WEBVTT 00:00:00.000 --> 00:00:04.839 Well, good afternoon everyone. It is so 00:00:02.520 --> 00:00:06.919 amazing to see so many familiar faces, 00:00:04.839 --> 00:00:09.039 especially coming out of such an amazing 00:00:06.919 --> 00:00:11.280 barristers this past Saturday. Thank you 00:00:09.039 --> 00:00:13.239 all so much for being here. My name is 00:00:11.279 --> 00:00:16.919 Gabby Mestre. I'm one of your class of 00:00:13.240 --> 00:00:18.759 2026 class marshals and it is a distinct 00:00:16.920 --> 00:00:21.040 honor to kick off our last lecture 00:00:18.760 --> 00:00:23.400 series today and introduce the brilliant 00:00:21.039 --> 00:00:25.799 Professor Robert Sitkoff. Professor 00:00:23.399 --> 00:00:27.679 Robert Sitkoff is the Austin Wakeman 00:00:25.800 --> 00:00:30.000 Scott Professor of Law and the John L. 00:00:27.679 --> 00:00:32.679 Gray Professor of Law. He's an expert in 00:00:30.000 --> 00:00:34.280 many many fields. Trust me, if I told 00:00:32.679 --> 00:00:35.799 you all of his accomplishments, I would 00:00:34.280 --> 00:00:37.000 be the one giving the lecture today and 00:00:35.799 --> 00:00:39.320 not him. 00:00:37.000 --> 00:00:41.920 Um, but he specializes in wills, trusts, 00:00:39.320 --> 00:00:43.920 estates, and fiduciary administration. 00:00:41.920 --> 00:00:45.719 Professor Sitkoff clerked for then Chief 00:00:43.920 --> 00:00:47.320 Judge Richard Posner of the United 00:00:45.719 --> 00:00:49.719 States Court of Appeals for the Seventh 00:00:47.320 --> 00:00:51.520 Circuit. He taught at both NYU and 00:00:49.719 --> 00:00:54.600 Northwestern before joining the Harvard 00:00:51.520 --> 00:00:56.440 Law School faculty in 2007, where he 00:00:54.600 --> 00:00:58.719 became the youngest professor to receive 00:00:56.439 --> 00:01:01.039 a chair in the history of the school. 00:00:58.719 --> 00:01:02.799 Professor Sitkoff has been published in 00:01:01.039 --> 00:01:04.359 leading scholarly journals such as the 00:01:02.799 --> 00:01:06.560 Yale Law Journal, the Stanford Law 00:01:04.359 --> 00:01:08.159 Review, the Columbia Law Review, the 00:01:06.560 --> 00:01:10.320 Journal of Law and Economics, and many 00:01:08.159 --> 00:01:12.560 many others. Professor Sitkoff is a 00:01:10.319 --> 00:01:14.319 co-author of Wills, Trusts, and Estates, 00:01:12.560 --> 00:01:15.879 the most popular American coursebook on 00:01:14.319 --> 00:01:17.799 Trusts and Estates, and he is a 00:01:15.879 --> 00:01:19.239 co-editor of the Oxford Handbook of 00:01:17.799 --> 00:01:20.799 Fiduciary Law. 00:01:19.239 --> 00:01:22.359 Professor Sitkoff's research has been 00:01:20.799 --> 00:01:24.280 featured in the New York Times, Wall 00:01:22.359 --> 00:01:26.000 Street Journal, and Financial Times, 00:01:24.280 --> 00:01:27.920 amongst other media. 00:01:26.000 --> 00:01:29.879 He's an active participant in Trusts and 00:01:27.920 --> 00:01:32.280 Estates law reform. He serves on the 00:01:29.879 --> 00:01:34.519 Uniform Law Commission as a commissioner 00:01:32.280 --> 00:01:36.239 for Massachusetts. He previously served 00:01:34.519 --> 00:01:37.759 as a member of several other drafting 00:01:36.239 --> 00:01:40.000 committees for Uniform Trusts and 00:01:37.760 --> 00:01:41.480 Estates Acts, including as chair of the 00:01:40.000 --> 00:01:44.040 drafting committee for the Uniform 00:01:41.480 --> 00:01:45.880 Directed Trust Act. And on a personal 00:01:44.040 --> 00:01:47.800 note, I took Professor Sitkoff's Trusts 00:01:45.879 --> 00:01:49.640 and Estates class last year and found it 00:01:47.799 --> 00:01:52.000 to be one of the best classes I've taken 00:01:49.640 --> 00:01:53.719 here at the law school. So, now, without 00:01:52.000 --> 00:01:55.439 further ado, I know none of you are here 00:01:53.719 --> 00:01:58.555 to hear me speak. Please help me in 00:01:55.439 --> 00:01:58.920 welcoming Professor Robert Sitkoff. 00:01:58.555 --> 00:02:00.000 >> [applause] 00:01:58.920 --> 00:02:02.960 >> Thank you. 00:02:00.000 --> 00:02:02.959 That's very kind. Thank you. 00:02:04.840 --> 00:02:09.599 Uh, well, thank you. That's a 00:02:06.760 --> 00:02:13.319 That's a very generous and kind um 00:02:09.599 --> 00:02:13.319 uh, introduction. Um 00:02:13.680 --> 00:02:17.080 So, let me say something about uh, what 00:02:15.800 --> 00:02:18.800 what you just said and then I'll get 00:02:17.080 --> 00:02:20.840 into some of the things I wanted to say. 00:02:18.800 --> 00:02:22.600 So, um, from time to time people make 00:02:20.840 --> 00:02:23.920 that comment about uh, the youngest 00:02:22.599 --> 00:02:25.639 chair. So, I'm going to tell you this 00:02:23.919 --> 00:02:27.879 the true story what actually happened. 00:02:25.639 --> 00:02:29.159 So, I was a visitor here in uh, spring 00:02:27.879 --> 00:02:31.840 of um 00:02:29.159 --> 00:02:33.759 uh, spring of 2007. 00:02:31.840 --> 00:02:35.439 Elena Kagan was the dean at the time. 00:02:33.759 --> 00:02:37.280 Uh, it was a good time to visit Harvard. 00:02:35.439 --> 00:02:39.919 It was a period of promiscuous hiring, 00:02:37.280 --> 00:02:42.680 so it was a good time to visit. And uh, 00:02:39.919 --> 00:02:44.959 anyway, the faculty had a meeting and 00:02:42.680 --> 00:02:47.080 voted my offer. Elena came to the office 00:02:44.960 --> 00:02:49.159 and she we talked for a while and then 00:02:47.080 --> 00:02:50.640 she got up to leave. You know by now 00:02:49.159 --> 00:02:52.039 Colombo? Like she turned at the door, 00:02:50.639 --> 00:02:54.199 she turned around, "Oh, one more thing. 00:02:52.039 --> 00:02:56.799 If you If you say yes, you'll be the 00:02:54.199 --> 00:02:58.039 John L. Gray uh, Professor of Law." I 00:02:56.800 --> 00:02:59.760 said, "Oh my goodness, that's that's 00:02:58.039 --> 00:03:02.039 amazing. That's really early in career. 00:02:59.759 --> 00:03:04.319 I'm 31." And I said, "That's pretty 00:03:02.039 --> 00:03:06.239 early to have a uh, chair. Oh my 00:03:04.319 --> 00:03:07.959 goodness." And she said, "Well, the the 00:03:06.240 --> 00:03:08.920 donor restricted it to a specialist in 00:03:07.960 --> 00:03:10.760 Trusts and Estates, what else am I 00:03:08.919 --> 00:03:12.479 supposed to do with it?" 00:03:10.759 --> 00:03:14.479 So, that's actually what what what 00:03:12.479 --> 00:03:17.280 happened. Okay, anyway, um, so I I thank 00:03:14.479 --> 00:03:19.879 you for inviting me to do this. It's 00:03:17.280 --> 00:03:22.840 it's a quite an honor. Um, one of the 00:03:19.879 --> 00:03:25.919 reasons I moved here now 00:03:22.840 --> 00:03:29.000 about 20 years ago was for you, for the 00:03:25.919 --> 00:03:31.280 students. Your curiosity and energy 00:03:29.000 --> 00:03:33.599 and engagement, uh, hunger to grow and 00:03:31.280 --> 00:03:35.840 learn has been exciting and really the 00:03:33.599 --> 00:03:38.919 best part of the job. It's made me a 00:03:35.840 --> 00:03:41.200 better teacher, a better scholar, better 00:03:38.919 --> 00:03:42.879 lawyer. You have over the years, 00:03:41.199 --> 00:03:45.679 including the last 2 years, held me 00:03:42.879 --> 00:03:47.680 accountable, forced me to think harder 00:03:45.680 --> 00:03:49.080 and deeper about uh, issues. A little 00:03:47.680 --> 00:03:52.360 bit later in this talk, I'm going to 00:03:49.080 --> 00:03:54.360 quote a line that one of you wrote in 00:03:52.360 --> 00:03:56.360 your exam and I've lifted and put in the 00:03:54.360 --> 00:03:59.000 casebook as it's a good it's a good 00:03:56.360 --> 00:04:01.880 line. But also, you have been um, 00:03:59.000 --> 00:04:04.080 unfailingly generous. As some of you 00:04:01.879 --> 00:04:05.479 know, the