --> 00:31:06,279
happens to me whatsoever, I give all my

903
00:31:02,759 --> 00:31:08,680
possessions, everything to Jason Beck,

904
00:31:06,279 --> 00:31:10,440
my brother.

905
00:31:08,680 --> 00:31:12,560
I don't think I'll find out that night

906
00:31:10,440 --> 00:31:15,320
get one thing.

907
00:31:12,559 --> 00:31:17,079
Not one thing.

908
00:31:15,319 --> 00:31:19,319
Okay. So

909
00:31:17,079 --> 00:31:21,199
we understand what's going on here? Now,

910
00:31:19,319 --> 00:31:22,639
he's trying to he's trying to order his

911
00:31:21,200 --> 00:31:24,080
affairs.

912
00:31:22,640 --> 00:31:26,240
Do you understand what I So here we have

913
00:31:24,079 --> 00:31:28,399
a member of our civil society who is

914
00:31:26,240 --> 00:31:30,640
exercising that right that we want

915
00:31:28,400 --> 00:31:33,280
everybody in our society to have to

916
00:31:30,640 --> 00:31:35,200
order his affairs, right? This This is I

917
00:31:33,279 --> 00:31:36,240
is manifesting testamentary intent. I

918
00:31:35,200 --> 00:31:37,440
don't Nobody's going to just I don't

919
00:31:36,240 --> 00:31:39,599
think everybody does Anybody disagree

920
00:31:37,440 --> 00:31:42,240
here? He's This guy is telling us what

921
00:31:39,599 --> 00:31:45,159
he wants to happen to his property when

922
00:31:42,240 --> 00:31:47,559
he dies. Now, if he came to you once

923
00:31:45,160 --> 00:31:49,200
you're licensed or he came to me, I am

924
00:31:47,559 --> 00:31:51,359
licensed. If

925
00:31:49,200 --> 00:31:53,000
if it came to you, came to me it comes

926
00:31:51,359 --> 00:31:54,439
to me, what would we do? Well, I know

927
00:31:53,000 --> 00:31:55,400
the forms, right? I'm like, "Oh, we're

928
00:31:54,440 --> 00:31:57,240
going to tell her this. We can do a

929
00:31:55,400 --> 00:32:00,080
revocable trust. We can do a will." We I

930
00:31:57,240 --> 00:32:01,519
got lots of forms. And I can make it fit

931
00:32:00,079 --> 00:32:03,119
and I can do this right and I can make

932
00:32:01,519 --> 00:32:06,720
sure Christina Fontenot doesn't see a

933
00:32:03,119 --> 00:32:08,279
penny. No problem. Good to go, right?

934
00:32:06,720 --> 00:32:10,600
But he didn't.

935
00:32:08,279 --> 00:32:12,240
Right? Didn't have a a lawyer there,

936
00:32:10,599 --> 00:32:14,719
right? So there was no transactional

937
00:32:12,240 --> 00:32:16,519
lawyer involved. So where are we now?

938
00:32:14,720 --> 00:32:18,480
Well, the lawyer's involved after he

939
00:32:16,519 --> 00:32:20,639
dies when his brother brings this to

940
00:32:18,480 --> 00:32:23,240
court. When his brother brings this to

941
00:32:20,640 --> 00:32:24,800
court and wants to a probate it. So now

942
00:32:23,240 --> 00:32:26,400
remember I said we have three spots. One

943
00:32:24,799 --> 00:32:28,639
is the client comes to you, we're going

944
00:32:26,400 --> 00:32:31,519
to help them order. Second is it gets

945
00:32:28,640 --> 00:32:33,640
busted and now we're in court. So what

946
00:32:31,519 --> 00:32:35,480
can we do when we're in court? Here the

947
00:32:33,640 --> 00:32:37,759
claim I want to make

948
00:32:35,480 --> 00:32:39,480
is that our grand debates about

949
00:32:37,759 --> 00:32:41,679
constitutional structure, about public

950
00:32:39,480 --> 00:32:44,839
law have disfigured

951
00:32:41,679 --> 00:32:46,679
our reasoning in private law cases.

952
00:32:44,839 --> 00:32:47,879
Right? We are we're bringing the wrong

953
00:32:46,679 --> 00:32:49,800
We're bringing an inappropriate

954
00:32:47,880 --> 00:32:52,560
methodology to these cases. So here's

955
00:32:49,799 --> 00:32:54,319
the statute at issue. Here's the statute

956
00:32:52,559 --> 00:32:56,678
in this case.

957
00:32:54,319 --> 00:32:58,200
A document or a writing added upon a

958
00:32:56,679 --> 00:33:00,920
document

959
00:32:58,200 --> 00:33:02,160
is probatable if there's clear and

960
00:33:00,920 --> 00:33:05,400
convincing evidence the decedent

961
00:33:02,160 --> 00:33:07,040
intended the document to be his will.

962
00:33:05,400 --> 00:33:09,280
Everybody agrees this guy meant for the

963
00:33:07,039 --> 00:33:10,399
for the for the video to be a will.

964
00:33:09,279 --> 00:33:12,359
Right? The court says so in the

965
00:33:10,400 --> 00:33:13,960
decision. This this reflects the

966
00:33:12,359 --> 00:33:16,359
testamentary intent. Nobody's doubting

967
00:33:13,960 --> 00:33:18,799
that he wants this video to be his will.

968
00:33:16,359 --> 00:33:21,479
It's a statutory interpretation case. Is

969
00:33:18,799 --> 00:33:24,519
the recording a document? Is the

970
00:33:21,480 --> 00:33:26,960
recording a document or a

971
00:33:24,519 --> 00:33:28,799
writing upon a document?

