[00:00] Well, good afternoon everyone. It is so
[00:02] amazing to see so many familiar faces,
[00:04] especially coming out of such an amazing
[00:06] barristers this past Saturday. Thank you
[00:09] all so much for being here. My name is
[00:11] Gabby Mestre. I'm one of your class of
[00:13] 2026 class marshals and it is a distinct
[00:16] honor to kick off our last lecture
[00:18] series today and introduce the brilliant
[00:21] Professor Robert Sitkoff. Professor
[00:23] Robert Sitkoff is the Austin Wakeman
[00:25] Scott Professor of Law and the John L.
[00:27] Gray Professor of Law. He's an expert in
[00:30] many many fields. Trust me, if I told
[00:32] you all of his accomplishments, I would
[00:34] be the one giving the lecture today and
[00:35] not him.
[00:37] Um, but he specializes in wills, trusts,
[00:39] estates, and fiduciary administration.
[00:41] Professor Sitkoff clerked for then Chief
[00:43] Judge Richard Posner of the United
[00:45] States Court of Appeals for the Seventh
[00:47] Circuit. He taught at both NYU and
[00:49] Northwestern before joining the Harvard
[00:51] Law School faculty in 2007, where he
[00:54] became the youngest professor to receive
[00:56] a chair in the history of the school.
[00:58] Professor Sitkoff has been published in
[01:01] leading scholarly journals such as the
[01:02] Yale Law Journal, the Stanford Law
[01:04] Review, the Columbia Law Review, the
[01:06] Journal of Law and Economics, and many
[01:08] many others. Professor Sitkoff is a
[01:10] co-author of Wills, Trusts, and Estates,
[01:12] the most popular American coursebook on
[01:14] Trusts and Estates, and he is a
[01:15] co-editor of the Oxford Handbook of
[01:17] Fiduciary Law.
[01:19] Professor Sitkoff's research has been
[01:20] featured in the New York Times, Wall
[01:22] Street Journal, and Financial Times,
[01:24] amongst other media.
[01:26] He's an active participant in Trusts and
[01:27] Estates law reform. He serves on the
[01:29] Uniform Law Commission as a commissioner
[01:32] for Massachusetts. He previously served
[01:34] as a member of several other drafting
[01:36] committees for Uniform Trusts and
[01:37] Estates Acts, including as chair of the
[01:40] drafting committee for the Uniform
[01:41] Directed Trust Act. And on a personal
[01:44] note, I took Professor Sitkoff's Trusts
[01:45] and Estates class last year and found it
[01:47] to be one of the best classes I've taken
[01:49] here at the law school. So, now, without
[01:52] further ado, I know none of you are here
[01:53] to hear me speak. Please help me in
[01:55] welcoming Professor Robert Sitkoff.
[01:58] >> [applause]
[01:58] >> Thank you.
[02:00] That's very kind. Thank you.
[02:04] Uh, well, thank you. That's a
[02:06] That's a very generous and kind um
[02:09] uh, introduction. Um
[02:13] So, let me say something about uh, what
[02:15] what you just said and then I'll get
[02:17] into some of the things I wanted to say.
[02:18] So, um, from time to time people make
[02:20] that comment about uh, the youngest
[02:22] chair. So, I'm going to tell you this
[02:23] the true story what actually happened.
[02:25] So, I was a visitor here in uh, spring
[02:27] of um
[02:29] uh, spring of 2007.
[02:31] Elena Kagan was the dean at the time.
[02:33] Uh, it was a good time to visit Harvard.
[02:35] It was a period of promiscuous hiring,
[02:37] so it was a good time to visit. And uh,
[02:39] anyway, the faculty had a meeting and
[02:42] voted my offer. Elena came to the office
[02:44] and she we talked for a while and then
[02:47] she got up to leave. You know by now
[02:49] Colombo? Like she turned at the door,
[02:50] she turned around, "Oh, one more thing.
[02:52] If you If you say yes, you'll be the
[02:54] John L. Gray uh, Professor of Law." I
[02:56] said, "Oh my goodness, that's that's
[02:58] amazing. That's really early in career.
[02:59] I'm 31." And I said, "That's pretty
[03:02] early to have a uh, chair. Oh my
[03:04] goodness." And she said, "Well, the the
[03:06] donor restricted it to a specialist in
[03:07] Trusts and Estates, what else am I
[03:08] supposed to do with it?"
[03:10] So, that's actually what what what
[03:12] happened. Okay, anyway, um, so I I thank
[03:14] you for inviting me to do this. It's
[03:17] it's a quite an honor. Um, one of the
[03:19] reasons I moved here now
[03:22] about 20 years ago was for you, for the
[03:25] students. Your curiosity and energy
[03:29] and engagement, uh, hunger to grow and
[03:31] learn has been exciting and really the
[03:33] best part of the job. It's made me a
[03:35] better teacher, a better scholar, better
[03:38] lawyer. You have over the years,
[03:41] including the last 2 years, held me
[03:42] accountable, forced me to think harder
[03:45] and deeper about uh, issues. A little
[03:47] bit later in this talk, I'm going to
[03:49] quote a line that one of you wrote in
[03:52] your exam and I've lifted and put in the
[03:54] casebook as it's a good it's a good
[03:56] line. But also, you have been um,
[03:59] unfailingly generous. As some of you
[04:01] know, the past year or two has been a
[04:04] little bit rough
[04:05] for me. My father died, I got a
[04:07] concussion, each of my three children
[04:09] had significant health issues, one
[04:11] needed a surgery. It's been a bumpy
[04:13] couple of years and throughout that
[04:15] whole period, you've all been
[04:17] People taking the classes in particular
[04:19] have been
[04:20] uncommonly generous and accommodating my
[04:23] bumpiness and not, you know, there was
[04:25] the one class I had to leave partway
[04:26] through to go lie down because of my
[04:28] head and whatever. And so thank you. So,
[04:31] last lecture, I mean, I hope it's not my
[04:34] last
[04:35] lecture. I mean, it could be, but that's
[04:37] not the, you know, hope for the best,
[04:38] but plan for the worst. That's my That's
[04:40] our field's motto. I don't think it's
[04:42] going to be the last. People are
[04:43] laughing. I mean that for real. Hope for
[04:45] the best, but plan for the worst.
[04:47] So, I I I don't think it's actually
[04:49] going to be the last lecture, but I do
[04:51] suspect that for many of you, this will
[04:53] be my last chance to indoctrinate.
[04:56] Right? The last chance to tell you some
[04:58] things that I think are important that I
[05:00] think will be are important to me for
[05:01] you to understand as you embark on being
[05:04] a lawyer, as you embark on the journey
[05:06] of the rest of your life. And I I hope
[05:09] it's not the last chance. I hope you
[05:10] will stay in in touch and reach out and
[05:13] email. Email's easy, right?
[05:15] I'm in Hauser or whatever, but I
[05:16] understand for many this will be.
[05:18] So, I I puzzled for a little while about
[05:20] what what could I tell you? You know,
[05:22] what what would I what would what would
[05:23] I want to do in this last lecture?
[05:25] So, the problem is I have a pretty
[05:27] narrow range of knowledge.
[05:29] I
[05:30] I
[05:31] I I know a lot about Trusts and Estates
[05:33] and fiduciary law. I also know about
[05:35] classic Star Trek, coaching Little
[05:37] League, and the Yankees,
[05:39] making pancakes. None of this seemed
[05:41] like really appropriate. So, I went back
[05:45] and I gave one of these some years ago.