past year or two has been a 00:04:04.080 --> 00:04:07.400 little bit rough 00:04:05.479 --> 00:04:09.439 for me. My father died, I got a 00:04:07.400 --> 00:04:11.360 concussion, each of my three children 00:04:09.439 --> 00:04:13.479 had significant health issues, one 00:04:11.360 --> 00:04:15.600 needed a surgery. It's been a bumpy 00:04:13.479 --> 00:04:17.560 couple of years and throughout that 00:04:15.599 --> 00:04:19.439 whole period, you've all been 00:04:17.560 --> 00:04:20.839 People taking the classes in particular 00:04:19.439 --> 00:04:23.360 have been 00:04:20.839 --> 00:04:25.319 uncommonly generous and accommodating my 00:04:23.360 --> 00:04:26.800 bumpiness and not, you know, there was 00:04:25.319 --> 00:04:28.199 the one class I had to leave partway 00:04:26.800 --> 00:04:31.520 through to go lie down because of my 00:04:28.199 --> 00:04:34.039 head and whatever. And so thank you. So, 00:04:31.519 --> 00:04:35.199 last lecture, I mean, I hope it's not my 00:04:34.040 --> 00:04:37.439 last 00:04:35.199 --> 00:04:38.680 lecture. I mean, it could be, but that's 00:04:37.439 --> 00:04:40.560 not the, you know, hope for the best, 00:04:38.680 --> 00:04:42.280 but plan for the worst. That's my That's 00:04:40.560 --> 00:04:43.959 our field's motto. I don't think it's 00:04:42.279 --> 00:04:45.399 going to be the last. People are 00:04:43.959 --> 00:04:47.560 laughing. I mean that for real. Hope for 00:04:45.399 --> 00:04:49.079 the best, but plan for the worst. 00:04:47.560 --> 00:04:51.319 So, I I I don't think it's actually 00:04:49.079 --> 00:04:53.439 going to be the last lecture, but I do 00:04:51.319 --> 00:04:56.360 suspect that for many of you, this will 00:04:53.439 --> 00:04:58.399 be my last chance to indoctrinate. 00:04:56.360 --> 00:05:00.639 Right? The last chance to tell you some 00:04:58.399 --> 00:05:01.959 things that I think are important that I 00:05:00.639 --> 00:05:04.719 think will be are important to me for 00:05:01.959 --> 00:05:06.599 you to understand as you embark on being 00:05:04.720 --> 00:05:09.480 a lawyer, as you embark on the journey 00:05:06.600 --> 00:05:10.920 of the rest of your life. And I I hope 00:05:09.480 --> 00:05:13.200 it's not the last chance. I hope you 00:05:10.920 --> 00:05:15.240 will stay in in touch and reach out and 00:05:13.199 --> 00:05:16.639 email. Email's easy, right? 00:05:15.240 --> 00:05:18.920 I'm in Hauser or whatever, but I 00:05:16.639 --> 00:05:20.800 understand for many this will be. 00:05:18.920 --> 00:05:22.040 So, I I puzzled for a little while about 00:05:20.800 --> 00:05:23.199 what what could I tell you? You know, 00:05:22.040 --> 00:05:25.920 what what would I what would what would 00:05:23.199 --> 00:05:27.399 I want to do in this last lecture? 00:05:25.920 --> 00:05:29.920 So, the problem is I have a pretty 00:05:27.399 --> 00:05:30.759 narrow range of knowledge. 00:05:29.920 --> 00:05:31.640 I 00:05:30.759 --> 00:05:33.240 I 00:05:31.639 --> 00:05:35.519 I I know a lot about Trusts and Estates 00:05:33.240 --> 00:05:37.560 and fiduciary law. I also know about 00:05:35.519 --> 00:05:39.439 classic Star Trek, coaching Little 00:05:37.560 --> 00:05:41.800 League, and the Yankees, 00:05:39.439 --> 00:05:45.160 making pancakes. None of this seemed 00:05:41.800 --> 00:05:46.800 like really appropriate. So, I went back 00:05:45.160 --> 00:05:48.600 and I gave one of these some years ago. 00:05:46.800 --> 00:05:50.199 Was it 10 years ago? I looked at that 00:05:48.600 --> 00:05:52.480 video and I I thought, "What have I 00:05:50.199 --> 00:05:54.560 learned since then?" And first thing 00:05:52.480 --> 00:05:56.680 came to mind was how to do colonoscopy 00:05:54.560 --> 00:05:58.600 preps. 00:05:56.680 --> 00:06:00.319 But that seemed like not also what we 00:05:58.600 --> 00:06:02.760 should do uh 00:06:00.319 --> 00:06:03.439 We could, if we we maybe the Q&A, we can 00:06:02.759 --> 00:06:05.399 uh 00:06:03.439 --> 00:06:07.600 So, my family said, "Don't talk about 00:06:05.399 --> 00:06:08.319 colonoscopy." So, I win. There I did it. 00:06:07.600 --> 00:06:09.360 Uh, 00:06:08.319 --> 00:06:11.079 so let me tell you what I did. I I dug 00:06:09.360 --> 00:06:13.000 up the outline, dug up my notes from 00:06:11.079 --> 00:06:15.359 that. And what I was struck as I looked 00:06:13.000 --> 00:06:16.759 at those notes from all those years ago 00:06:15.360 --> 00:06:18.639 when I did one of these talks, what I 00:06:16.759 --> 00:06:20.639 was really struck by 00:06:18.639 --> 00:06:22.319 was the very different perspective, my 00:06:20.639 --> 00:06:24.839 very different understanding of what I 00:06:22.319 --> 00:06:27.199 told that class those years ago. 00:06:24.839 --> 00:06:29.079 Right? And so, what I want to do today, 00:06:27.199 --> 00:06:30.800 and that's reflects 10 years of growth, 00:06:29.079 --> 00:06:32.519 right? 10 years of learning, 10 more 00:06:30.800 --> 00:06:34.680 years of experience than you, 10 more 00:06:32.519 --> 00:06:37.560 years of just life. 00:06:34.680 --> 00:06:39.439 And so, what I want to do today is I'm 00:06:37.560 --> 00:06:41.160 going to talk about a variety several of 00:06:39.439 --> 00:06:44.160 the same things I talked about then, but 00:06:41.160 --> 00:06:47.000 from a refreshed lens with what is the 00:06:44.160 --> 00:06:48.760 current my current state of development. 00:06:47.000 --> 00:06:51.439 And in doing that, what I'm trying to 00:06:48.759 --> 00:06:53.360 model for you is the never-ending 00:06:51.439 --> 00:06:55.920 growth, right? The idea that you will 00:06:53.360 --> 00:06:58.080 continue to learn and develop as a 00:06:55.920 --> 00:07:00.920 lawyer, as a person, as a child, a 00:06:58.079 --> 00:07:02.560 sibling, a partner, whatever. The idea 00:07:00.920 --> 00:07:03.879 that you need to keep learning. You need 00:07:02.560 --> 00:07:06.439 to keep growing. You want to keep 00:07:03.879 --> 00:07:08.360 reevaluating what you think you know 00:07:06.439 --> 00:07:09.319 and look at these things afresh. So, 00:07:08.360 --> 00:07:11.400 here's what we're going to do. I'm going 00:07:09.319 --> 00:07:14.519 to tell you I'm going to try to tell you 00:07:11.399 --> 00:07:16.560 some things that I wish I knew. I wish 00:07:14.519 --> 00:07:18.319 that I knew when I was you. Right? When 00:07:16.560 --> 00:07:19.839 I was getting ready to graduate and go 00:07:18.319 --> 00:07:22.560 out. So, I want to tell you four things 00:07:19.839 --> 00:07:24.759 that I didn't really understand then and 00:07:22.560 --> 00:07:26.199 I think in truth, I didn't even really 00:07:24.759 --> 00:07:27.879 understand 10 years ago. I mean, I 00:07:26.199 --> 00:07:29.519 thought I did and I talked about them in 00:07:27.879 --> 00:07:31.279 that talk, but I understand them 00:07:29.519 --> 00:07:32.359 differently now and I'm sure in 10 00:07:31.279 --> 00:07:34.919 years, I'll understand them even 00:07:32.360 --> 00:07:36.960 differently then. But I want to talk to 00:07:34.920 --> 00:07:38.000 you about what I think I understand 00:07:36.959 --> 00:07:40.039 now. 00:07:38.000 --> 00:07:41.279 You don't have to accept my vision. You 00:07:40.040 --> 00:07:43.640 don't have to accept these things that 00:07:41.279 --> 00:07:46.559 I'm going to be telling you. I want to 00:07:43.639 --> 00:07:49.039 offer this as a kind of as a idea for 00:07:46.560 --> 00:07:50.480 you to take in and then absorb and do 00:07:49.040 --> 00:07:53.280 with what you wish. Right? Take this 00:07:50.480 --> 00:07:56.040 into the full body of your development 00:07:53.279 --> 00:07:58.279 as a person, as a