972
00:33:26,960 --> 00:33:30,160
That's the question.

973
00:33:28,799 --> 00:33:31,639
Okay, that's that's fine. So let's do

974
00:33:30,160 --> 00:33:33,800
the internal and then the external.

975
00:33:31,640 --> 00:33:34,880
Here's how the court resolved the case.

976
00:33:33,799 --> 00:33:37,159
The court says well, the statute is

977
00:33:34,880 --> 00:33:38,440
clear and unambiguous.

978
00:33:37,160 --> 00:33:40,920
It's always a warning, right? When we

979
00:33:38,440 --> 00:33:42,920
say a statute is clear and unambiguous.

980
00:33:40,920 --> 00:33:45,920
Statute is clear and unambiguous. It

981
00:33:42,920 --> 00:33:48,279
doesn't that the the video is not.

982
00:33:45,920 --> 00:33:50,880
Okay, why? Well, it says document or a

983
00:33:48,279 --> 00:33:53,319
writing upon a document. So to be a

984
00:33:50,880 --> 00:33:55,400
document, you must be capable of having

985
00:33:53,319 --> 00:33:56,678
writing put upon it.

986
00:33:55,400 --> 00:33:58,800
There's no It's Well, there's a

987
00:33:56,679 --> 00:34:01,120
recording. You can't put a writing upon

988
00:33:58,799 --> 00:34:03,879
that. So writing has to A document must

989
00:34:01,119 --> 00:34:05,239
be something that has writing on it.

990
00:34:03,880 --> 00:34:07,560
A document is not a document if it

991
00:34:05,240 --> 00:34:10,000
doesn't have a writing upon it. So this

992
00:34:07,559 --> 00:34:12,320
is not that, says the court. That's one

993
00:34:10,000 --> 00:34:14,398
argument. Secondly, the court says also

994
00:34:12,320 --> 00:34:16,720
we see that our that there's this

995
00:34:14,398 --> 00:34:19,000
uniform uniform electronic

996
00:34:16,719 --> 00:34:20,719
wills act, which our state has not

997
00:34:19,000 --> 00:34:23,280
adopted.

998
00:34:20,719 --> 00:34:25,239
But it says to be an electronic will, it

999
00:34:23,280 --> 00:34:27,519
has to be readable as text. And this is

1000
00:34:25,239 --> 00:34:29,358
not readable as text. So that reinforced

1001
00:34:27,519 --> 00:34:30,960
our conclusion that's definitely not.

1002
00:34:29,358 --> 00:34:32,559
Okay, that's how the court answers this

1003
00:34:30,960 --> 00:34:33,878
question. Do you see how the the mode of

1004
00:34:32,559 --> 00:34:36,239
reasoning here?

1005
00:34:33,878 --> 00:34:37,519
This is about limiting power.

1006
00:34:36,239 --> 00:34:39,599
Do you see this very public law way of

1007
00:34:37,519 --> 00:34:41,599
thinking? It's the claim I want to make.

1008
00:34:39,599 --> 00:34:44,119
This about protecting, about limited

1009
00:34:41,599 --> 00:34:45,719
power, about well, I'm concerned about

1010
00:34:44,119 --> 00:34:47,679
the coercive power of the state. None of

1011
00:34:45,719 --> 00:34:50,279
that's an issue here, right?

1012
00:34:47,679 --> 00:34:51,760
This is a facilitative statute.

1013
00:34:50,280 --> 00:34:53,399
This is when I have overwhelming

1014
00:34:51,760 --> 00:34:55,240
evidence that the thing was meant to be

1015
00:34:53,398 --> 00:34:57,358
a will, it should be a will.

1016
00:34:55,239 --> 00:34:58,959
Now, I'm not saying that it's clear that

1017
00:34:57,358 --> 00:35:00,880
the right that the video is in or the

1018
00:34:58,960 --> 00:35:03,240
video is not in. I'm just saying there's

1019
00:35:00,880 --> 00:35:04,480
nothing like that there. It's a right?

1020
00:35:03,239 --> 00:35:07,079
The claim I'm making is the

1021
00:35:04,480 --> 00:35:09,400
preoccupation with public law

1022
00:35:07,079 --> 00:35:11,599
obscured from the court what to do. And

1023
00:35:09,400 --> 00:35:14,400
the court wants to think that it's super

1024
00:35:11,599 --> 00:35:15,960
textualist, right? A writing or document

1025
00:35:14,400 --> 00:35:17,599
of a writing upon a document and how

1026
00:35:15,960 --> 00:35:19,480
it's reasoning. And then of course it

1027
00:35:17,599 --> 00:35:20,920
makes this totally non-textual turn to

1028
00:35:19,480 --> 00:35:22,800
start reading a statute that was never

1029
00:35:20,920 --> 00:35:24,639
even adopted.

1030
00:35:22,800 --> 00:35:26,280
That was never even adopted, right?

1031
00:35:24,639 --> 00:35:28,480
Okay. What would be another way to think

1032
00:35:26,280 --> 00:35:30,280
about the Let's do another way to think

1033
00:35:28,480 --> 00:35:31,400
of this. So here's the one One of you, I

1034
00:35:30,280 --> 00:35:34,560
don't know if it was in this room.

1035
00:35:31,400 --> 00:35:36,079
Somebody in their exam wrote this.

1036
00:35:34,559 --> 00:35:39,039
Well, if you have a statute that says a

1037
00:35:36,079 --> 00:35:41,559
farm animal or a person riding upon a

1038
00:35:39,039 --> 00:35:43,239
farm animal doesn't make chickens no

1039
00:35:41,559 --> 00:35:44,840
longer farm animals cuz you can't ride a

1040
00:35:43,239 --> 00:35:46,679
chicken.