[05:46] Was it 10 years ago? I looked at that
[05:48] video and I I thought, "What have I
[05:50] learned since then?" And first thing
[05:52] came to mind was how to do colonoscopy
[05:54] preps.
[05:56] But that seemed like not also what we
[05:58] should do uh
[06:00] We could, if we we maybe the Q&A, we can
[06:02] uh
[06:03] So, my family said, "Don't talk about
[06:05] colonoscopy." So, I win. There I did it.
[06:07] Uh,
[06:08] so let me tell you what I did. I I dug
[06:09] up the outline, dug up my notes from
[06:11] that. And what I was struck as I looked
[06:13] at those notes from all those years ago
[06:15] when I did one of these talks, what I
[06:16] was really struck by
[06:18] was the very different perspective, my
[06:20] very different understanding of what I
[06:22] told that class those years ago.
[06:24] Right? And so, what I want to do today,
[06:27] and that's reflects 10 years of growth,
[06:29] right? 10 years of learning, 10 more
[06:30] years of experience than you, 10 more
[06:32] years of just life.
[06:34] And so, what I want to do today is I'm
[06:37] going to talk about a variety several of
[06:39] the same things I talked about then, but
[06:41] from a refreshed lens with what is the
[06:44] current my current state of development.
[06:47] And in doing that, what I'm trying to
[06:48] model for you is the never-ending
[06:51] growth, right? The idea that you will
[06:53] continue to learn and develop as a
[06:55] lawyer, as a person, as a child, a
[06:58] sibling, a partner, whatever. The idea
[07:00] that you need to keep learning. You need
[07:02] to keep growing. You want to keep
[07:03] reevaluating what you think you know
[07:06] and look at these things afresh. So,
[07:08] here's what we're going to do. I'm going
[07:09] to tell you I'm going to try to tell you
[07:11] some things that I wish I knew. I wish
[07:14] that I knew when I was you. Right? When
[07:16] I was getting ready to graduate and go
[07:18] out. So, I want to tell you four things
[07:19] that I didn't really understand then and
[07:22] I think in truth, I didn't even really
[07:24] understand 10 years ago. I mean, I
[07:26] thought I did and I talked about them in
[07:27] that talk, but I understand them
[07:29] differently now and I'm sure in 10
[07:31] years, I'll understand them even
[07:32] differently then. But I want to talk to
[07:34] you about what I think I understand
[07:36] now.
[07:38] You don't have to accept my vision. You
[07:40] don't have to accept these things that
[07:41] I'm going to be telling you. I want to
[07:43] offer this as a kind of as a idea for
[07:46] you to take in and then absorb and do
[07:49] with what you wish. Right? Take this
[07:50] into the full body of your development
[07:53] as a person, as a lawyer, whatever else.
[07:56] But mostly, what I want to do is get you
[07:58] thinking. I want you to look at this as
[08:00] a broad picture. You're about to enter a
[08:02] learned profession. And that term
[08:05] learned for a learned profession has
[08:06] real meaning. Right? It's not just that
[08:08] we're self-regulating and the like. It's
[08:10] that it's a profession that requires
[08:13] study. It requires learning. People are
[08:16] coming to you for your learning and for
[08:18] what you can think, what you can do for
[08:21] them. And so, I want to push you a
[08:22] little bit. So, this is going to be a
[08:24] last lecture
[08:25] about the law and specifically law that
[08:29] you're going to be doing. And even more
[08:30] specifically, I'm going to tell you what
[08:33] I think is my what I'm going to tell you
[08:35] what is my understanding of the law that
[08:37] many of you are going to be doing and
[08:39] why it matters and what I think is your
[08:42] responsibility
[08:43] to your clients, to the practice of law,
[08:46] and to society
[08:48] as a member of this learned profession.
[08:51] And I think I narrow this into four
[08:53] takeaways, four buckets. Let me tell you
[08:55] what these four buckets what these four
[08:57] buckets are going to be. So, one is not
[09:00] a shock for people who took the class. I
[09:01] want to say a little bit about the
[09:02] relationship between public and private
[09:04] law.
[09:05] I want to say something about the
[09:06] relationship between public and private
[09:08] law. This is foundational. This is
[09:10] definitional. This is something that
[09:11] we're going to need to all have this
[09:13] conversation, which is not really a
[09:14] conversation, but it's the polite way to
[09:16] say it. So, to have this conversation,
[09:18] we need to have we need to have a common
[09:20] vocabulary. All right. The second thing
[09:22] is I want to say something about private
[09:24] law and private ordering, which is the
[09:26] law that most of you are going to be
[09:28] doing.
[09:29] And I want to tell you what I think it
[09:31] is that you'll be doing and why it
[09:33] matters. I want to say why it matters
[09:35] cuz I I think that's where rule of law
[09:38] really has power and I think that's
[09:40] where it affects people on the ground.
[09:43] So, the claim I'm going to be making is
[09:44] this is retail law.
[09:46] That private ordering, private law is
[09:48] retail law. This is what not just what
[09:50] most of you are going to be doing,
[09:52] but this is what many of your clients
[09:55] are coming to coming to you for in their
[09:58] day-to-day life.
[10:00] And I think it is unfairly denigrated in
[10:03] elite law schools. I think that we don't
[10:06] give enough attention and time to the
[10:08] significance of private ordering. We do
[10:10] not encourage you to go practice in this
[10:13] area. We don't congratulate you for the
[10:15] contributions you make in doing it, and
[10:17] yet we send most of you out to do that.
[10:19] And I think you should feel really good
[10:20] about it. I think it's absolutely
[10:21] essential. And I want to tell you why.
[10:24] Okay, the third bucket which follows
[10:27] from that is your role as lawyer. And I
[10:30] mean this on the one hand as a
[10:31] fiduciary.
[10:33] So, as a member of this learned
[10:34] profession to whom your client turns for
[10:36] help.
[10:37] But also in terms of your responsibility
[10:40] for what the law is going forward. It's
[10:42] a long tradition in these talks for
[10:45] folks up here to be telling you about
[10:46] your responsibility as a lawyer, but
[10:49] it's usually in a public law frame and
[10:51] at the end of the Republic as we know it
[10:52] unless you do something or another.
[10:55] So, I I I want to make a subtly
[10:56] different claim. I want to say that your
[10:58] role in um
[11:01] uh policing the reform of private law is
[11:05] absolutely essential to the development
[11:07] law and even more so now for a variety
[11:10] of developments in the nature of private
[11:13] law, increased codification, right? In
[11:16] the disfiguring of statutory
[11:19] interpretation because of public law
[11:21] battles and so on. So, I want to say a
[11:23] little bit about the role you're going
[11:24] to play and what that matters and that's
[11:26] the
[11:27] um
[11:28] public service aspect of being a member
[11:30] of a learned profession. There is a
[11:32] public service aspect in the private law
[11:35] domain also and that's the thing I want
[11:36] to talk about. All right. So, then
[11:38] there's number four. So, number four is
[11:40] going to be to tie these three together.
[11:42] I want to offer you a competing vision
[11:45] of rule of law.
[11:48] This is weirdly maybe a subversive
[11:50] notion of rule of law. I want to suggest
[11:54] rule of law as private ordering as
[11:57] private law.
[11:58] Right? So, instead of talking about rule
[12:00] of law as in the organization of civil
[12:02] society, people and the state, public
[12:04] law. I want to talk about rule of law
[12:06] from the standpoint of we order your
[12:08] personal and professional affairs with
[12:11] other people and we enforce it, we
[12:13] resolve it, we make it work through law
[12:16] rather than through baseball bats.