lawyer, whatever else. 00:07:56.040 --> 00:08:00.360 But mostly, what I want to do is get you 00:07:58.279 --> 00:08:02.199 thinking. I want you to look at this as 00:08:00.360 --> 00:08:05.000 a broad picture. You're about to enter a 00:08:02.199 --> 00:08:06.599 learned profession. And that term 00:08:05.000 --> 00:08:08.560 learned for a learned profession has 00:08:06.600 --> 00:08:10.840 real meaning. Right? It's not just that 00:08:08.560 --> 00:08:13.519 we're self-regulating and the like. It's 00:08:10.839 --> 00:08:16.119 that it's a profession that requires 00:08:13.519 --> 00:08:18.639 study. It requires learning. People are 00:08:16.120 --> 00:08:21.439 coming to you for your learning and for 00:08:18.639 --> 00:08:22.639 what you can think, what you can do for 00:08:21.439 --> 00:08:24.399 them. And so, I want to push you a 00:08:22.639 --> 00:08:25.959 little bit. So, this is going to be a 00:08:24.399 --> 00:08:29.079 last lecture 00:08:25.959 --> 00:08:30.799 about the law and specifically law that 00:08:29.079 --> 00:08:33.399 you're going to be doing. And even more 00:08:30.800 --> 00:08:35.038 specifically, I'm going to tell you what 00:08:33.399 --> 00:08:37.959 I think is my what I'm going to tell you 00:08:35.038 --> 00:08:39.718 what is my understanding of the law that 00:08:37.960 --> 00:08:42.158 many of you are going to be doing and 00:08:39.719 --> 00:08:43.760 why it matters and what I think is your 00:08:42.158 --> 00:08:46.879 responsibility 00:08:43.759 --> 00:08:48.879 to your clients, to the practice of law, 00:08:46.879 --> 00:08:51.879 and to society 00:08:48.879 --> 00:08:53.759 as a member of this learned profession. 00:08:51.879 --> 00:08:55.480 And I think I narrow this into four 00:08:53.759 --> 00:08:57.519 takeaways, four buckets. Let me tell you 00:08:55.480 --> 00:09:00.159 what these four buckets what these four 00:08:57.519 --> 00:09:01.720 buckets are going to be. So, one is not 00:09:00.159 --> 00:09:02.959 a shock for people who took the class. I 00:09:01.720 --> 00:09:04.639 want to say a little bit about the 00:09:02.960 --> 00:09:05.639 relationship between public and private 00:09:04.639 --> 00:09:06.519 law. 00:09:05.639 --> 00:09:08.720 I want to say something about the 00:09:06.519 --> 00:09:10.279 relationship between public and private 00:09:08.720 --> 00:09:11.720 law. This is foundational. This is 00:09:10.279 --> 00:09:13.360 definitional. This is something that 00:09:11.720 --> 00:09:14.800 we're going to need to all have this 00:09:13.360 --> 00:09:16.759 conversation, which is not really a 00:09:14.799 --> 00:09:18.959 conversation, but it's the polite way to 00:09:16.759 --> 00:09:20.600 say it. So, to have this conversation, 00:09:18.960 --> 00:09:22.280 we need to have we need to have a common 00:09:20.600 --> 00:09:24.440 vocabulary. All right. The second thing 00:09:22.279 --> 00:09:26.679 is I want to say something about private 00:09:24.440 --> 00:09:28.240 law and private ordering, which is the 00:09:26.679 --> 00:09:29.239 law that most of you are going to be 00:09:28.240 --> 00:09:31.039 doing. 00:09:29.240 --> 00:09:33.039 And I want to tell you what I think it 00:09:31.039 --> 00:09:35.559 is that you'll be doing and why it 00:09:33.039 --> 00:09:38.319 matters. I want to say why it matters 00:09:35.559 --> 00:09:40.479 cuz I I think that's where rule of law 00:09:38.320 --> 00:09:43.640 really has power and I think that's 00:09:40.480 --> 00:09:44.960 where it affects people on the ground. 00:09:43.639 --> 00:09:46.759 So, the claim I'm going to be making is 00:09:44.960 --> 00:09:48.680 this is retail law. 00:09:46.759 --> 00:09:50.799 That private ordering, private law is 00:09:48.679 --> 00:09:52.679 retail law. This is what not just what 00:09:50.799 --> 00:09:55.000 most of you are going to be doing, 00:09:52.679 --> 00:09:58.439 but this is what many of your clients 00:09:55.000 --> 00:10:00.360 are coming to coming to you for in their 00:09:58.440 --> 00:10:03.200 day-to-day life. 00:10:00.360 --> 00:10:06.080 And I think it is unfairly denigrated in 00:10:03.200 --> 00:10:08.200 elite law schools. I think that we don't 00:10:06.080 --> 00:10:10.639 give enough attention and time to the 00:10:08.200 --> 00:10:13.160 significance of private ordering. We do 00:10:10.639 --> 00:10:15.000 not encourage you to go practice in this 00:10:13.159 --> 00:10:17.039 area. We don't congratulate you for the 00:10:15.000 --> 00:10:19.320 contributions you make in doing it, and 00:10:17.039 --> 00:10:20.519 yet we send most of you out to do that. 00:10:19.320 --> 00:10:21.600 And I think you should feel really good 00:10:20.519 --> 00:10:24.439 about it. I think it's absolutely 00:10:21.600 --> 00:10:27.240 essential. And I want to tell you why. 00:10:24.440 --> 00:10:30.360 Okay, the third bucket which follows 00:10:27.240 --> 00:10:31.720 from that is your role as lawyer. And I 00:10:30.360 --> 00:10:33.240 mean this on the one hand as a 00:10:31.720 --> 00:10:34.600 fiduciary. 00:10:33.240 --> 00:10:36.440 So, as a member of this learned 00:10:34.600 --> 00:10:37.480 profession to whom your client turns for 00:10:36.440 --> 00:10:40.080 help. 00:10:37.480 --> 00:10:42.200 But also in terms of your responsibility 00:10:40.080 --> 00:10:45.320 for what the law is going forward. It's 00:10:42.200 --> 00:10:46.879 a long tradition in these talks for 00:10:45.320 --> 00:10:49.520 folks up here to be telling you about 00:10:46.879 --> 00:10:51.240 your responsibility as a lawyer, but 00:10:49.519 --> 00:10:52.879 it's usually in a public law frame and 00:10:51.240 --> 00:10:55.000 at the end of the Republic as we know it 00:10:52.879 --> 00:10:56.639 unless you do something or another. 00:10:55.000 --> 00:10:58.600 So, I I I want to make a subtly 00:10:56.639 --> 00:11:01.240 different claim. I want to say that your 00:10:58.600 --> 00:11:05.279 role in um 00:11:01.240 --> 00:11:07.200 uh policing the reform of private law is 00:11:05.279 --> 00:11:10.879 absolutely essential to the development 00:11:07.200 --> 00:11:13.480 law and even more so now for a variety 00:11:10.879 --> 00:11:16.360 of developments in the nature of private 00:11:13.480 --> 00:11:19.080 law, increased codification, right? In 00:11:16.360 --> 00:11:21.600 the disfiguring of statutory 00:11:19.080 --> 00:11:23.080 interpretation because of public law 00:11:21.600 --> 00:11:24.320 battles and so on. So, I want to say a 00:11:23.080 --> 00:11:26.400 little bit about the role you're going 00:11:24.320 --> 00:11:27.320 to play and what that matters and that's 00:11:26.399 --> 00:11:28.000 the 00:11:27.320 --> 00:11:30.720 um 00:11:28.000 --> 00:11:32.879 public service aspect of being a member 00:11:30.720 --> 00:11:35.040 of a learned profession. There is a 00:11:32.879 --> 00:11:36.759 public service aspect in the private law 00:11:35.039 --> 00:11:38.319 domain also and that's the thing I want 00:11:36.759 --> 00:11:40.480 to talk about. All right. So, then 00:11:38.320 --> 00:11:42.480 there's number four. So, number four is 00:11:40.480 --> 00:11:45.440 going to be to tie these three together. 