1041
00:35:44,840 --> 00:35:49,440
Right? A Suppose you have a statute that

1042
00:35:46,679 --> 00:35:51,399
says farm animals or people riding upon

1043
00:35:49,440 --> 00:35:53,760
farm animals. Well, you can't be a farm

1044
00:35:51,400 --> 00:35:55,119
animal then if people don't ride you.

1045
00:35:53,760 --> 00:35:56,400
But isn't that exactly what this court

1046
00:35:55,119 --> 00:35:57,960
just said?

1047
00:35:56,400 --> 00:35:59,720
Right? If chickens are still farm

1048
00:35:57,960 --> 00:36:01,960
animals under the under this student

1049
00:35:59,719 --> 00:36:03,639
statute, then maybe riding then

1050
00:36:01,960 --> 00:36:05,800
documents can be documents even if they

1051
00:36:03,639 --> 00:36:09,519
can't have writings upon them.

1052
00:36:05,800 --> 00:36:11,880
I know actually. I I know that the

1053
00:36:09,519 --> 00:36:13,920
drafter of this statute did not mean

1054
00:36:11,880 --> 00:36:16,440
document or writing upon a document to

1055
00:36:13,920 --> 00:36:18,200
signal that document means only things

1056
00:36:16,440 --> 00:36:19,599
writing about it cuz it was my friend

1057
00:36:18,199 --> 00:36:21,679
Larry Waggoner at the University of

1058
00:36:19,599 --> 00:36:23,719
Michigan who wrote it. And what he was

1059
00:36:21,679 --> 00:36:25,399
thinking about were all these wills

1060
00:36:23,719 --> 00:36:27,759
where people scratched something out and

1061
00:36:25,400 --> 00:36:29,440
they wrote something else in by hand.

1062
00:36:27,760 --> 00:36:31,440
That's what he thought.

1063
00:36:29,440 --> 00:36:33,760
And if you were willing to approach this

1064
00:36:31,440 --> 00:36:36,358
case from a different framework instead

1065
00:36:33,760 --> 00:36:38,480
of the disfiguring of public law,

1066
00:36:36,358 --> 00:36:40,000
instead if you came at this as this a

1067
00:36:38,480 --> 00:36:41,559
facilitative statute, it's actually a

1068
00:36:40,000 --> 00:36:43,800
uniform act that has a history, where

1069
00:36:41,559 --> 00:36:45,799
did it come from, maybe it decided

1070
00:36:43,800 --> 00:36:47,080
differently, maybe not.

1071
00:36:45,800 --> 00:36:49,200
It's actually very I mean a hard

1072
00:36:47,079 --> 00:36:50,960
question whether videos fall under the

1073
00:36:49,199 --> 00:36:53,639
statute. But that would be the

1074
00:36:50,960 --> 00:36:56,358
conversation you would be having.

1075
00:36:53,639 --> 00:36:57,480
I don't mean to say to be clear, I don't

1076
00:36:56,358 --> 00:36:58,599
mean to And let me just say one other

1077
00:36:57,480 --> 00:37:00,000
thing. It's I don't even think the

1078
00:36:58,599 --> 00:37:01,559
court's right. I mean we know this,

1079
00:37:00,000 --> 00:37:03,199
right? That a video has like you're all

1080
00:37:01,559 --> 00:37:04,519
on TikTok. You all know videos can have

1081
00:37:03,199 --> 00:37:05,879
writing upon them.

1082
00:37:04,519 --> 00:37:07,719
You understand like if the guy just

1083
00:37:05,880 --> 00:37:09,079
turned on closed captioning, then we

1084
00:37:07,719 --> 00:37:11,439
would probate it?

1085
00:37:09,079 --> 00:37:14,440
That's really weird, right? That's we

1086
00:37:11,440 --> 00:37:16,280
hold today that our legislature decided

1087
00:37:14,440 --> 00:37:17,800
that if you turn closed captioning on,

1088
00:37:16,280 --> 00:37:19,840
video will is good, but if you don't,

1089
00:37:17,800 --> 00:37:22,640
video will is not.

1090
00:37:19,840 --> 00:37:25,519
When it when it adopted this uniform act

1091
00:37:22,639 --> 00:37:27,759
that was drafted in late '80s.

1092
00:37:25,519 --> 00:37:29,800
Like I'm I I'm I was there in the late I

1093
00:37:27,760 --> 00:37:31,680
mean I remember the late '80s.

1094
00:37:29,800 --> 00:37:33,120
We had camcorders like this. Do you know

1095
00:37:31,679 --> 00:37:35,239
what I mean? There was no

1096
00:37:33,119 --> 00:37:37,358
closed caption. It's not how that

1097
00:37:35,239 --> 00:37:40,239
worked. Okay. So here's another What So

1098
00:37:37,358 --> 00:37:42,000
what could we do to What could we do to

1099
00:37:40,239 --> 00:37:43,239
What could we do to to try to defend the

1100
00:37:42,000 --> 00:37:44,960
decision? Here's another way to think of

1101
00:37:43,239 --> 00:37:47,279
the decision.

1102
00:37:44,960 --> 00:37:49,519
What you might have said was you might

1103
00:37:47,280 --> 00:37:51,720
say, "You know what? This statute is

1104
00:37:49,519 --> 00:37:54,440
from 1990. It was drafted by the Uniform

1105
00:37:51,719 --> 00:37:55,839
Law Commission in the 1980s. Nobody in

1106
00:37:54,440 --> 00:37:57,920
that in this period would have thought a

1107
00:37:55,840 --> 00:38:00,079
video would have been acceptable. But

1108
00:37:57,920 --> 00:38:01,280
today lots of people are recording all

1109
00:38:00,079 --> 00:38:02,759
the time.