[12:19] Right? I'm going to talk about that kind
[12:20] of retail rule of retail rule of law.
[12:24] And so, this is private law these forms
[12:27] as
[12:28] rule of law and then the role of you, of
[12:31] lawyers, in making this all work.
[12:34] Okay, I say this is So, let's let's go
[12:36] through these first. So, first, what do
[12:37] I mean when I say public law?
[12:40] We say public law and private law. So,
[12:42] public law
[12:43] is constitutional law, administrative
[12:45] law, criminal law, and the like. This is
[12:48] the law that um
[12:49] organizes the state and your
[12:52] relationship to it. This is the
[12:53] organization of the state, right? The
[12:55] coercive power of the state and how this
[12:58] how this is going to operate. So, this
[13:00] is the front page news, right? This is
[13:02] where everyone's waiting everyone waits
[13:03] for Supreme Court decisions and writes
[13:05] about that every year. This is what gets
[13:07] these headlines. This is this notion
[13:09] that that um
[13:11] uh
[13:11] this is what's going to this is why we
[13:13] have a leg reg class. This is what if
[13:15] you pick up the Harvard Law Review is
[13:17] going to predominate its pages. This is
[13:19] what draws people because you know, you
[13:22] go to college, take political science,
[13:24] the Constitution exerts this
[13:25] gravitational pull on you. It's very
[13:27] exciting. It's lots of fun. It's fine.
[13:30] So, you and there's a long-standing
[13:33] history in these talks of um
[13:36] of
[13:38] expressions of worry about the current
[13:41] state of our civil society and whether
[13:44] our public law institutions will be able
[13:46] to abide given whatever crisis is at
[13:48] hand at one of these lectures. And an
[13:51] exhort and you are exhorted to engage
[13:55] with these problems because the Republic
[13:57] depends upon it and the whole order
[14:00] matters. And I'm not saying that's not
[14:02] that there's not something to it, but if
[14:04] you go back and you look at some of
[14:05] these lectures on YouTube, that's what
[14:07] this is that's what this is about. It's
[14:08] a critical moment in our constitutional
[14:10] republic and whatever else.
[14:13] But I also want to say that's not a new
[14:15] sentiment. So, I just took a minute on
[14:18] Google. I'm going to read you a line
[14:20] here.
[14:21] Um
[14:22] it is not to be disguised that we have
[14:23] arrived at a critical period of our
[14:25] country's history. And that the capacity
[14:27] of the people for maintaining a
[14:29] constitutional constitutional government
[14:31] is being subjected to a severer test
[14:33] than ever before.
[14:35] If, however, either the legislative or
[14:37] executive disregard the limits upon
[14:40] their power fixed by the people
[14:42] what we suppose to be a constitutional
[14:43] republic becomes the mere tyranny of the
[14:45] majority.
[14:47] Okay, that was from the inauguration
[14:48] speech of a of a governor of California
[14:50] in 1867.
[14:52] You know, I'm just saying I'm not trying
[14:54] to say that there aren't challenges
[14:56] today.
[14:58] I'm trying to say that the fact of
[15:00] challenges to the public civil order is
[15:03] not a new thing.
[15:05] Right? It's a perennial thing and it is
[15:07] an important thing and many people here
[15:10] focus on that and want to talk about it
[15:12] and I don't mean to say it's not
[15:14] significant. I just want to say it's
[15:16] kind of an evergreen
[15:18] problem.
[15:19] And it is
[15:21] I think unfairly eclipsed a different
[15:24] problem and that's the one I want to
[15:26] draw to your attention. That is the
[15:27] problem of confronted by private law.
[15:30] That's the law of organizing your
[15:32] relationships,
[15:34] your relationships with other people,
[15:36] with entities, with organizations.
[15:39] Right? This is the law of of private
[15:41] ordering, buying and selling things, of
[15:43] jobs, of organizing business, of forming
[15:46] a family.
[15:47] Under the organizations. You understand?
[15:49] This is retail law. This is your
[15:51] day-to-day This is your day-to-day
[15:54] life.
[15:55] In truth, this is the law that most
[15:57] people butt up with all the time. Right?
[16:00] So, we start a little bit late. Why? Cuz
[16:02] your Sweetgreen's delivery was a little
[16:03] bit late. Okay, is this a breach of
[16:05] contract? Are we going to deal with it?
[16:06] Every everything that's going on is all
[16:08] private ordering. Right? So, my nose on
[16:10] the side, you know, back in my day when
[16:12] I was in law school
[16:14] we just they gave us deep-dish pizza,
[16:16] which isn't even pizza, right? It's a
[16:17] soufflé. Pizza everything. It's not
[16:20] pizza. So, it's it's
[16:22] always always pizza whatever. This is
[16:24] kind of fancy. Anyway,
[16:26] whatever, it's Harvard. Okay, so
[16:28] when I say rule of law
[16:30] right? When I say rule of law, you're
[16:31] habitualized to think about like legal
[16:34] checks on the executive.
[16:36] Right? You're thinking about checks and
[16:37] balances. You're thinking about due
[16:39] process. You're thinking about
[16:40] deprivation of life liberty, or
[16:43] property, and and the like. But I want
[16:45] to suggest something cruder and more
[16:47] base. Right? Rule of law is
[16:51] an organized, predictable apparatus for
[16:55] dealing with breakdowns in private
[16:58] ordering.
[16:59] For being able to make private ordering
[17:02] and understanding that this isn't that
[17:04] it's not going to come apart. Do you
[17:06] understand? This organization not by
[17:08] force, by by rule of law. So, if I make
[17:11] a deal to have the Sweetgreen delivered
[17:13] and it's not, I'm not going to go with a
[17:15] baseball bat and beat up the manager
[17:16] there. That we have a way of resolving
[17:18] this way of resolving this dispute.
[17:21] Right? That as a there's an organized
[17:23] way to invoke the coercive power of the
[17:26] state to make sure the deal we struck,
[17:29] the organization that we made works.
[17:31] Okay, so let's take a step back. Let's
[17:33] be political theorists
[17:34] for a for just a a minute here. So,
[17:37] what's our point here? What's the point
[17:38] of organizing in civil society? Right?
[17:41] So, all this time we talk about the the
[17:43] constitutional republic is in danger and
[17:44] will fall or you know, whatever. Why do
[17:46] we care? Right? What's the point of the
[17:48] constitutional
[17:50] republic? Someone's like, I don't want
[17:51] to do Locke and Rousseau and whatever.
[17:53] That's that's fine. What I'm getting at
[17:55] The point I want to ask is why are we
[17:56] organizing that civil uh society? Right?
[18:00] Why do we care? Why do we want this
[18:02] this organized the state? Right? We
[18:04] don't organize the state just to have
[18:06] the state.
[18:07] Right? We don't organize the state to
[18:08] just have the state. The liberal and I
[18:10] mean like John Stuart Mill liberal,
[18:12] right? Like the um
[18:14] small L liberal. A liberal society
[18:17] the point of organizing the state is to
[18:21] facilitate
[18:22] private ordering.
[18:24] Right? It's to allow individuals to
[18:26] flourish and organize their affairs.
[18:27] Right? So, the John Stuart Mill idea of
[18:29] liberty is that my liberty is to the
[18:32] extent to the tip of your nose and we
[18:33] can organize I can organize around that.