00:11:42.480 --> 00:11:48.080 I want to offer you a competing vision 00:11:45.440 --> 00:11:50.640 of rule of law. 00:11:48.080 --> 00:11:54.560 This is weirdly maybe a subversive 00:11:50.639 --> 00:11:57.480 notion of rule of law. I want to suggest 00:11:54.559 --> 00:11:58.799 rule of law as private ordering as 00:11:57.480 --> 00:12:00.200 private law. 00:11:58.799 --> 00:12:02.159 Right? So, instead of talking about rule 00:12:00.200 --> 00:12:04.280 of law as in the organization of civil 00:12:02.159 --> 00:12:06.079 society, people and the state, public 00:12:04.279 --> 00:12:08.838 law. I want to talk about rule of law 00:12:06.080 --> 00:12:11.120 from the standpoint of we order your 00:12:08.839 --> 00:12:13.560 personal and professional affairs with 00:12:11.120 --> 00:12:16.679 other people and we enforce it, we 00:12:13.559 --> 00:12:19.159 resolve it, we make it work through law 00:12:16.679 --> 00:12:20.279 rather than through baseball bats. 00:12:19.159 --> 00:12:24.799 Right? I'm going to talk about that kind 00:12:20.279 --> 00:12:27.559 of retail rule of retail rule of law. 00:12:24.799 --> 00:12:28.919 And so, this is private law these forms 00:12:27.559 --> 00:12:31.079 as 00:12:28.919 --> 00:12:34.199 rule of law and then the role of you, of 00:12:31.080 --> 00:12:36.240 lawyers, in making this all work. 00:12:34.200 --> 00:12:37.680 Okay, I say this is So, let's let's go 00:12:36.240 --> 00:12:40.000 through these first. So, first, what do 00:12:37.679 --> 00:12:42.120 I mean when I say public law? 00:12:40.000 --> 00:12:43.600 We say public law and private law. So, 00:12:42.120 --> 00:12:45.360 public law 00:12:43.600 --> 00:12:48.040 is constitutional law, administrative 00:12:45.360 --> 00:12:49.759 law, criminal law, and the like. This is 00:12:48.039 --> 00:12:52.439 the law that um 00:12:49.759 --> 00:12:53.600 organizes the state and your 00:12:52.440 --> 00:12:55.720 relationship to it. This is the 00:12:53.600 --> 00:12:58.320 organization of the state, right? The 00:12:55.720 --> 00:13:00.080 coercive power of the state and how this 00:12:58.320 --> 00:13:02.400 how this is going to operate. So, this 00:13:00.080 --> 00:13:03.800 is the front page news, right? This is 00:13:02.399 --> 00:13:05.199 where everyone's waiting everyone waits 00:13:03.799 --> 00:13:07.879 for Supreme Court decisions and writes 00:13:05.200 --> 00:13:09.520 about that every year. This is what gets 00:13:07.879 --> 00:13:11.240 these headlines. This is this notion 00:13:09.519 --> 00:13:11.960 that that um 00:13:11.240 --> 00:13:13.440 uh 00:13:11.960 --> 00:13:15.360 this is what's going to this is why we 00:13:13.440 --> 00:13:17.000 have a leg reg class. This is what if 00:13:15.360 --> 00:13:19.919 you pick up the Harvard Law Review is 00:13:17.000 --> 00:13:22.279 going to predominate its pages. This is 00:13:19.919 --> 00:13:24.240 what draws people because you know, you 00:13:22.279 --> 00:13:25.720 go to college, take political science, 00:13:24.240 --> 00:13:27.919 the Constitution exerts this 00:13:25.720 --> 00:13:30.320 gravitational pull on you. It's very 00:13:27.919 --> 00:13:33.439 exciting. It's lots of fun. It's fine. 00:13:30.320 --> 00:13:36.800 So, you and there's a long-standing 00:13:33.440 --> 00:13:38.080 history in these talks of um 00:13:36.799 --> 00:13:41.599 of 00:13:38.080 --> 00:13:44.000 expressions of worry about the current 00:13:41.600 --> 00:13:46.360 state of our civil society and whether 00:13:44.000 --> 00:13:48.839 our public law institutions will be able 00:13:46.360 --> 00:13:51.879 to abide given whatever crisis is at 00:13:48.839 --> 00:13:55.040 hand at one of these lectures. And an 00:13:51.879 --> 00:13:57.559 exhort and you are exhorted to engage 00:13:55.039 --> 00:14:00.039 with these problems because the Republic 00:13:57.559 --> 00:14:02.639 depends upon it and the whole order 00:14:00.039 --> 00:14:04.159 matters. And I'm not saying that's not 00:14:02.639 --> 00:14:05.838 that there's not something to it, but if 00:14:04.159 --> 00:14:07.279 you go back and you look at some of 00:14:05.839 --> 00:14:08.880 these lectures on YouTube, that's what 00:14:07.279 --> 00:14:10.279 this is that's what this is about. It's 00:14:08.879 --> 00:14:13.159 a critical moment in our constitutional 00:14:10.279 --> 00:14:15.958 republic and whatever else. 00:14:13.159 --> 00:14:18.199 But I also want to say that's not a new 00:14:15.958 --> 00:14:20.119 sentiment. So, I just took a minute on 00:14:18.200 --> 00:14:21.280 Google. I'm going to read you a line 00:14:20.120 --> 00:14:22.078 here. 00:14:21.279 --> 00:14:23.679 Um 00:14:22.078 --> 00:14:25.439 it is not to be disguised that we have 00:14:23.679 --> 00:14:27.879 arrived at a critical period of our 00:14:25.440 --> 00:14:29.120 country's history. And that the capacity 00:14:27.879 --> 00:14:31.600 of the people for maintaining a 00:14:29.120 --> 00:14:33.839 constitutional constitutional government 00:14:31.600 --> 00:14:35.560 is being subjected to a severer test 00:14:33.839 --> 00:14:37.560 than ever before. 00:14:35.559 --> 00:14:40.078 If, however, either the legislative or 00:14:37.559 --> 00:14:42.359 executive disregard the limits upon 00:14:40.078 --> 00:14:43.838 their power fixed by the people 00:14:42.360 --> 00:14:45.600 what we suppose to be a constitutional 00:14:43.839 --> 00:14:47.079 republic becomes the mere tyranny of the 00:14:45.600 --> 00:14:48.440 majority. 00:14:47.078 --> 00:14:50.439 Okay, that was from the inauguration 00:14:48.440 --> 00:14:52.079 speech of a of a governor of California 00:14:50.440 --> 00:14:54.320 in 1867. 00:14:52.078 --> 00:14:56.958 You know, I'm just saying I'm not trying 00:14:54.320 --> 00:14:58.240 to say that there aren't challenges 00:14:56.958 --> 00:15:00.399 today. 00:14:58.240 --> 00:15:03.560 I'm trying to say that the fact of 00:15:00.399 --> 00:15:05.480 challenges to the public civil order is 00:15:03.559 --> 00:15:07.559 not a new thing. 00:15:05.480 --> 00:15:10.639 Right? It's a perennial thing and it is 00:15:07.559 --> 00:15:12.599 an important thing and many people here 00:15:10.639 --> 00:15:14.078 focus on that and want to talk about it 00:15:12.600 --> 00:15:16.360 and I don't mean to say it's not 00:15:14.078 --> 00:15:18.559 significant. I just want to say it's 00:15:16.360 --> 00:15:19.879 kind of an evergreen 00:15:18.559 --> 00:15:21.719 problem. 00:15:19.879 --> 00:15:24.559 And it is 00:15:21.720 --> 00:15:26.000 I think unfairly eclipsed a different 00:15:24.559 --> 00:15:27.838 problem and that's the one I want to 00:15:26.000 --> 00:15:30.799 draw to your attention. That is the 00:15:27.839 --> 00:15:32.680 problem of confronted by private law. 00:15:30.799 --> 00:15:34.240 That's the law of organizing your 00:15:32.679 --> 00:15:36.120 relationships, 00:15:34.240 --> 00:15:39.079 your relationships with other people, 00:15:36.120 --> 00:15:41.320 with entities, with organizations. 00:15:39.078 --> 00:15:43.519 Right? This is the law of of private 00:15:41.320 --> 00:15:46.079 ordering, buying and selling things, of 00:15:43.519 --> 00:15:47.679 jobs, of organizing business, of forming 00:15:46.078 --> 00:15:49.439 a family. 00:15:47.679 --> 00:15:51.039 Under the organizations. You understand? 00:15:49.440 --> 00:15:54.040 This is retail law. This is your 00:15:51.039 --> 00:15:55.199 day-to-day This is your day-to-day 00:15:54.039 --> 00:15:57.319 life. 00:15:55.200 --> 00:16:00.079 In truth, this is the law that most 00:15:57.320 --> 00:16:02.160 people butt up with all the time. Right? 