1110
00:38:01,280 --> 00:38:05,120
They are going around making

1111
00:38:02,760 --> 00:38:07,200
documentaries,

1112
00:38:05,119 --> 00:38:10,159
right? They are recording what's

1113
00:38:07,199 --> 00:38:12,000
happening and our statute seems out of

1114
00:38:10,159 --> 00:38:13,799
date, but this is a big giant public

1115
00:38:12,000 --> 00:38:15,880
policy question whether or not we're

1116
00:38:13,800 --> 00:38:18,400
comfortable facilitating, whether this

1117
00:38:15,880 --> 00:38:20,039
is a form that we want to recognize,

1118
00:38:18,400 --> 00:38:22,039
whether we think the social costs of

1119
00:38:20,039 --> 00:38:23,920
enforcing these forms are worth it, and

1120
00:38:22,039 --> 00:38:25,840
that's too big for me as a judge. I'm

1121
00:38:23,920 --> 00:38:28,800
kicking that to the legislature." That

1122
00:38:25,840 --> 00:38:29,800
would be a totally reasonable way to go,

1123
00:38:28,800 --> 00:38:31,280
right? That's fine. It's not what the

1124
00:38:29,800 --> 00:38:33,160
court's saying.

1125
00:38:31,280 --> 00:38:35,359
The court's decision is all internal,

1126
00:38:33,159 --> 00:38:37,319
right? It's all pretend. It's all well,

1127
00:38:35,358 --> 00:38:39,400
the statute clearly answers the

1128
00:38:37,320 --> 00:38:41,000
question.

1129
00:38:39,400 --> 00:38:42,559
Maybe not. Maybe it does, maybe it

1130
00:38:41,000 --> 00:38:43,960
doesn't. Maybe this is a different Maybe

1131
00:38:42,559 --> 00:38:45,880
what I'm describing is really what it's

1132
00:38:43,960 --> 00:38:48,639
about. Okay, so here's a joke that Dick

1133
00:38:45,880 --> 00:38:50,240
Posner told me when I was clerking. So

1134
00:38:48,639 --> 00:38:52,319
it's like ever so slightly off color,

1135
00:38:50,239 --> 00:38:54,399
but only ever so slightly, so it's okay.

1136
00:38:52,320 --> 00:38:56,440
So I Here we go, right? Okay. Guy's

1137
00:38:54,400 --> 00:38:58,039
walking down the street

1138
00:38:56,440 --> 00:38:59,039
and he comes to this storefront and

1139
00:38:58,039 --> 00:39:01,358
there

1140
00:38:59,039 --> 00:39:04,039
flowers and art and pictures and

1141
00:39:01,358 --> 00:39:06,400
beautiful things in the in the window.

1142
00:39:04,039 --> 00:39:08,960
And the thing says, you know, it's

1143
00:39:06,400 --> 00:39:10,559
Moshi's Mohel Services. A mohel is

1144
00:39:08,960 --> 00:39:13,320
someone who does the bris, who does the

1145
00:39:10,559 --> 00:39:14,799
circumcision in Jewish tradition.

1146
00:39:13,320 --> 00:39:17,960
So guy goes in the store and he says,

1147
00:39:14,800 --> 00:39:19,120
"W- Why you're a mohel? Yes, you do the

1148
00:39:17,960 --> 00:39:20,159
brises, you do the circumcisions?"

1149
00:39:19,119 --> 00:39:22,119
That's right. "Well, why do you have

1150
00:39:20,159 --> 00:39:23,799
flowers and pictures and all this stuff

1151
00:39:22,119 --> 00:39:24,880
in your in your window front?" He says,

1152
00:39:23,800 --> 00:39:26,280
"Well, what would you have me put

1153
00:39:24,880 --> 00:39:28,039
there?"

1154
00:39:26,280 --> 00:39:29,359
Okay. What

1155
00:39:28,039 --> 00:39:30,759
And now you understand about Judge

1156
00:39:29,358 --> 00:39:33,679
Posner's

1157
00:39:30,760 --> 00:39:35,960
view of opinions. So the

1158
00:39:33,679 --> 00:39:37,399
What do you want the court to say?

1159
00:39:35,960 --> 00:39:39,280
Right? Like

1160
00:39:37,400 --> 00:39:41,680
this is a hard problem whether or not to

1161
00:39:39,280 --> 00:39:43,640
recognize video wills, right? But I

1162
00:39:41,679 --> 00:39:46,759
don't think you're helping anybody by

1163
00:39:43,639 --> 00:39:48,599
doing this kind of this this mendacious

1164
00:39:46,760 --> 00:39:50,880
statutory interpretation. That's not

1165
00:39:48,599 --> 00:39:53,679
even true on its own terms. It's not

1166
00:39:50,880 --> 00:39:55,400
even true uh on its own terms.

1167
00:39:53,679 --> 00:39:56,519
So, okay. Well, if you do this word if

1168
00:39:55,400 --> 00:39:57,760
you're going where I want to go, which

1169
00:39:56,519 --> 00:40:00,480
is either you're going to say, "Look,

1170
00:39:57,760 --> 00:40:02,440
this is a facilitative statute and uh I

1171
00:40:00,480 --> 00:40:04,320
could read it both ways. I don't see any

1172
00:40:02,440 --> 00:40:05,800
policy reason not to let someone do

1173
00:40:04,320 --> 00:40:07,840
this. So, I'm going to let them do this

1174
00:40:05,800 --> 00:40:09,720
till legislature stops me."