[18:35] So, what's the idea of civil society? To
[18:37] police that. So, I got to erect this
[18:39] constitutional republic in order to
[18:41] what? In order to flourish.
[18:43] But what does flourishing mean to me?
[18:45] That doesn't matter. Right? That's my
[18:47] problem to go out and organize. Public
[18:50] law is the infrastructure that lets you
[18:52] then create the system of private law.
[18:55] In order to order your life. The port
[18:57] The point of the order society of
[18:59] liberty. Why is it so important you
[19:01] don't deprive me of liberty without due
[19:02] process? What is that liberty to go and
[19:04] organize my life, to marry or not, to
[19:07] build a business or not, to contract or
[19:09] not, whatever. All of these uh things.
[19:12] Any that is So, what if you think of the
[19:14] civil
[19:15] uh society as something more than that,
[19:17] you're actually profoundly illiberal
[19:20] in the classical sense. Because that's
[19:22] what it that was the idea of individual
[19:24] liberty. So, so that's our first point.
[19:26] Right? Public law, private law, that's a
[19:28] sketch of what this is about. On this
[19:31] view, the project of private law is as
[19:33] if not more important than the project
[19:35] of public law. Right? That's what we're
[19:37] trying to get to let people go and do
[19:40] their thing.
[19:42] Okay, so that brings us to our second
[19:44] our second bucket. Which is the role of
[19:47] private law. How does this work? What
[19:49] does private law do for us in private
[19:51] ordering?
[19:52] So, let's take a step back and think
[19:54] this probably would have been useful at
[19:55] the start of law school. Let's kind of
[19:57] think about what do I mean by this
[19:58] landscape. We'll start with the big
[19:59] three: property, contract, and tort.
[20:02] Right, let's start with a first
[20:03] approximate This isn't exactly correct,
[20:04] but it's roughly uh true. Let's just
[20:07] Let's just start with the basic baseline
[20:09] that you have a property right in your
[20:11] things and in your person. It's not
[20:13] exactly true, but roughly speaking, you
[20:16] have some kind of right to your body and
[20:19] your and your things.
[20:21] So, what's contract? That is consensual
[20:24] transfer of those rights.
[20:26] What is tort? That's non-consensual
[20:29] transfer of those rights.
[20:31] That's how it makes sense now, right?
[20:32] So, we've got We have your rights,
[20:34] that's property, and then we have a
[20:35] contract, that's how you you give it
[20:37] away for in a deal, or you've got uh
[20:40] tort, where after the fact we're filling
[20:43] in the deal cuz it was a non-consensual
[20:45] transfer. So, what's everything else?
[20:47] Everything else are specialized
[20:49] applications of that. Corporation, LLC,
[20:52] marriage, trust, um agency, partnership,
[20:57] wills, everything. They're all
[20:58] specialized applications of the general
[21:01] of the of the of the uh big three.
[21:04] They're all specialized forms, right?
[21:07] They all reflect specialized special
[21:09] instances of these uh problems.
[21:11] Well, what happens when the private
[21:12] ordering goes wrong, like really uh
[21:15] wrong? Right, well, one, there's, you
[21:16] know, criminal backup, or the other
[21:18] there's bankruptcy, right? So, now we've
[21:19] got some public backstops when this uh
[21:23] uh when this goes wrong. But when you
[21:24] think of it in this light, what's the
[21:26] project? The project is facilitative,
[21:29] not regulatory.
[21:31] Do you understand the little role of the
[21:32] lawyer now as like we This is old
[21:34] expression, lawyer is transaction costs
[21:36] uh engineer, lawyer to make this stuff
[21:39] uh work. The idea behind these these
[21:42] rules is facilitative, not regulatory.
[21:45] It's a really big deal for reasons we'll
[21:47] come to in a in a minute when we think
[21:49] about cases and we think about drafting
[21:51] statutes. The point I want to make now
[21:53] is if that um
[21:54] our idea is to allow people to order the
[21:57] way they want unless we have some policy
[21:59] reason not to let them do it.
[22:01] Now, there may be good public policy
[22:03] reasons why we're not going to let you
[22:04] do certain forms of of of private
[22:06] ordering. That's fine.
[22:08] But outside those areas, we want to
[22:10] facilitate. We want to make this work.
[22:12] So, go back to the machinery of all of
[22:15] these areas of law that you've uh
[22:17] learned.
[22:18] Right, there's generally speaking pieces
[22:21] that are for third parties.
[22:23] Third parties need to understand what's
[22:24] going on, and there are pieces for the
[22:26] people involved uh in the ordering.
[22:28] Everything you've learned
[22:30] and everything you'll be doing, I think,
[22:32] will make more sense in that framework.
[22:33] I'm going to give you examples.
[22:35] Right, all is very common across private
[22:37] law to see formation rules.
[22:40] You know what I mean I say formation
[22:41] rules? Like, how do you trigger this
[22:43] form? So, let's go back to contract.
[22:46] Think about contract for a minute.
[22:47] Offer, acceptance, consideration. Think
[22:50] of wills, writing, signature,
[22:51] attestation. Agency, you you you
[22:55] manifest an intent that someone else can
[22:57] bind you, or more recently, the written
[22:59] power of attorney because we want to be
[23:00] able to prove this. If it's a LLC or
[23:03] corporation that has limited liability,
[23:05] you are filing with the state. All these
[23:06] formation rules,
[23:08] what are they about, right? We are We're
[23:10] starting to see they're about how we
[23:11] signal to our
[23:13] our counterparty and third parties that
[23:15] we've created a form, right? What we are
[23:18] uh what we're doing.
[23:20] And what do you see inside all of these
[23:22] different areas of law? You see rules of
[23:24] governance or construction or default
[23:27] rules.
[23:28] So, you see how there's a common thread
[23:29] across them. What does that look like?
[23:31] Let's go back to contract. Do you
[23:33] remember Lady Lucy Duff Gordon? Right,
[23:35] exclusive dealing, where these So, where
[23:37] we read the contract to say, "Well,
[23:39] there's an implied duty of good faith
[23:41] and fair dealing."
[23:43] So, this isn't just Cardozo saying,
[23:44] "Well, I'm just going to make something
[23:45] up." That's facilitating. Well, these
[23:47] two people made a deal. I you're
[23:49] exclusive You're my exclusive seller.
[23:51] Well, the only way that deal makes sense
[23:53] is if you're going to make reasonable
[23:54] efforts to sell. So, I'm going to
[23:56] facilitate What is the probable intent
[23:58] of the people here? I'm not regulating
[24:01] their deal. I'm facilitating what their
[24:03] ordering is meant uh to be. In
[24:05] partnership, corporation, LLC, you'll
[24:09] see rules of profit sharing, of voting,
[24:11] of of um of preventing strategic
[24:14] behavior. Why? Well, these are all what
[24:16] we think are what the parties would have
[24:17] wanted. And to varying degrees, we let
[24:20] the parties say something else. But if
[24:22] they don't tell us something else, we
[24:23] give them these terms. Why? Because
[24:25] we've learned this is what they're
[24:26] trying to do. There's this It's kind of
[24:28] magical.
[24:30] Right, there's something uh
[24:31] astonishingly beautiful
[24:33] and magical that there is on the shelf
[24:36] all these forms that you do the right
[24:39] formation signal, right? You check the
[24:42] right boxes, you do offer acceptance
[24:44] consideration, you manifest an intent to
[24:47] with someone else to go into a business
[24:49] for profit, that's partnership. You file
[24:51] with the state, that's your corporation.