00:16:00.078 --> 00:16:03.719 So, we start a little bit late. Why? Cuz 00:16:02.159 --> 00:16:05.120 your Sweetgreen's delivery was a little 00:16:03.720 --> 00:16:06.560 bit late. Okay, is this a breach of 00:16:05.120 --> 00:16:08.879 contract? Are we going to deal with it? 00:16:06.559 --> 00:16:10.838 Every everything that's going on is all 00:16:08.879 --> 00:16:12.919 private ordering. Right? So, my nose on 00:16:10.839 --> 00:16:14.200 the side, you know, back in my day when 00:16:12.919 --> 00:16:16.319 I was in law school 00:16:14.200 --> 00:16:17.520 we just they gave us deep-dish pizza, 00:16:16.320 --> 00:16:20.040 which isn't even pizza, right? It's a 00:16:17.519 --> 00:16:22.120 soufflé. Pizza everything. It's not 00:16:20.039 --> 00:16:24.120 pizza. So, it's it's 00:16:22.120 --> 00:16:26.200 always always pizza whatever. This is 00:16:24.120 --> 00:16:28.200 kind of fancy. Anyway, 00:16:26.200 --> 00:16:30.360 whatever, it's Harvard. Okay, so 00:16:28.200 --> 00:16:31.959 when I say rule of law 00:16:30.360 --> 00:16:34.519 right? When I say rule of law, you're 00:16:31.958 --> 00:16:36.559 habitualized to think about like legal 00:16:34.519 --> 00:16:37.720 checks on the executive. 00:16:36.559 --> 00:16:39.439 Right? You're thinking about checks and 00:16:37.720 --> 00:16:40.959 balances. You're thinking about due 00:16:39.440 --> 00:16:43.120 process. You're thinking about 00:16:40.958 --> 00:16:45.639 deprivation of life liberty, or 00:16:43.120 --> 00:16:47.879 property, and and the like. But I want 00:16:45.639 --> 00:16:51.600 to suggest something cruder and more 00:16:47.879 --> 00:16:55.799 base. Right? Rule of law is 00:16:51.600 --> 00:16:58.839 an organized, predictable apparatus for 00:16:55.799 --> 00:16:59.879 dealing with breakdowns in private 00:16:58.839 --> 00:17:02.480 ordering. 00:16:59.879 --> 00:17:04.359 For being able to make private ordering 00:17:02.480 --> 00:17:06.640 and understanding that this isn't that 00:17:04.359 --> 00:17:08.279 it's not going to come apart. Do you 00:17:06.640 --> 00:17:11.199 understand? This organization not by 00:17:08.279 --> 00:17:13.519 force, by by rule of law. So, if I make 00:17:11.199 --> 00:17:15.199 a deal to have the Sweetgreen delivered 00:17:13.519 --> 00:17:16.720 and it's not, I'm not going to go with a 00:17:15.199 --> 00:17:18.920 baseball bat and beat up the manager 00:17:16.720 --> 00:17:21.838 there. That we have a way of resolving 00:17:18.920 --> 00:17:23.560 this way of resolving this dispute. 00:17:21.838 --> 00:17:26.240 Right? That as a there's an organized 00:17:23.559 --> 00:17:29.000 way to invoke the coercive power of the 00:17:26.240 --> 00:17:31.759 state to make sure the deal we struck, 00:17:29.000 --> 00:17:33.039 the organization that we made works. 00:17:31.759 --> 00:17:34.839 Okay, so let's take a step back. Let's 00:17:33.039 --> 00:17:37.119 be political theorists 00:17:34.839 --> 00:17:38.599 for a for just a a minute here. So, 00:17:37.119 --> 00:17:41.199 what's our point here? What's the point 00:17:38.599 --> 00:17:43.079 of organizing in civil society? Right? 00:17:41.200 --> 00:17:44.840 So, all this time we talk about the the 00:17:43.079 --> 00:17:46.960 constitutional republic is in danger and 00:17:44.839 --> 00:17:48.678 will fall or you know, whatever. Why do 00:17:46.960 --> 00:17:50.120 we care? Right? What's the point of the 00:17:48.679 --> 00:17:51.720 constitutional 00:17:50.119 --> 00:17:53.199 republic? Someone's like, I don't want 00:17:51.720 --> 00:17:55.400 to do Locke and Rousseau and whatever. 00:17:53.200 --> 00:17:56.920 That's that's fine. What I'm getting at 00:17:55.400 --> 00:18:00.080 The point I want to ask is why are we 00:17:56.920 --> 00:18:02.720 organizing that civil uh society? Right? 00:18:00.079 --> 00:18:04.678 Why do we care? Why do we want this 00:18:02.720 --> 00:18:06.079 this organized the state? Right? We 00:18:04.679 --> 00:18:07.560 don't organize the state just to have 00:18:06.079 --> 00:18:08.799 the state. 00:18:07.559 --> 00:18:10.678 Right? We don't organize the state to 00:18:08.799 --> 00:18:12.480 just have the state. The liberal and I 00:18:10.679 --> 00:18:14.320 mean like John Stuart Mill liberal, 00:18:12.480 --> 00:18:17.559 right? Like the um 00:18:14.319 --> 00:18:21.000 small L liberal. A liberal society 00:18:17.559 --> 00:18:22.599 the point of organizing the state is to 00:18:21.000 --> 00:18:24.039 facilitate 00:18:22.599 --> 00:18:26.079 private ordering. 00:18:24.039 --> 00:18:27.879 Right? It's to allow individuals to 00:18:26.079 --> 00:18:29.559 flourish and organize their affairs. 00:18:27.880 --> 00:18:32.159 Right? So, the John Stuart Mill idea of 00:18:29.559 --> 00:18:33.599 liberty is that my liberty is to the 00:18:32.159 --> 00:18:35.800 extent to the tip of your nose and we 00:18:33.599 --> 00:18:37.519 can organize I can organize around that. 00:18:35.799 --> 00:18:39.960 So, what's the idea of civil society? To 00:18:37.519 --> 00:18:41.599 police that. So, I got to erect this 00:18:39.960 --> 00:18:43.720 constitutional republic in order to 00:18:41.599 --> 00:18:45.039 what? In order to flourish. 00:18:43.720 --> 00:18:47.600 But what does flourishing mean to me? 00:18:45.039 --> 00:18:50.559 That doesn't matter. Right? That's my 00:18:47.599 --> 00:18:52.678 problem to go out and organize. Public 00:18:50.559 --> 00:18:55.079 law is the infrastructure that lets you 00:18:52.679 --> 00:18:57.040 then create the system of private law. 00:18:55.079 --> 00:18:59.039 In order to order your life. The port 00:18:57.039 --> 00:19:01.000 The point of the order society of 00:18:59.039 --> 00:19:02.440 liberty. Why is it so important you 00:19:01.000 --> 00:19:04.119 don't deprive me of liberty without due 00:19:02.440 --> 00:19:07.400 process? What is that liberty to go and 00:19:04.119 --> 00:19:09.559 organize my life, to marry or not, to 00:19:07.400 --> 00:19:12.200 build a business or not, to contract or 00:19:09.559 --> 00:19:14.359 not, whatever. All of these uh things. 00:19:12.200 --> 00:19:15.480 Any that is So, what if you think of the 00:19:14.359 --> 00:19:17.599 civil 00:19:15.480 --> 00:19:20.000 uh society as something more than that, 00:19:17.599 --> 00:19:22.918 you're actually profoundly illiberal 00:19:20.000 --> 00:19:24.799 in the classical sense. Because that's 00:19:22.919 --> 00:19:26.560 what it that was the idea of individual 00:19:24.799 --> 00:19:28.079 liberty. So, so that's our first point. 00:19:26.559 --> 00:19:31.279 Right? Public law, private law, that's a 00:19:28.079 --> 00:19:33.639 sketch of what this is about. On this 00:19:31.279 --> 00:19:35.799 view, the project of private law is as 00:19:33.640 --> 00:19:37.640 if not more important than the project 00:19:35.799 --> 00:19:40.359 of public law. Right? That's what we're 00:19:37.640 --> 00:19:42.280 trying to get to let people go and do 00:19:40.359 --> 00:19:44.799 their thing. 00:19:42.279 --> 00:19:47.918 Okay, so that brings us to our second 00:19:44.799 --> 00:19:49.559 our second bucket. Which is the role of 00:19:47.919 --> 00:19:51.520 private law. How does this work? What 00:19:49.559 --> 00:19:52.559 does private law do for us in private 00:19:51.519 --> 00:19:54.319 ordering? 00:19:52.559 --> 00:19:55.599 So, let's take a step back and think 00:19:54.319 --> 00:19:57.079 this probably would have been useful at 00:19:55.599 --> 00:19:58.199 the start of law school. Let's kind of 00:19:57.079 --> 00:19:59.439 think about what do I mean by this 00:19:58.200 --> 00:20:02.240 landscape. We'll start with the big 00:19:59.440 --> 00:20:03.279 three: property, contract, and tort. 00:20:02.240 --> 00:20:04.960 Right, let's start with a first 00:20:03.279 --> 00:20:07.200 approximate This isn't exactly correct, 00:20:04.960 --> 00:20:09.240 but it's roughly uh true. Let's just 00:20:07.200 --> 00:20:11.480 Let's just start with the basic baseline 00:20:09.240 --> 00:20:13.680 that you have a property right in your 00:20:11.480 --> 00:20:16.079 things and in your person. It's not 00:20:13.680 --> 00:20:19.080 exactly true, but roughly speaking, you 00:20:16.079 --> 00:20:21.319 have some kind of right to your body and 00:20:19.079 --> 00:20:24.480 your and your things. 