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