[24:53] You manifest an intent and give
[24:54] property, that's a trust that you Once
[24:56] you do the formation rule, you
[24:59] immediately get all of this stuff.
[25:01] That's not regulatory, it's
[25:02] facilitative. Trust fiduciary governance
[25:05] and trustee removal. Or here's another
[25:07] one. This is a little bit weird to think
[25:09] of it this way. Marriage.
[25:11] Marriage is a private ordering form.
[25:13] Right, what hap- What's marriage? You go
[25:14] through a formation ritual, right?
[25:16] There's a filing with the state, and
[25:19] then what do you get? You get a marital
[25:20] property regime, that's your default.
[25:23] You might like it or not, you can change
[25:25] it if you don't. And you get dissolution
[25:28] rules.
[25:29] Right, you have rules for dissolution
[25:31] during life, and you also get rules for
[25:32] dissolution at death. You might not like
[25:34] those rules, so you contract otherwise
[25:36] if you don't. Right? So, right, this is
[25:39] I This is a romantic vision, right? So,
[25:41] like since I said my wife, "Hey, let's
[25:43] have a long-term relational contract for
[25:45] horizontal integration or a household
[25:46] production function." Right, so under
[25:47] This is This is private ordering. Now,
[25:49] we'll have, you know, franchisees. It's
[25:52] private Do you understand private
[25:53] ordering? Okay. So, you don't have to
[25:56] reinvent every one of these things every
[25:59] time, right? The private law is
[26:00] providing that. What's your job as the
[26:02] lawyer? Your job as the lawyer is to
[26:05] understand the objective of the client.
[26:08] Figure out which one of those forms will
[26:11] get them closest to the objective, and
[26:14] then go
[26:16] make it right. Change default rules that
[26:18] don't fit. Do you see what I'm I'm
[26:20] getting at here at first approximation.
[26:22] That's not just a deal, right? That's
[26:24] your transactional side, right? Transact
[26:26] Many of you will be transactional
[26:27] lawyers. What you're doing is you're
[26:29] taking one of the forms, and you're
[26:31] jamming what people are trying to
[26:33] achieve into that form. So, every time
[26:36] that LLC agreement doesn't have a clause
[26:38] in it is a failure that is needed is a
[26:41] failure of lawyering. Not to understand
[26:44] that the form doesn't fit what they're
[26:45] trying to do. Every time the marriage
[26:48] comes asunder and it turns out those
[26:49] rules aren't right, it's a failure.
[26:51] Means that we should have we should that
[26:53] we didn't de- change those default rules
[26:55] to fit what the people uh wanted. Even
[26:59] tort, like let's use Goldberg, now Dean
[27:01] Goldberg, right? The Pa- his vision of
[27:02] tort, the Palsgraf principle, right?
[27:05] Tort is all about you have a right, and
[27:07] if somebody takes that right, you're in
[27:08] compensation. Non-consensual transfer.
[27:11] Well, what's his idea of the Palsgraf
[27:12] principle? That it has to be
[27:14] foreseeable, right? If it's not
[27:15] foreseeable, you're taking someone
[27:17] else's right. Do you understand? That's
[27:18] just we're filling in what the contract
[27:20] would have been. We're giving you
[27:21] compensation for what was uh taken.
[27:25] So, on this view,
[27:27] on this view, the private law is just a
[27:29] set of forms. They're forms that to
[27:30] varying degrees
[27:32] uh
[27:33] let you organize, and to varying
[27:36] degrees, let you customize the
[27:38] off-the-shelf form to get at what you're
[27:40] trying uh to do. I understand there are
[27:43] problematic edge cases, right? We do
[27:44] them in class, that's what's fun, right?
[27:46] So, in a contracts class, that's Hammer
[27:48] and Sidway, that's promises not to
[27:50] smoke. And in my class, that's, well, is
[27:53] I'm going to give the manuscripts to the
[27:55] Hebrew University in Jerusalem, is that
[27:57] declaration of trust? Is that a gift?
[27:59] Because a gift to the Those are
[28:01] problems with formation.
[28:04] Right, those are formation problems, and
[28:05] you get a good lawyer involved, we'll
[28:07] solve it, right? We'll find a form, and
[28:10] we'll uh uh uh jam you uh jam you in.
[28:13] Right? Okay. Another way of uh getting
[28:15] at this cuz, you know, Passover is uh
[28:17] coming. When I was in law school, one of
[28:18] my law school classmates invited me to
[28:20] her family's for a Passover. They had a
[28:22] tradition. Their tradition is you had to
[28:24] interrupt the Seder at some point and
[28:26] make some unique contribution. So, what
[28:29] I did was when they did the four
[28:30] children, the four questions, you know,
[28:32] they had the different questions, I
[28:33] chimed in as, "I got a fifth child, a
[28:35] Chicago-trained uh child." The
[28:37] Chicago-trained child asks, "Isn't
[28:40] Weren't the 10 plagues just a really a
[28:41] failure in private ordering and
[28:43] enforcement mechanisms that if we had
[28:45] had a enforcement regime, we wouldn't
[28:47] have need to like kill all the firstborn
[28:49] in whatever uh uh Do you understand?
[28:50] Like, that's what hap- It's funny, but
[28:52] also,
[28:54] that's what happens we don't have
[28:56] enforceable private ordering forms. You
[28:59] have to slaughter people's children to
[29:01] get them to comply. I mean, that maybe
[29:02] hit him with a baseball bat. You This is
[29:04] an ordered society is about making
[29:07] ordering uh uh work. Okay, so that takes
[29:10] us to the third point, third point I
[29:12] want to talk about, which is your role.
[29:14] So, I've already talked about your roles
[29:16] as fiduciary for your client, but also,
[29:20] as a member of a learned profession,
[29:22] meaning obligation to society. And I
[29:25] want to suggest that obligation is not,
[29:26] you know, defending the republic from
[29:28] falling, you know, whatever. I I mean,
[29:30] that's important.
[29:32] But also, making this stuff work so
[29:35] within the society, we can flourish.
[29:37] Each person can flourish however they
[29:38] want. So, we've talked about one of
[29:40] those,
[29:41] which is being alert to the objective of
[29:44] the client. That means listening.
[29:46] Do you understand? That means like a
[29:47] good lawyer is a counselor Uh at law.
[29:50] You're listening. You're getting what
[29:51] they're trying to achieve and helping
[29:54] the client get the right form and
[29:56] customizing the form. Good transactional
[29:59] work involves listening
[30:01] with an empathetic ear, really getting
[30:04] the objective, counseling the client on
[30:06] the ways to get there, and making that
[30:08] form fit the circumstances. That's one
[30:11] we've been emphasizing. I want to talk
[30:12] about two others.
[30:14] One is
[30:16] when
[30:17] dealing with private ordering gone awry.
[30:21] So now we're talking about litigation
[30:22] and lawyering and in court and also
[30:24] judging.
[30:25] And the third is going to be your
[30:27] responsibility for making the law for
[30:29] making law work.
[30:31] So here's what I'm going to do. I want
[30:32] to go back to this new case, a favorite
[30:34] it's a favorite case. I just started at
[30:36] teaching this. But we're going to do
[30:37] this and some of you have seen it, but
[30:38] we're going to do it differently now cuz
[30:40] we're a different prism. Remember this
[30:41] guy? So this is Beck, right? This is the
[30:44] Beck case from Montana. For those who
[30:46] don't know what happened here, so this
[30:48] guy Beck is in his truck and I takes his
[30:51] iPhone, he makes a recording, right?