00:20:21.319 --> 00:20:26.639 So, what's contract? That is consensual 00:20:24.480 --> 00:20:29.519 transfer of those rights. 00:20:26.640 --> 00:20:31.680 What is tort? That's non-consensual 00:20:29.519 --> 00:20:32.839 transfer of those rights. 00:20:31.680 --> 00:20:34.240 That's how it makes sense now, right? 00:20:32.839 --> 00:20:35.639 So, we've got We have your rights, 00:20:34.240 --> 00:20:37.960 that's property, and then we have a 00:20:35.640 --> 00:20:40.440 contract, that's how you you give it 00:20:37.960 --> 00:20:43.039 away for in a deal, or you've got uh 00:20:40.440 --> 00:20:45.080 tort, where after the fact we're filling 00:20:43.039 --> 00:20:47.759 in the deal cuz it was a non-consensual 00:20:45.079 --> 00:20:49.559 transfer. So, what's everything else? 00:20:47.759 --> 00:20:52.319 Everything else are specialized 00:20:49.559 --> 00:20:57.000 applications of that. Corporation, LLC, 00:20:52.319 --> 00:20:58.559 marriage, trust, um agency, partnership, 00:20:57.000 --> 00:21:01.559 wills, everything. They're all 00:20:58.559 --> 00:21:04.679 specialized applications of the general 00:21:01.559 --> 00:21:07.000 of the of the of the uh big three. 00:21:04.680 --> 00:21:09.000 They're all specialized forms, right? 00:21:07.000 --> 00:21:11.839 They all reflect specialized special 00:21:09.000 --> 00:21:12.880 instances of these uh problems. 00:21:11.839 --> 00:21:15.000 Well, what happens when the private 00:21:12.880 --> 00:21:16.920 ordering goes wrong, like really uh 00:21:15.000 --> 00:21:18.400 wrong? Right, well, one, there's, you 00:21:16.920 --> 00:21:19.880 know, criminal backup, or the other 00:21:18.400 --> 00:21:23.000 there's bankruptcy, right? So, now we've 00:21:19.880 --> 00:21:24.800 got some public backstops when this uh 00:21:23.000 --> 00:21:26.720 uh when this goes wrong. But when you 00:21:24.799 --> 00:21:29.279 think of it in this light, what's the 00:21:26.720 --> 00:21:31.319 project? The project is facilitative, 00:21:29.279 --> 00:21:32.559 not regulatory. 00:21:31.319 --> 00:21:34.279 Do you understand the little role of the 00:21:32.559 --> 00:21:36.960 lawyer now as like we This is old 00:21:34.279 --> 00:21:39.480 expression, lawyer is transaction costs 00:21:36.960 --> 00:21:42.160 uh engineer, lawyer to make this stuff 00:21:39.480 --> 00:21:45.880 uh work. The idea behind these these 00:21:42.160 --> 00:21:47.240 rules is facilitative, not regulatory. 00:21:45.880 --> 00:21:49.280 It's a really big deal for reasons we'll 00:21:47.240 --> 00:21:51.079 come to in a in a minute when we think 00:21:49.279 --> 00:21:53.200 about cases and we think about drafting 00:21:51.079 --> 00:21:54.639 statutes. The point I want to make now 00:21:53.200 --> 00:21:57.759 is if that um 00:21:54.640 --> 00:21:59.600 our idea is to allow people to order the 00:21:57.759 --> 00:22:01.640 way they want unless we have some policy 00:21:59.599 --> 00:22:03.039 reason not to let them do it. 00:22:01.640 --> 00:22:04.200 Now, there may be good public policy 00:22:03.039 --> 00:22:06.480 reasons why we're not going to let you 00:22:04.200 --> 00:22:08.360 do certain forms of of of private 00:22:06.480 --> 00:22:10.360 ordering. That's fine. 00:22:08.359 --> 00:22:12.359 But outside those areas, we want to 00:22:10.359 --> 00:22:15.000 facilitate. We want to make this work. 00:22:12.359 --> 00:22:17.119 So, go back to the machinery of all of 00:22:15.000 --> 00:22:18.240 these areas of law that you've uh 00:22:17.119 --> 00:22:21.279 learned. 00:22:18.240 --> 00:22:23.519 Right, there's generally speaking pieces 00:22:21.279 --> 00:22:24.759 that are for third parties. 00:22:23.519 --> 00:22:26.039 Third parties need to understand what's 00:22:24.759 --> 00:22:28.160 going on, and there are pieces for the 00:22:26.039 --> 00:22:30.159 people involved uh in the ordering. 00:22:28.160 --> 00:22:32.000 Everything you've learned 00:22:30.160 --> 00:22:33.560 and everything you'll be doing, I think, 00:22:32.000 --> 00:22:35.599 will make more sense in that framework. 00:22:33.559 --> 00:22:37.960 I'm going to give you examples. 00:22:35.599 --> 00:22:40.639 Right, all is very common across private 00:22:37.960 --> 00:22:41.640 law to see formation rules. 00:22:40.640 --> 00:22:43.920 You know what I mean I say formation 00:22:41.640 --> 00:22:46.280 rules? Like, how do you trigger this 00:22:43.920 --> 00:22:47.279 form? So, let's go back to contract. 00:22:46.279 --> 00:22:50.279 Think about contract for a minute. 00:22:47.279 --> 00:22:51.879 Offer, acceptance, consideration. Think 00:22:50.279 --> 00:22:55.200 of wills, writing, signature, 00:22:51.880 --> 00:22:57.080 attestation. Agency, you you you 00:22:55.200 --> 00:22:59.559 manifest an intent that someone else can 00:22:57.079 --> 00:23:00.879 bind you, or more recently, the written 00:22:59.559 --> 00:23:03.559 power of attorney because we want to be 00:23:00.880 --> 00:23:05.480 able to prove this. If it's a LLC or 00:23:03.559 --> 00:23:06.919 corporation that has limited liability, 00:23:05.480 --> 00:23:08.559 you are filing with the state. All these 00:23:06.920 --> 00:23:10.039 formation rules, 00:23:08.559 --> 00:23:11.639 what are they about, right? We are We're 00:23:10.039 --> 00:23:13.599 starting to see they're about how we 00:23:11.640 --> 00:23:15.679 signal to our 00:23:13.599 --> 00:23:18.519 our counterparty and third parties that 00:23:15.679 --> 00:23:20.000 we've created a form, right? What we are 00:23:18.519 --> 00:23:22.200 uh what we're doing. 00:23:20.000 --> 00:23:24.319 And what do you see inside all of these 00:23:22.200 --> 00:23:27.360 different areas of law? You see rules of 00:23:24.319 --> 00:23:28.439 governance or construction or default 00:23:27.359 --> 00:23:29.879 rules. 00:23:28.440 --> 00:23:31.360 So, you see how there's a common thread 00:23:29.880 --> 00:23:33.240 across them. What does that look like? 00:23:31.359 --> 00:23:35.119 Let's go back to contract. Do you 00:23:33.240 --> 00:23:37.839 remember Lady Lucy Duff Gordon? Right, 00:23:35.119 --> 00:23:39.959 exclusive dealing, where these So, where 00:23:37.839 --> 00:23:41.639 we read the contract to say, "Well, 00:23:39.960 --> 00:23:43.079 there's an implied duty of good faith 00:23:41.640 --> 00:23:44.679 and fair dealing." 00:23:43.079 --> 00:23:45.879 So, this isn't just Cardozo saying, 00:23:44.679 --> 00:23:47.840 "Well, I'm just going to make something 00:23:45.880 --> 00:23:49.480 up." That's facilitating. Well, these 00:23:47.839 --> 00:23:51.759 two people made a deal. I you're 00:23:49.480 --> 00:23:53.640 exclusive You're my exclusive seller. 00:23:51.759 --> 00:23:54.960 Well, the only way that deal makes sense 00:23:53.640 --> 00:23:56.679 is if you're going to make reasonable 00:23:54.960 --> 00:23:58.880 efforts to sell. So, I'm going to 00:23:56.679 --> 00:24:01.200 facilitate What is the probable intent 00:23:58.880 --> 00:24:03.280 of the people here? I'm not regulating 00:24:01.200 --> 00:24:05.880 their deal. I'm facilitating what their 00:24:03.279 --> 00:24:09.000 ordering is meant uh to be. In 00:24:05.880 --> 00:24:11.960 partnership, corporation, LLC, you'll 00:24:09.000 --> 00:24:14.200 see rules of profit sharing, of voting, 00:24:11.960 --> 00:24:16.240 of of um of preventing strategic 00:24:14.200 --> 00:24:17.960 behavior. Why? Well, these are all what 00:24:16.240 --> 00:24:20.359 we think are what the parties would have 00:24:17.960 --> 00:24:22.480 wanted. And to varying degrees, we let 00:24:20.359 --> 00:24:23.839 the parties say something else. But if 00:24:22.480 --> 00:24:25.480 they don't tell us something else, we 00:24:23.839 --> 00:24:26.919 give them these terms. Why? Because 00:24:25.480 --> 00:24:28.799 we've learned this is what they're 00:24:26.920 --> 00:24:30.120 trying to do. There's this It's kind of 00:24:28.799 --> 00:24:31.399 magical. 