1175
00:40:07,840 --> 00:40:11,320
Cuz it's a facilitative statute. I don't

1176
00:40:09,719 --> 00:40:12,879
see any Okay, that's what I would do if

1177
00:40:11,320 --> 00:40:14,400
I was the judge. You don't have to. You

1178
00:40:12,880 --> 00:40:15,400
can go the other way. You might want to

1179
00:40:14,400 --> 00:40:16,639
say, "Well, I'm going to kick it to the

1180
00:40:15,400 --> 00:40:18,320
legislature." Which brings me to the

1181
00:40:16,639 --> 00:40:21,519
last point, the last thing I want to

1182
00:40:18,320 --> 00:40:22,480
say, which is "Well, that's fine."

1183
00:40:21,519 --> 00:40:24,480
Right? That's fine. We're going to kick

1184
00:40:22,480 --> 00:40:26,920
it to the legislature.

1185
00:40:24,480 --> 00:40:29,000
But then without us, without you,

1186
00:40:26,920 --> 00:40:31,480
without the learned profession doing law

1187
00:40:29,000 --> 00:40:32,920
reform, I think it's a hopelessly naive

1188
00:40:31,480 --> 00:40:34,559
understanding of the political

1189
00:40:32,920 --> 00:40:37,000
structure.

1190
00:40:34,559 --> 00:40:39,279
Never in the history of the world has

1191
00:40:37,000 --> 00:40:42,320
anyone run for governor or state

1192
00:40:39,280 --> 00:40:44,440
legislature saying, "Vote for me because

1193
00:40:42,320 --> 00:40:47,360
I'm going to update the law of wills to

1194
00:40:44,440 --> 00:40:49,240
account for new electronic stuff."

1195
00:40:47,360 --> 00:40:52,800
"Put me in Congress because I'm going to

1196
00:40:49,239 --> 00:40:54,799
fix revocation on divorce in ERISA."

1197
00:40:52,800 --> 00:40:57,280
"Vote for me because I've observed that

1198
00:40:54,800 --> 00:40:58,960
the spousal forced share, which is part

1199
00:40:57,280 --> 00:41:01,400
of the default rules of the marriage

1200
00:40:58,960 --> 00:41:02,880
form, no longer aligns with the rise of

1201
00:41:01,400 --> 00:41:05,440
non-probate."

1202
00:41:02,880 --> 00:41:07,840
Do you know who knows that? We.

1203
00:41:05,440 --> 00:41:11,320
The members of the learned profession

1204
00:41:07,840 --> 00:41:13,160
who who help people with the forms and

1205
00:41:11,320 --> 00:41:15,480
walk them through. We see where the

1206
00:41:13,159 --> 00:41:17,879
problems are with the forms and when we

1207
00:41:15,480 --> 00:41:20,280
can't draft around them.

1208
00:41:17,880 --> 00:41:22,240
Or we have people who don't know to

1209
00:41:20,280 --> 00:41:24,000
draft around them.

1210
00:41:22,239 --> 00:41:25,759
This is not just about responsibility

1211
00:41:24,000 --> 00:41:28,639
for keeping the law updated, but it's

1212
00:41:25,760 --> 00:41:30,880
also about legitimacy.

1213
00:41:28,639 --> 00:41:32,960
Right? There's a horizontal equity point

1214
00:41:30,880 --> 00:41:36,119
here. And I don't just mean about wealth

1215
00:41:32,960 --> 00:41:37,840
or access to lawyers. So, here's a text

1216
00:41:36,119 --> 00:41:39,639
message a student of mine got some years

1217
00:41:37,840 --> 00:41:41,360
ago. People you've seen this before.

1218
00:41:39,639 --> 00:41:44,199
Getting on some flights with dad, we

1219
00:41:41,360 --> 00:41:46,840
realize we don't have a will.

1220
00:41:44,199 --> 00:41:48,119
If anything happens and it won't, mom

1221
00:41:46,840 --> 00:41:50,320
lies.

1222
00:41:48,119 --> 00:41:51,920
Things bad things can and do happen.

1223
00:41:50,320 --> 00:41:54,080
Please be uh

1224
00:41:51,920 --> 00:41:55,599
and please be executor and divide all

1225
00:41:54,079 --> 00:41:59,880
things equal. Don't know if this would

1226
00:41:55,599 --> 00:41:59,880
count, but it's the best I can do.

1227
00:41:59,960 --> 00:42:05,320
Love you and miss your face. So, there's

1228
00:42:02,519 --> 00:42:07,320
your authenticity cuz that's a mom. Only

1229
00:42:05,320 --> 00:42:09,600
I miss your face.

1230
00:42:07,320 --> 00:42:10,760
It's fine, right?

1231
00:42:09,599 --> 00:42:14,679
Uh

1232
00:42:10,760 --> 00:42:16,840
This one satisfies the statute.

1233
00:42:14,679 --> 00:42:21,839
Because it's a writing.

1234
00:42:16,840 --> 00:42:24,200
So, video, no go. This one does.

1235
00:42:21,840 --> 00:42:26,320
What is the principal distinction

1236
00:42:24,199 --> 00:42:28,719
between those cases?

1237
00:42:26,320 --> 00:42:30,480
Right? That's just I'm going to claim

1238
00:42:28,719 --> 00:42:32,159
it's I want to argue it's an arbitrary

1239
00:42:30,480 --> 00:42:36,199
distinction. It's a horizontal

1240
00:42:32,159 --> 00:42:39,599
inequality. Like Like efforts at private

1241
00:42:36,199 --> 00:42:42,319
ordering are being treated unlike.