[30:54] Takes his iPhone, he makes a recording.
[30:57] Give all my possessions. If anything
[30:59] happens to me whatsoever, I give all my
[31:02] possessions, everything to Jason Beck,
[31:06] my brother.
[31:08] I don't think I'll find out that night
[31:10] get one thing.
[31:12] Not one thing.
[31:15] Okay. So
[31:17] we understand what's going on here? Now,
[31:19] he's trying to he's trying to order his
[31:21] affairs.
[31:22] Do you understand what I So here we have
[31:24] a member of our civil society who is
[31:26] exercising that right that we want
[31:28] everybody in our society to have to
[31:30] order his affairs, right? This This is I
[31:33] is manifesting testamentary intent. I
[31:35] don't Nobody's going to just I don't
[31:36] think everybody does Anybody disagree
[31:37] here? He's This guy is telling us what
[31:39] he wants to happen to his property when
[31:42] he dies. Now, if he came to you once
[31:45] you're licensed or he came to me, I am
[31:47] licensed. If
[31:49] if it came to you, came to me it comes
[31:51] to me, what would we do? Well, I know
[31:53] the forms, right? I'm like, "Oh, we're
[31:54] going to tell her this. We can do a
[31:55] revocable trust. We can do a will." We I
[31:57] got lots of forms. And I can make it fit
[32:00] and I can do this right and I can make
[32:01] sure Christina Fontenot doesn't see a
[32:03] penny. No problem. Good to go, right?
[32:06] But he didn't.
[32:08] Right? Didn't have a a lawyer there,
[32:10] right? So there was no transactional
[32:12] lawyer involved. So where are we now?
[32:14] Well, the lawyer's involved after he
[32:16] dies when his brother brings this to
[32:18] court. When his brother brings this to
[32:20] court and wants to a probate it. So now
[32:23] remember I said we have three spots. One
[32:24] is the client comes to you, we're going
[32:26] to help them order. Second is it gets
[32:28] busted and now we're in court. So what
[32:31] can we do when we're in court? Here the
[32:33] claim I want to make
[32:35] is that our grand debates about
[32:37] constitutional structure, about public
[32:39] law have disfigured
[32:41] our reasoning in private law cases.
[32:44] Right? We are we're bringing the wrong
[32:46] We're bringing an inappropriate
[32:47] methodology to these cases. So here's
[32:49] the statute at issue. Here's the statute
[32:52] in this case.
[32:54] A document or a writing added upon a
[32:56] document
[32:58] is probatable if there's clear and
[33:00] convincing evidence the decedent
[33:02] intended the document to be his will.
[33:05] Everybody agrees this guy meant for the
[33:07] for the for the video to be a will.
[33:09] Right? The court says so in the
[33:10] decision. This this reflects the
[33:12] testamentary intent. Nobody's doubting
[33:13] that he wants this video to be his will.
[33:16] It's a statutory interpretation case. Is
[33:18] the recording a document? Is the
[33:21] recording a document or a
[33:24] writing upon a document?
[33:26] That's the question.
[33:28] Okay, that's that's fine. So let's do
[33:30] the internal and then the external.
[33:31] Here's how the court resolved the case.
[33:33] The court says well, the statute is
[33:34] clear and unambiguous.
[33:37] It's always a warning, right? When we
[33:38] say a statute is clear and unambiguous.
[33:40] Statute is clear and unambiguous. It
[33:42] doesn't that the the video is not.
[33:45] Okay, why? Well, it says document or a
[33:48] writing upon a document. So to be a
[33:50] document, you must be capable of having
[33:53] writing put upon it.
[33:55] There's no It's Well, there's a
[33:56] recording. You can't put a writing upon
[33:58] that. So writing has to A document must
[34:01] be something that has writing on it.
[34:03] A document is not a document if it
[34:05] doesn't have a writing upon it. So this
[34:07] is not that, says the court. That's one
[34:10] argument. Secondly, the court says also
[34:12] we see that our that there's this
[34:14] uniform uniform electronic
[34:16] wills act, which our state has not
[34:19] adopted.
[34:20] But it says to be an electronic will, it
[34:23] has to be readable as text. And this is
[34:25] not readable as text. So that reinforced
[34:27] our conclusion that's definitely not.
[34:29] Okay, that's how the court answers this
[34:30] question. Do you see how the the mode of
[34:32] reasoning here?
[34:33] This is about limiting power.
[34:36] Do you see this very public law way of
[34:37] thinking? It's the claim I want to make.
[34:39] This about protecting, about limited
[34:41] power, about well, I'm concerned about
[34:44] the coercive power of the state. None of
[34:45] that's an issue here, right?
[34:47] This is a facilitative statute.
[34:50] This is when I have overwhelming
[34:51] evidence that the thing was meant to be
[34:53] a will, it should be a will.
[34:55] Now, I'm not saying that it's clear that
[34:57] the right that the video is in or the
[34:58] video is not in. I'm just saying there's
[35:00] nothing like that there. It's a right?
[35:03] The claim I'm making is the
[35:04] preoccupation with public law
[35:07] obscured from the court what to do. And
[35:09] the court wants to think that it's super
[35:11] textualist, right? A writing or document
[35:14] of a writing upon a document and how
[35:15] it's reasoning. And then of course it
[35:17] makes this totally non-textual turn to
[35:19] start reading a statute that was never
[35:20] even adopted.
[35:22] That was never even adopted, right?
[35:24] Okay. What would be another way to think
[35:26] about the Let's do another way to think
[35:28] of this. So here's the one One of you, I
[35:30] don't know if it was in this room.
[35:31] Somebody in their exam wrote this.
[35:34] Well, if you have a statute that says a
[35:36] farm animal or a person riding upon a
[35:39] farm animal doesn't make chickens no
[35:41] longer farm animals cuz you can't ride a
[35:43] chicken.
[35:44] Right? A Suppose you have a statute that
[35:46] says farm animals or people riding upon
[35:49] farm animals. Well, you can't be a farm
[35:51] animal then if people don't ride you.
[35:53] But isn't that exactly what this court
[35:55] just said?
[35:56] Right? If chickens are still farm
[35:57] animals under the under this student
[35:59] statute, then maybe riding then
[36:01] documents can be documents even if they
[36:03] can't have writings upon them.
[36:05] I know actually. I I know that the
[36:09] drafter of this statute did not mean
[36:11] document or writing upon a document to
[36:13] signal that document means only things
[36:16] writing about it cuz it was my friend
[36:18] Larry Waggoner at the University of
[36:19] Michigan who wrote it. And what he was
[36:21] thinking about were all these wills
[36:23] where people scratched something out and
[36:25] they wrote something else in by hand.
[36:27] That's what he thought.
[36:29] And if you were willing to approach this
[36:31] case from a different framework instead
[36:33] of the disfiguring of public law,
[36:36] instead if you came at this as this a
[36:38] facilitative statute, it's actually a
[36:40] uniform act that has a history, where
[36:41] did it come from, maybe it decided
[36:43] differently, maybe not.
[36:45] It's actually very I mean a hard
[36:47] question whether videos fall under the
[36:49] statute. But that would be the
[36:50] conversation you would be having.
[36:53] I don't mean to say to be clear, I don't
[36:56] mean to And let me just say one other
[36:57] thing. It's I don't even think the
[36:58] court's right. I mean we know this,
[37:00] right? That a video has like you're all
[37:01] on TikTok. You all know videos can have
[37:03] writing upon them.