00:24:30.119 --> 00:24:33.919 Right, there's something uh 00:24:31.400 --> 00:24:36.720 astonishingly beautiful 00:24:33.920 --> 00:24:39.840 and magical that there is on the shelf 00:24:36.720 --> 00:24:42.279 all these forms that you do the right 00:24:39.839 --> 00:24:44.678 formation signal, right? You check the 00:24:42.279 --> 00:24:47.399 right boxes, you do offer acceptance 00:24:44.679 --> 00:24:49.280 consideration, you manifest an intent to 00:24:47.400 --> 00:24:51.440 with someone else to go into a business 00:24:49.279 --> 00:24:53.440 for profit, that's partnership. You file 00:24:51.440 --> 00:24:54.880 with the state, that's your corporation. 00:24:53.440 --> 00:24:56.600 You manifest an intent and give 00:24:54.880 --> 00:24:59.160 property, that's a trust that you Once 00:24:56.599 --> 00:25:01.439 you do the formation rule, you 00:24:59.160 --> 00:25:02.679 immediately get all of this stuff. 00:25:01.440 --> 00:25:05.360 That's not regulatory, it's 00:25:02.679 --> 00:25:07.600 facilitative. Trust fiduciary governance 00:25:05.359 --> 00:25:09.079 and trustee removal. Or here's another 00:25:07.599 --> 00:25:11.359 one. This is a little bit weird to think 00:25:09.079 --> 00:25:13.639 of it this way. Marriage. 00:25:11.359 --> 00:25:14.799 Marriage is a private ordering form. 00:25:13.640 --> 00:25:16.880 Right, what hap- What's marriage? You go 00:25:14.799 --> 00:25:19.319 through a formation ritual, right? 00:25:16.880 --> 00:25:20.920 There's a filing with the state, and 00:25:19.319 --> 00:25:23.519 then what do you get? You get a marital 00:25:20.920 --> 00:25:25.200 property regime, that's your default. 00:25:23.519 --> 00:25:28.039 You might like it or not, you can change 00:25:25.200 --> 00:25:29.519 it if you don't. And you get dissolution 00:25:28.039 --> 00:25:31.159 rules. 00:25:29.519 --> 00:25:32.720 Right, you have rules for dissolution 00:25:31.160 --> 00:25:34.720 during life, and you also get rules for 00:25:32.720 --> 00:25:36.600 dissolution at death. You might not like 00:25:34.720 --> 00:25:39.720 those rules, so you contract otherwise 00:25:36.599 --> 00:25:41.599 if you don't. Right? So, right, this is 00:25:39.720 --> 00:25:43.400 I This is a romantic vision, right? So, 00:25:41.599 --> 00:25:45.000 like since I said my wife, "Hey, let's 00:25:43.400 --> 00:25:46.440 have a long-term relational contract for 00:25:45.000 --> 00:25:47.960 horizontal integration or a household 00:25:46.440 --> 00:25:49.920 production function." Right, so under 00:25:47.960 --> 00:25:52.039 This is This is private ordering. Now, 00:25:49.920 --> 00:25:53.519 we'll have, you know, franchisees. It's 00:25:52.039 --> 00:25:56.159 private Do you understand private 00:25:53.519 --> 00:25:59.079 ordering? Okay. So, you don't have to 00:25:56.160 --> 00:26:00.560 reinvent every one of these things every 00:25:59.079 --> 00:26:02.439 time, right? The private law is 00:26:00.559 --> 00:26:05.079 providing that. What's your job as the 00:26:02.440 --> 00:26:08.759 lawyer? Your job as the lawyer is to 00:26:05.079 --> 00:26:11.879 understand the objective of the client. 00:26:08.759 --> 00:26:14.559 Figure out which one of those forms will 00:26:11.880 --> 00:26:16.000 get them closest to the objective, and 00:26:14.559 --> 00:26:18.759 then go 00:26:16.000 --> 00:26:20.319 make it right. Change default rules that 00:26:18.759 --> 00:26:22.559 don't fit. Do you see what I'm I'm 00:26:20.319 --> 00:26:24.759 getting at here at first approximation. 00:26:22.559 --> 00:26:26.599 That's not just a deal, right? That's 00:26:24.759 --> 00:26:27.640 your transactional side, right? Transact 00:26:26.599 --> 00:26:29.399 Many of you will be transactional 00:26:27.640 --> 00:26:31.360 lawyers. What you're doing is you're 00:26:29.400 --> 00:26:33.080 taking one of the forms, and you're 00:26:31.359 --> 00:26:36.439 jamming what people are trying to 00:26:33.079 --> 00:26:38.839 achieve into that form. So, every time 00:26:36.440 --> 00:26:41.320 that LLC agreement doesn't have a clause 00:26:38.839 --> 00:26:44.079 in it is a failure that is needed is a 00:26:41.319 --> 00:26:45.480 failure of lawyering. Not to understand 00:26:44.079 --> 00:26:48.199 that the form doesn't fit what they're 00:26:45.480 --> 00:26:49.839 trying to do. Every time the marriage 00:26:48.200 --> 00:26:51.640 comes asunder and it turns out those 00:26:49.839 --> 00:26:53.319 rules aren't right, it's a failure. 00:26:51.640 --> 00:26:55.880 Means that we should have we should that 00:26:53.319 --> 00:26:59.039 we didn't de- change those default rules 00:26:55.880 --> 00:27:01.200 to fit what the people uh wanted. Even 00:26:59.039 --> 00:27:02.720 tort, like let's use Goldberg, now Dean 00:27:01.200 --> 00:27:05.039 Goldberg, right? The Pa- his vision of 00:27:02.720 --> 00:27:07.600 tort, the Palsgraf principle, right? 00:27:05.039 --> 00:27:08.960 Tort is all about you have a right, and 00:27:07.599 --> 00:27:11.119 if somebody takes that right, you're in 00:27:08.960 --> 00:27:12.480 compensation. Non-consensual transfer. 00:27:11.119 --> 00:27:14.359 Well, what's his idea of the Palsgraf 00:27:12.480 --> 00:27:15.960 principle? That it has to be 00:27:14.359 --> 00:27:17.279 foreseeable, right? If it's not 00:27:15.960 --> 00:27:18.679 foreseeable, you're taking someone 00:27:17.279 --> 00:27:20.920 else's right. Do you understand? That's 00:27:18.679 --> 00:27:21.880 just we're filling in what the contract 00:27:20.920 --> 00:27:25.400 would have been. We're giving you 00:27:21.880 --> 00:27:27.400 compensation for what was uh taken. 00:27:25.400 --> 00:27:29.080 So, on this view, 00:27:27.400 --> 00:27:30.920 on this view, the private law is just a 00:27:29.079 --> 00:27:32.839 set of forms. They're forms that to 00:27:30.920 --> 00:27:33.560 varying degrees 00:27:32.839 --> 00:27:36.079 uh 00:27:33.559 --> 00:27:38.720 let you organize, and to varying 00:27:36.079 --> 00:27:40.559 degrees, let you customize the 00:27:38.720 --> 00:27:43.160 off-the-shelf form to get at what you're 00:27:40.559 --> 00:27:44.919 trying uh to do. I understand there are 00:27:43.160 --> 00:27:46.519 problematic edge cases, right? We do 00:27:44.920 --> 00:27:48.320 them in class, that's what's fun, right? 00:27:46.519 --> 00:27:50.599 So, in a contracts class, that's Hammer 00:27:48.319 --> 00:27:53.639 and Sidway, that's promises not to 00:27:50.599 --> 00:27:55.759 smoke. And in my class, that's, well, is 00:27:53.640 --> 00:27:57.240 I'm going to give the manuscripts to the 00:27:55.759 --> 00:27:59.319 Hebrew University in Jerusalem, is that 00:27:57.240 --> 00:28:01.799 declaration of trust? Is that a gift? 00:27:59.319 --> 00:28:04.200 Because a gift to the Those are 00:28:01.799 --> 00:28:05.799 problems with formation. 