1242
00:42:39,599 --> 00:42:43,799
Right? It's an arbitrary way. And so, we

1243
00:42:42,320 --> 00:42:45,640
want to we want to fix that. So, that

1244
00:42:43,800 --> 00:42:47,120
brings me to the last thing I want to

1245
00:42:45,639 --> 00:42:48,440
the last thing I want to talk about,

1246
00:42:47,119 --> 00:42:51,519
which is

1247
00:42:48,440 --> 00:42:53,320
this rule of law. So, the you're all the

1248
00:42:51,519 --> 00:42:54,400
time you're going to hear at graduation

1249
00:42:53,320 --> 00:42:55,600
and these other last lecture all the

1250
00:42:54,400 --> 00:42:57,720
time you're going to hear about rule of

1251
00:42:55,599 --> 00:42:59,599
law is endangered and you have to

1252
00:42:57,719 --> 00:43:01,359
protect the constitutional order and on

1253
00:42:59,599 --> 00:43:03,079
and on and on. It's fine. I mean I I

1254
00:43:01,360 --> 00:43:05,680
mean it's not wrong that we need to have

1255
00:43:03,079 --> 00:43:07,599
that. But that's that's just the

1256
00:43:05,679 --> 00:43:10,839
predicate

1257
00:43:07,599 --> 00:43:14,079
to what matters to people on a retail

1258
00:43:10,840 --> 00:43:16,240
level. What matters to mom here is if

1259
00:43:14,079 --> 00:43:18,279
that plane crashes, he's the executor is

1260
00:43:16,239 --> 00:43:19,519
the executor and things are split

1261
00:43:18,280 --> 00:43:21,480
evenly.

1262
00:43:19,519 --> 00:43:23,800
Right? That's what she's looking for.

1263
00:43:21,480 --> 00:43:29,159
So, what do you do as I want to suggest

1264
00:43:23,800 --> 00:43:31,200
that the the further obligation is to

1265
00:43:29,159 --> 00:43:33,199
get these things fixed.

1266
00:43:31,199 --> 00:43:36,319
Right? There's another conception of

1267
00:43:33,199 --> 00:43:39,199
public interest public service and that

1268
00:43:36,320 --> 00:43:40,800
is the private law reform apparatus.

1269
00:43:39,199 --> 00:43:42,039
There's a lot of versions of it. There's

1270
00:43:40,800 --> 00:43:43,960
the American Law Institute and the

1271
00:43:42,039 --> 00:43:46,039
restatements. There's Uniform Law

1272
00:43:43,960 --> 00:43:47,960
Commission and Uniform Acts. But there's

1273
00:43:46,039 --> 00:43:49,360
your local bar associations and the

1274
00:43:47,960 --> 00:43:51,360
various committees that bring the

1275
00:43:49,360 --> 00:43:53,840
statutes to the legislature.

1276
00:43:51,360 --> 00:43:55,720
So, how do these little tweaks happen?

1277
00:43:53,840 --> 00:43:58,840
How does the partnership law of whatever

1278
00:43:55,719 --> 00:44:00,839
state, the LLC law, the divorce law, the

1279
00:43:58,840 --> 00:44:02,320
marriage law, the trust law, the wills

1280
00:44:00,840 --> 00:44:04,840
law, the contract law, how do these

1281
00:44:02,320 --> 00:44:07,359
things get changed? It's ALI, it's ULC,

1282
00:44:04,840 --> 00:44:09,000
it's local bar groups going to the local

1283
00:44:07,358 --> 00:44:10,440
legislature saying, "We have this

1284
00:44:09,000 --> 00:44:12,559
problem we need to fix it." Well, who

1285
00:44:10,440 --> 00:44:14,079
opposes? Nobody.

1286
00:44:12,559 --> 00:44:15,559
Why aren't we done yet? Nobody knows.

1287
00:44:14,079 --> 00:44:17,759
This is just what we need to make things

1288
00:44:15,559 --> 00:44:20,159
work. You see where I what the the the

1289
00:44:17,760 --> 00:44:23,000
point I want to I'm trying to make here?

1290
00:44:20,159 --> 00:44:24,559
Okay. So, here's here's an example.

1291
00:44:23,000 --> 00:44:26,119
Right? Here's an example. So, people

1292
00:44:24,559 --> 00:44:27,358
already know My father died a year and a

1293
00:44:26,119 --> 00:44:28,599
half ago. He lives in he lived in New

1294
00:44:27,358 --> 00:44:30,159
York.

1295
00:44:28,599 --> 00:44:32,559
I'm the fiduciary of everything. I live

1296
00:44:30,159 --> 00:44:34,719
in Massachusetts. I have a brother. He

1297
00:44:32,559 --> 00:44:36,519
lives in Florida.

1298
00:44:34,719 --> 00:44:38,119
Okay, you understand? That's a conflicts

1299
00:44:36,519 --> 00:44:39,679
of law problem.

1300
00:44:38,119 --> 00:44:42,400
It's a conflicts of law problem. I got a

1301
00:44:39,679 --> 00:44:44,279
will and a trust from New York. I got an

1302
00:44:42,400 --> 00:44:47,079
a fiduciary in Massachusetts. I got a

1303
00:44:44,280 --> 00:44:49,400
beneficiary in Florida. It's a conflicts

1304
00:44:47,079 --> 00:44:52,159
of law problem. Okay. It turns out that

1305
00:44:49,400 --> 00:44:53,720
conflicts of law and trusts is is all

1306
00:44:52,159 --> 00:44:55,079
derived from the second restatement

1307
00:44:53,719 --> 00:44:56,239
written by Austin Wakeman Scott, you

1308
00:44:55,079 --> 00:44:57,519
know, of

1309
00:44:56,239 --> 00:45:00,119
Harvard Law School.

1310
00:44:57,519 --> 00:45:01,719
And none of it works anymore.