[37:04] You understand like if the guy just
[37:05] turned on closed captioning, then we
[37:07] would probate it?
[37:09] That's really weird, right? That's we
[37:11] hold today that our legislature decided
[37:14] that if you turn closed captioning on,
[37:16] video will is good, but if you don't,
[37:17] video will is not.
[37:19] When it when it adopted this uniform act
[37:22] that was drafted in late '80s.
[37:25] Like I'm I I'm I was there in the late I
[37:27] mean I remember the late '80s.
[37:29] We had camcorders like this. Do you know
[37:31] what I mean? There was no
[37:33] closed caption. It's not how that
[37:35] worked. Okay. So here's another What So
[37:37] what could we do to What could we do to
[37:40] What could we do to to try to defend the
[37:42] decision? Here's another way to think of
[37:43] the decision.
[37:44] What you might have said was you might
[37:47] say, "You know what? This statute is
[37:49] from 1990. It was drafted by the Uniform
[37:51] Law Commission in the 1980s. Nobody in
[37:54] that in this period would have thought a
[37:55] video would have been acceptable. But
[37:57] today lots of people are recording all
[38:00] the time.
[38:01] They are going around making
[38:02] documentaries,
[38:05] right? They are recording what's
[38:07] happening and our statute seems out of
[38:10] date, but this is a big giant public
[38:12] policy question whether or not we're
[38:13] comfortable facilitating, whether this
[38:15] is a form that we want to recognize,
[38:18] whether we think the social costs of
[38:20] enforcing these forms are worth it, and
[38:22] that's too big for me as a judge. I'm
[38:23] kicking that to the legislature." That
[38:25] would be a totally reasonable way to go,
[38:28] right? That's fine. It's not what the
[38:29] court's saying.
[38:31] The court's decision is all internal,
[38:33] right? It's all pretend. It's all well,
[38:35] the statute clearly answers the
[38:37] question.
[38:39] Maybe not. Maybe it does, maybe it
[38:41] doesn't. Maybe this is a different Maybe
[38:42] what I'm describing is really what it's
[38:43] about. Okay, so here's a joke that Dick
[38:45] Posner told me when I was clerking. So
[38:48] it's like ever so slightly off color,
[38:50] but only ever so slightly, so it's okay.
[38:52] So I Here we go, right? Okay. Guy's
[38:54] walking down the street
[38:56] and he comes to this storefront and
[38:58] there
[38:59] flowers and art and pictures and
[39:01] beautiful things in the in the window.
[39:04] And the thing says, you know, it's
[39:06] Moshi's Mohel Services. A mohel is
[39:08] someone who does the bris, who does the
[39:10] circumcision in Jewish tradition.
[39:13] So guy goes in the store and he says,
[39:14] "W- Why you're a mohel? Yes, you do the
[39:17] brises, you do the circumcisions?"
[39:19] That's right. "Well, why do you have
[39:20] flowers and pictures and all this stuff
[39:22] in your in your window front?" He says,
[39:23] "Well, what would you have me put
[39:24] there?"
[39:26] Okay. What
[39:28] And now you understand about Judge
[39:29] Posner's
[39:30] view of opinions. So the
[39:33] What do you want the court to say?
[39:35] Right? Like
[39:37] this is a hard problem whether or not to
[39:39] recognize video wills, right? But I
[39:41] don't think you're helping anybody by
[39:43] doing this kind of this this mendacious
[39:46] statutory interpretation. That's not
[39:48] even true on its own terms. It's not
[39:50] even true uh on its own terms.
[39:53] So, okay. Well, if you do this word if
[39:55] you're going where I want to go, which
[39:56] is either you're going to say, "Look,
[39:57] this is a facilitative statute and uh I
[40:00] could read it both ways. I don't see any
[40:02] policy reason not to let someone do
[40:04] this. So, I'm going to let them do this
[40:05] till legislature stops me."
[40:07] Cuz it's a facilitative statute. I don't
[40:09] see any Okay, that's what I would do if
[40:11] I was the judge. You don't have to. You
[40:12] can go the other way. You might want to
[40:14] say, "Well, I'm going to kick it to the
[40:15] legislature." Which brings me to the
[40:16] last point, the last thing I want to
[40:18] say, which is "Well, that's fine."
[40:21] Right? That's fine. We're going to kick
[40:22] it to the legislature.
[40:24] But then without us, without you,
[40:26] without the learned profession doing law
[40:29] reform, I think it's a hopelessly naive
[40:31] understanding of the political
[40:32] structure.
[40:34] Never in the history of the world has
[40:37] anyone run for governor or state
[40:39] legislature saying, "Vote for me because
[40:42] I'm going to update the law of wills to
[40:44] account for new electronic stuff."
[40:47] "Put me in Congress because I'm going to
[40:49] fix revocation on divorce in ERISA."
[40:52] "Vote for me because I've observed that
[40:54] the spousal forced share, which is part
[40:57] of the default rules of the marriage
[40:58] form, no longer aligns with the rise of
[41:01] non-probate."
[41:02] Do you know who knows that? We.
[41:05] The members of the learned profession
[41:07] who who help people with the forms and
[41:11] walk them through. We see where the
[41:13] problems are with the forms and when we
[41:15] can't draft around them.
[41:17] Or we have people who don't know to
[41:20] draft around them.
[41:22] This is not just about responsibility
[41:24] for keeping the law updated, but it's
[41:25] also about legitimacy.
[41:28] Right? There's a horizontal equity point
[41:30] here. And I don't just mean about wealth
[41:32] or access to lawyers. So, here's a text
[41:36] message a student of mine got some years
[41:37] ago. People you've seen this before.
[41:39] Getting on some flights with dad, we
[41:41] realize we don't have a will.
[41:44] If anything happens and it won't, mom
[41:46] lies.
[41:48] Things bad things can and do happen.
[41:50] Please be uh
[41:51] and please be executor and divide all
[41:54] things equal. Don't know if this would
[41:55] count, but it's the best I can do.
[41:59] Love you and miss your face. So, there's
[42:02] your authenticity cuz that's a mom. Only
[42:05] I miss your face.
[42:07] It's fine, right?
[42:09] Uh
[42:10] This one satisfies the statute.
[42:14] Because it's a writing.
[42:16] So, video, no go. This one does.
[42:21] What is the principal distinction
[42:24] between those cases?
[42:26] Right? That's just I'm going to claim
[42:28] it's I want to argue it's an arbitrary
[42:30] distinction. It's a horizontal
[42:32] inequality. Like Like efforts at private
[42:36] ordering are being treated unlike.
[42:39] Right? It's an arbitrary way. And so, we
[42:42] want to we want to fix that. So, that
[42:43] brings me to the last thing I want to
[42:45] the last thing I want to talk about,
[42:47] which is
[42:48] this rule of law. So, the you're all the
[42:51] time you're going to hear at graduation
[42:53] and these other last lecture all the
[42:54] time you're going to hear about rule of
[42:55] law is endangered and you have to
[42:57] protect the constitutional order and on
[42:59] and on and on. It's fine. I mean I I
[43:01] mean it's not wrong that we need to have
[43:03] that. But that's that's just the
[43:05] predicate
[43:07] to what matters to people on a retail
[43:10] level. What matters to mom here is if
[43:14] that plane crashes, he's the executor is
[43:16] the executor and things are split
[43:18] evenly.
[43:19] Right? That's what she's looking for.
[43:21] So, what do you do as I want to suggest
[43:23] that the the further obligation is to
[43:29] get these things fixed.
[43:31] Right? There's another conception of
[43:33] public interest public service and that
[43:36] is the private law reform apparatus.
[43:39] There's a lot of versions of it. There's
[43:40] the American Law Institute and the
[43:42] restatements. There's Uniform Law
[43:43] Commission and Uniform Acts. But there's
[43:46] your local bar associations and the
[43:47] various committees that bring the
[43:49] statutes to the legislature.
[43:51] So, how do these little tweaks happen?
[43:53] How does the partnership law of whatever
[43:55] state, the LLC law, the divorce law, the
[43:58] marriage law, the trust law, the wills
[44:00] law, the contract law, how do these
[44:02] things get changed? It's ALI, it's ULC,
[44:04] it's local bar groups going to the local
[44:07] legislature saying, "We have this
[44:09] problem we need to fix it." Well, who
[44:10] opposes? Nobody.
[44:12] Why aren't we done yet? Nobody knows.
[44:14] This is just what we need to make things
[44:15] work. You see where I what the the the
[44:17] point I want to I'm trying to make here?
[44:20] Okay. So, here's here's an example.
[44:23] Right? Here's an example. So, people
[44:24] already know My father died a year and a
[44:26] half ago. He lives in he lived in New
[44:27] York.
[44:28] I'm the fiduciary of everything. I live
[44:30] in Massachusetts. I have a brother. He
[44:32] lives in Florida.
[44:34] Okay, you understand? That's a conflicts
[44:36] of law problem.
[44:38] It's a conflicts of law problem. I got a
[44:39] will and a trust from New York. I got an
[44:42] a fiduciary in Massachusetts. I got a
[44:44] beneficiary in Florida. It's a conflicts
[44:47] of law problem. Okay. It turns out that
[44:49] conflicts of law and trusts is is all
[44:52] derived from the second restatement
[44:53] written by Austin Wakeman Scott, you
[44:55] know, of
[44:56] Harvard Law School.
[44:57] And none of it works anymore.
[45:00] Right? None of it works anymore because
[45:01] it's all based on uh testamentary trust.
[45:04] It's based on territorial contacts.
[45:08] None of this works anymore.
[45:09] And nobody knows, right? Course continue
[45:12] to follow the second restatement we're
[45:14] getting increasingly bizarre decisions.
[45:16] The American Law Institute and Uniform
[45:17] Law Commission are doing new projects to
[45:19] have a new restatement or new uniform
[45:20] act. And they're completely rewritten to
[45:23] reflect the realities of on the ground
[45:26] practice now. Right? So, I'm the chair
[45:28] of the drafting committee for the
[45:29] Uniform Act. Kim Roosevelt University of
[45:31] Pennsylvania is the reporter for the for
[45:33] the restatement. Right? And so, we're
[45:35] coordinating. So, why? What's the
[45:37] purpose of that? Well, because like it's
[45:39] not so weird to see people die with
[45:42] family in another state.
[45:44] It's not so weird anymore. So, okay. Why
[45:47] is that important to me? It's important
[45:49] to me because I want to see that right.
[45:52] Want to see that right cuz that's a
[45:53] thing people are trying to do. And so,
[45:55] the claim, the thing I'm trying to
[45:57] suggest I'm mindful that I got to keep
[45:59] this
[46:00] tight cuz people got to get to their
[46:01] classes and if we can open the door to
[46:02] questions.
[46:03] The claim I'm trying to make is that
[46:05] this matters to people on a retail
[46:07] level. I'm not denying the preservation
[46:10] of the constitutional order and checks
[46:12] and balances and due process. That's
[46:15] important, obviously. It's predicate.
[46:17] I'm suggesting that on a retail level
[46:21] a as a equally if not more corrosive
[46:26] to a democratic republic rule of law is
[46:30] failure of private law to achieve the
[46:33] private ordering that people are
[46:35] seeking. When they when someone thinks
[46:38] they've got a deal and they don't, they
[46:40] think they've got a business arrangement
[46:41] and they don't, they think there's
[46:43] private sharing and they don't, they
[46:44] think they have a trust and they don't,
[46:46] they think they've made a will so
[46:47] Christina Fontnew doesn't get one penny
[46:50] and they don't.
[46:51] When that happens, it is corrosive to
[46:55] rule of law as much so as checks and
[46:58] balances whatever else cuz that's not
[47:00] what people are watching. People are
[47:02] trying to make payroll, they're trying
[47:03] to make they're trying to buy groceries,
[47:05] they're trying to make rent. And when
[47:07] private law fails them, the law has
[47:10] failed them.
[47:11] So, your role is a as a lawyer to these
[47:14] clients is to draft it right. Understand
[47:17] what they're doing and make the forms
[47:19] right. And as the lawyer in the
[47:21] litigation, show the court the way. And
[47:23] as the judge, find the way. And as the
[47:25] legislator to fix it. And as the lawyer
[47:28] to lobby. And if you do this and you
[47:31] choose as a path private law and that
[47:33] kind of practice, understand that you
[47:36] are as if not more important to the
[47:39] preservation of rule of law as anybody
[47:42] else.
[47:44] I was going to say something insulting
[47:45] of a colleague. We're not going to do
[47:46] that. It's being recorded. As anything
[47:49] else
[47:50] as anything I'm not going to do it.
[47:52] Anything so hard. As anything else
[47:56] as any It is absolutely is just as
[47:59] essential to preservation of rule of
[48:01] law. Okay, so I know people got 1:30. I
[48:03] can stay and talk if people want to ask
[48:04] questions or whatever, but I appreciate
[48:06] you giving me this last chance and I
[48:07] thank you for your patience and the
[48:09] indulgence.
[48:10] >> [applause]
[48:19] [applause]
[48:29] >> If anybody wants to ask Professor Oh,
[48:32] raise your hand. I'll bring the mic.
[48:33] Perfect.
[48:38] Oh, in this in this conversation what
[48:39] has changed in 10 years ago?
[48:41] Um so, relative to the So, so I I I
[48:44] think there are
[48:45] two or three things that
[48:47] that are different. So, one, when I uh
[48:50] 10 years ago, I told the story of how I
[48:52] got into trusts and estates.
[48:54] And including like drafting my mother's
[48:56] will, which I'd never to talked about
[48:58] that publicly before. My mother died
[49:00] when I was 17 and so the reason I got
[49:02] into trusts and estates. So, that story
[49:03] is out there. I'm happy to repeat it
[49:05] again if people want to hear it, but
[49:06] like that was one a piece.
[49:08] The other was um I uh
[49:11] um
[49:12] I did not feel I did not have the sense
[49:14] 10 years ago of um
[49:18] uh
[49:20] of the eclipsing of the importance of
[49:22] private law in quite the same way I'm
[49:24] feeling it now.
[49:26] Right? So, as a turn And I also don't
[49:28] think that I understood
[49:31] uh I didn't have this feel for um
[49:34] the role of the lawyer in these three
[49:36] pieces. I mean, I talked about it, but I
[49:37] didn't have it organized in that way.
[49:38] So, the big difference is one is this
[49:40] this eclipsing and the other is I didn't
[49:42] like it's very it's customary in these
[49:43] talks to tell your own story. I didn't
[49:45] do that here. I'm happy to talk now if
[49:47] you want to hear it, do it again, but
[49:48] that those are the that's the quick
[49:50] answer.
[49:55] Does anyone other anyone else have any
[49:57] other questions for Professor Sitkoff?
[49:59] You're running class.
[50:05] Great. Thank you so much for that. We
[50:06] truly appreciate it.