1311
00:45:00,119 --> 00:45:04,519
Right? None of it works anymore because

1312
00:45:01,719 --> 00:45:08,000
it's all based on uh testamentary trust.

1313
00:45:04,519 --> 00:45:09,840
It's based on territorial contacts.

1314
00:45:08,000 --> 00:45:12,599
None of this works anymore.

1315
00:45:09,840 --> 00:45:14,039
And nobody knows, right? Course continue

1316
00:45:12,599 --> 00:45:16,279
to follow the second restatement we're

1317
00:45:14,039 --> 00:45:17,559
getting increasingly bizarre decisions.

1318
00:45:16,280 --> 00:45:19,200
The American Law Institute and Uniform

1319
00:45:17,559 --> 00:45:20,759
Law Commission are doing new projects to

1320
00:45:19,199 --> 00:45:23,599
have a new restatement or new uniform

1321
00:45:20,760 --> 00:45:26,200
act. And they're completely rewritten to

1322
00:45:23,599 --> 00:45:28,799
reflect the realities of on the ground

1323
00:45:26,199 --> 00:45:29,679
practice now. Right? So, I'm the chair

1324
00:45:28,800 --> 00:45:31,600
of the drafting committee for the

1325
00:45:29,679 --> 00:45:33,559
Uniform Act. Kim Roosevelt University of

1326
00:45:31,599 --> 00:45:35,279
Pennsylvania is the reporter for the for

1327
00:45:33,559 --> 00:45:37,519
the restatement. Right? And so, we're

1328
00:45:35,280 --> 00:45:39,760
coordinating. So, why? What's the

1329
00:45:37,519 --> 00:45:42,639
purpose of that? Well, because like it's

1330
00:45:39,760 --> 00:45:44,680
not so weird to see people die with

1331
00:45:42,639 --> 00:45:47,719
family in another state.

1332
00:45:44,679 --> 00:45:49,879
It's not so weird anymore. So, okay. Why

1333
00:45:47,719 --> 00:45:52,439
is that important to me? It's important

1334
00:45:49,880 --> 00:45:53,559
to me because I want to see that right.

1335
00:45:52,440 --> 00:45:55,440
Want to see that right cuz that's a

1336
00:45:53,559 --> 00:45:57,079
thing people are trying to do. And so,

1337
00:45:55,440 --> 00:45:59,240
the claim, the thing I'm trying to

1338
00:45:57,079 --> 00:46:00,079
suggest I'm mindful that I got to keep

1339
00:45:59,239 --> 00:46:01,159
this

1340
00:46:00,079 --> 00:46:02,679
tight cuz people got to get to their

1341
00:46:01,159 --> 00:46:03,679
classes and if we can open the door to

1342
00:46:02,679 --> 00:46:05,399
questions.

1343
00:46:03,679 --> 00:46:07,559
The claim I'm trying to make is that

1344
00:46:05,400 --> 00:46:10,800
this matters to people on a retail

1345
00:46:07,559 --> 00:46:12,440
level. I'm not denying the preservation

1346
00:46:10,800 --> 00:46:15,200
of the constitutional order and checks

1347
00:46:12,440 --> 00:46:17,800
and balances and due process. That's

1348
00:46:15,199 --> 00:46:21,159
important, obviously. It's predicate.

1349
00:46:17,800 --> 00:46:26,240
I'm suggesting that on a retail level

1350
00:46:21,159 --> 00:46:30,599
a as a equally if not more corrosive

1351
00:46:26,239 --> 00:46:33,559
to a democratic republic rule of law is

1352
00:46:30,599 --> 00:46:35,519
failure of private law to achieve the

1353
00:46:33,559 --> 00:46:38,119
private ordering that people are

1354
00:46:35,519 --> 00:46:40,199
seeking. When they when someone thinks

1355
00:46:38,119 --> 00:46:41,639
they've got a deal and they don't, they

1356
00:46:40,199 --> 00:46:43,000
think they've got a business arrangement

1357
00:46:41,639 --> 00:46:44,879
and they don't, they think there's

1358
00:46:43,000 --> 00:46:46,599
private sharing and they don't, they

1359
00:46:44,880 --> 00:46:47,920
think they have a trust and they don't,

1360
00:46:46,599 --> 00:46:50,000
they think they've made a will so

1361
00:46:47,920 --> 00:46:51,920
Christina Fontnew doesn't get one penny

1362
00:46:50,000 --> 00:46:55,079
and they don't.

1363
00:46:51,920 --> 00:46:58,760
When that happens, it is corrosive to

1364
00:46:55,079 --> 00:47:00,679
rule of law as much so as checks and

1365
00:46:58,760 --> 00:47:02,359
balances whatever else cuz that's not

1366
00:47:00,679 --> 00:47:03,879
what people are watching. People are

1367
00:47:02,358 --> 00:47:05,799
trying to make payroll, they're trying

1368
00:47:03,880 --> 00:47:07,800
to make they're trying to buy groceries,

1369
00:47:05,800 --> 00:47:10,440
they're trying to make rent. And when

1370
00:47:07,800 --> 00:47:11,680
private law fails them, the law has

1371
00:47:10,440 --> 00:47:14,519
failed them.

1372
00:47:11,679 --> 00:47:17,919
So, your role is a as a lawyer to these

1373
00:47:14,519 --> 00:47:19,559
clients is to draft it right. Understand

1374
00:47:17,920 --> 00:47:21,159
what they're doing and make the forms

1375
00:47:19,559 --> 00:47:23,358
right. And as the lawyer in the

1376
00:47:21,159 --> 00:47:25,719
litigation, show the court the way. And

1377
00:47:23,358 --> 00:47:28,079
as the judge, find the way. And as the

1378
00:47:25,719 --> 00:47:31,439
legislator to fix it. And as the lawyer

1379
00:47:28,079 --> 00:47:33,880
to lobby. And if you do this and you

1380
00:47:31,440 --> 00:47:36,920
choose as a path private law and that

1381
00:47:33,880 --> 00:47:39,720
kind of practice, understand that you

1382
00:47:36,920 --> 00:47:42,760
are as if not more important to the

1383
00:47:39,719 --> 00:47:44,839
preservation of rule of law as anybody

1384
00:47:42,760 --> 00:47:45,840
else.

1385
00:47:44,840 --> 00:47:46,840
I was going to say something insulting

1386
00:47:45,840 --> 00:47:49,320
of a colleague. We're not going to do

1387
00:47:46,840 --> 00:47:50,519
that. It's being recorded. As anything

1388
00:47:49,320 --> 00:47:52,760
else

1389
00:47:50,519 --> 00:47:56,239
as anything I'm not going to do it.

1390
00:47:52,760 --> 00:47:59,400
Anything so hard. As anything else

1391
00:47:56,239 --> 00:48:01,279
as any It is absolutely is just as

1392
00:47:59,400 --> 00:48:03,280
essential to preservation of rule of

1393
00:48:01,280 --> 00:48:04,600
law. Okay, so I know people got 1:30. I

1394
00:48:03,280 --> 00:48:06,440
can stay and talk if people want to ask

1395
00:48:04,599 --> 00:48:07,839
questions or whatever, but I appreciate

1396
00:48:06,440 --> 00:48:09,119
you giving me this last chance and I

1397
00:48:07,840 --> 00:48:10,548
thank you for your patience and the

1398
00:48:09,119 --> 00:48:12,567
indulgence.

1399
00:48:10,547 --> 00:48:12,567
>> [applause]

1400
00:48:19,717 --> 00:48:21,737
[applause]

1401
00:48:29,920 --> 00:48:33,639
>> If anybody wants to ask Professor Oh,

1402
00:48:32,039 --> 00:48:36,000
raise your hand. I'll bring the mic.

1403
00:48:33,639 --> 00:48:36,000
Perfect.

1404
00:48:38,320 --> 00:48:41,359
Oh, in this in this conversation what

1405
00:48:39,960 --> 00:48:44,240
has changed in 10 years ago?

1406
00:48:41,358 --> 00:48:45,559
Um so, relative to the So, so I I I

1407
00:48:44,239 --> 00:48:47,358
think there are

1408
00:48:45,559 --> 00:48:50,119
two or three things that

1409
00:48:47,358 --> 00:48:52,119
that are different. So, one, when I uh

1410
00:48:50,119 --> 00:48:54,319
10 years ago, I told the story of how I

1411
00:48:52,119 --> 00:48:56,920
got into trusts and estates.

1412
00:48:54,320 --> 00:48:58,519
And including like drafting my mother's

1413
00:48:56,920 --> 00:49:00,320
will, which I'd never to talked about

1414
00:48:58,519 --> 00:49:02,159
that publicly before. My mother died

1415
00:49:00,320 --> 00:49:03,720
when I was 17 and so the reason I got

1416
00:49:02,159 --> 00:49:05,079
into trusts and estates. So, that story

1417
00:49:03,719 --> 00:49:06,599
is out there. I'm happy to repeat it

1418
00:49:05,079 --> 00:49:08,400
again if people want to hear it, but

1419
00:49:06,599 --> 00:49:11,400
like that was one a piece.

1420
00:49:08,400 --> 00:49:12,559
The other was um I uh

1421
00:49:11,400 --> 00:49:14,960
um

1422
00:49:12,559 --> 00:49:18,279
I did not feel I did not have the sense

1423
00:49:14,960 --> 00:49:20,199
10 years ago of um

1424
00:49:18,280 --> 00:49:22,560
uh

1425
00:49:20,199 --> 00:49:24,799
of the eclipsing of the importance of

1426
00:49:22,559 --> 00:49:26,480
private law in quite the same way I'm

1427
00:49:24,800 --> 00:49:28,400
feeling it now.

1428
00:49:26,480 --> 00:49:31,000
Right? So, as a turn And I also don't

1429
00:49:28,400 --> 00:49:34,079
think that I understood

1430
00:49:31,000 --> 00:49:36,320
uh I didn't have this feel for um

1431
00:49:34,079 --> 00:49:37,799
the role of the lawyer in these three

1432
00:49:36,320 --> 00:49:38,840
pieces. I mean, I talked about it, but I

1433
00:49:37,800 --> 00:49:40,240
didn't have it organized in that way.

1434
00:49:38,840 --> 00:49:42,480
So, the big difference is one is this

1435
00:49:40,239 --> 00:49:43,719
this eclipsing and the other is I didn't

1436
00:49:42,480 --> 00:49:45,480
like it's very it's customary in these

1437
00:49:43,719 --> 00:49:47,119
talks to tell your own story. I didn't

1438
00:49:45,480 --> 00:49:48,760
do that here. I'm happy to talk now if

1439
00:49:47,119 --> 00:49:50,159
you want to hear it, do it again, but

1440
00:49:48,760 --> 00:49:52,520
that those are the that's the quick

1441
00:49:50,159 --> 00:49:52,519
answer.

1442
00:49:55,760 --> 00:49:59,640
Does anyone other anyone else have any

1443
00:49:57,320 --> 00:50:02,400
other questions for Professor Sitkoff?

1444
00:49:59,639 --> 00:50:02,400
You're running class.

1445
00:50:05,079 --> 00:50:09,199
Great. Thank you so much for that. We

1446
00:50:06,519 --> 00:50:09,199
truly appreciate it.