00:28:04.200 --> 00:28:07.600 Right, those are formation problems, and 00:28:05.799 --> 00:28:10.079 you get a good lawyer involved, we'll 00:28:07.599 --> 00:28:13.279 solve it, right? We'll find a form, and 00:28:10.079 --> 00:28:15.519 we'll uh uh uh jam you uh jam you in. 00:28:13.279 --> 00:28:17.279 Right? Okay. Another way of uh getting 00:28:15.519 --> 00:28:18.720 at this cuz, you know, Passover is uh 00:28:17.279 --> 00:28:20.319 coming. When I was in law school, one of 00:28:18.720 --> 00:28:22.039 my law school classmates invited me to 00:28:20.319 --> 00:28:24.079 her family's for a Passover. They had a 00:28:22.039 --> 00:28:26.559 tradition. Their tradition is you had to 00:28:24.079 --> 00:28:29.359 interrupt the Seder at some point and 00:28:26.559 --> 00:28:30.599 make some unique contribution. So, what 00:28:29.359 --> 00:28:32.319 I did was when they did the four 00:28:30.599 --> 00:28:33.759 children, the four questions, you know, 00:28:32.319 --> 00:28:35.399 they had the different questions, I 00:28:33.759 --> 00:28:37.440 chimed in as, "I got a fifth child, a 00:28:35.400 --> 00:28:40.360 Chicago-trained uh child." The 00:28:37.440 --> 00:28:41.919 Chicago-trained child asks, "Isn't 00:28:40.359 --> 00:28:43.479 Weren't the 10 plagues just a really a 00:28:41.919 --> 00:28:45.040 failure in private ordering and 00:28:43.480 --> 00:28:47.559 enforcement mechanisms that if we had 00:28:45.039 --> 00:28:49.079 had a enforcement regime, we wouldn't 00:28:47.559 --> 00:28:50.879 have need to like kill all the firstborn 00:28:49.079 --> 00:28:52.720 in whatever uh uh Do you understand? 00:28:50.880 --> 00:28:54.679 Like, that's what hap- It's funny, but 00:28:52.720 --> 00:28:56.360 also, 00:28:54.679 --> 00:28:59.600 that's what happens we don't have 00:28:56.359 --> 00:29:01.119 enforceable private ordering forms. You 00:28:59.599 --> 00:29:02.639 have to slaughter people's children to 00:29:01.119 --> 00:29:04.479 get them to comply. I mean, that maybe 00:29:02.640 --> 00:29:07.520 hit him with a baseball bat. You This is 00:29:04.480 --> 00:29:10.200 an ordered society is about making 00:29:07.519 --> 00:29:12.119 ordering uh uh work. Okay, so that takes 00:29:10.200 --> 00:29:14.799 us to the third point, third point I 00:29:12.119 --> 00:29:16.279 want to talk about, which is your role. 00:29:14.799 --> 00:29:20.000 So, I've already talked about your roles 00:29:16.279 --> 00:29:22.440 as fiduciary for your client, but also, 00:29:20.000 --> 00:29:25.240 as a member of a learned profession, 00:29:22.440 --> 00:29:26.840 meaning obligation to society. And I 00:29:25.240 --> 00:29:28.319 want to suggest that obligation is not, 00:29:26.839 --> 00:29:30.039 you know, defending the republic from 00:29:28.319 --> 00:29:32.079 falling, you know, whatever. I I mean, 00:29:30.039 --> 00:29:35.000 that's important. 00:29:32.079 --> 00:29:37.000 But also, making this stuff work so 00:29:35.000 --> 00:29:38.679 within the society, we can flourish. 00:29:37.000 --> 00:29:40.759 Each person can flourish however they 00:29:38.679 --> 00:29:41.840 want. So, we've talked about one of 00:29:40.759 --> 00:29:44.279 those, 00:29:41.839 --> 00:29:46.559 which is being alert to the objective of 00:29:44.279 --> 00:29:47.839 the client. That means listening. 00:29:46.559 --> 00:29:50.279 Do you understand? That means like a 00:29:47.839 --> 00:29:51.879 good lawyer is a counselor Uh at law. 00:29:50.279 --> 00:29:54.119 You're listening. You're getting what 00:29:51.880 --> 00:29:56.160 they're trying to achieve and helping 00:29:54.119 --> 00:29:59.079 the client get the right form and 00:29:56.160 --> 00:30:01.720 customizing the form. Good transactional 00:29:59.079 --> 00:30:04.079 work involves listening 00:30:01.720 --> 00:30:06.319 with an empathetic ear, really getting 00:30:04.079 --> 00:30:08.439 the objective, counseling the client on 00:30:06.319 --> 00:30:11.159 the ways to get there, and making that 00:30:08.440 --> 00:30:12.360 form fit the circumstances. That's one 00:30:11.160 --> 00:30:14.519 we've been emphasizing. I want to talk 00:30:12.359 --> 00:30:16.479 about two others. 00:30:14.519 --> 00:30:17.720 One is 00:30:16.480 --> 00:30:21.480 when 00:30:17.720 --> 00:30:22.680 dealing with private ordering gone awry. 00:30:21.480 --> 00:30:24.640 So now we're talking about litigation 00:30:22.680 --> 00:30:25.840 and lawyering and in court and also 00:30:24.640 --> 00:30:27.400 judging. 00:30:25.839 --> 00:30:29.919 And the third is going to be your 00:30:27.400 --> 00:30:31.560 responsibility for making the law for 00:30:29.920 --> 00:30:32.560 making law work. 00:30:31.559 --> 00:30:34.879 So here's what I'm going to do. I want 00:30:32.559 --> 00:30:36.480 to go back to this new case, a favorite 00:30:34.880 --> 00:30:37.720 it's a favorite case. I just started at 00:30:36.480 --> 00:30:38.799 teaching this. But we're going to do 00:30:37.720 --> 00:30:40.120 this and some of you have seen it, but 00:30:38.799 --> 00:30:41.799 we're going to do it differently now cuz 00:30:40.119 --> 00:30:44.279 we're a different prism. Remember this 00:30:41.799 --> 00:30:46.079 guy? So this is Beck, right? This is the 00:30:44.279 --> 00:30:48.160 Beck case from Montana. For those who 00:30:46.079 --> 00:30:51.720 don't know what happened here, so this 00:30:48.160 --> 00:30:54.080 guy Beck is in his truck and I takes his 00:30:51.720 --> 00:30:57.319 iPhone, he makes a recording, right? 00:30:54.079 --> 00:30:59.599 Takes his iPhone, he makes a recording. 00:30:57.319 --> 00:31:02.759 Give all my possessions. If anything 00:30:59.599 --> 00:31:06.279 happens to me whatsoever, I give all my 00:31:02.759 --> 00:31:08.680 possessions, everything to Jason Beck, 00:31:06.279 --> 00:31:10.440 my brother. 00:31:08.680 --> 00:31:12.560 I don't think I'll find out that night 00:31:10.440 --> 00:31:15.320 get one thing. 00:31:12.559 --> 00:31:17.079 Not one thing. 00:31:15.319 --> 00:31:19.319 Okay. So 00:31:17.079 --> 00:31:21.199 we understand what's going on here? Now, 00:31:19.319 --> 00:31:22.639 he's trying to he's trying to order his 00:31:21.200 --> 00:31:24.080 affairs. 00:31:22.640 --> 00:31:26.240 Do you understand what I So here we have 00:31:24.079 --> 00:31:28.399 a member of our civil society who is 00:31:26.240 --> 00:31:30.640 exercising that right that we want 00:31:28.400 --> 00:31:33.280 everybody in our society to have to 00:31:30.640 --> 00:31:35.200 order his affairs, right? This This is I 00:31:33.279 --> 00:31:36.240 is manifesting testamentary intent. I 00:31:35.200 --> 00:31:37.440 don't Nobody's going to just I don't 00:31:36.240 --> 00:31:39.599 think everybody does Anybody disagree 00:31:37.440 --> 00:31:42.240 here? He's This guy is telling us what 00:31:39.599 --> 00:31:45.159 he wants to happen to his property when 00:31:42.240 --> 00:31:47.559 he dies. Now, if he came to you once 00:31:45.160 --> 00:31:49.200 you're licensed or he came to me, I am 00:31:47.559 --> 00:31:51.359 licensed. If 00:31:49.200 --> 00:31:53.000 if it came to you, came to me it comes 00:31:51.359 --> 00:31:54.439 to me, what would we do? Well, I know 00:31:53.000 --> 00:31:55.400 the forms, right? I'm like, "Oh, we're 00:31:54.440 --> 00:31:57.240 going to tell her this. We can do a 00:31:55.400 --> 00:32:00.080 revocable trust. We can do a will." We I 00:31:57.240 --> 00:32:01.519 got lots of forms. And I can make it fit 00:32:00.079 --> 00:32:03.119 and I can do this right and I can make 00:32:01.519 --> 00:32:06.720 sure Christina Fontenot doesn't see a 00:32:03.119 --> 00:32:08.279 penny. No problem. Good to go, right? 00:32:06.720 --> 00:32:10.600 But he didn't. 00:32:08.279 --> 00:32:12.240 Right? Didn't have a a lawyer there, 00:32:10.599 --> 00:32:14.719 right? So there was no transactional 00:32:12.240 --> 00:32:16.519 lawyer involved. So where are we now? 00:32:14.720 --> 00:32:18.480 Well, the lawyer's involved after he 00:32:16.519 --> 00:32:20.639 dies when his brother brings this to 00:32:18.480 --> 00:32:23.240 court. When his brother brings this to 00:32:20.640 --> 00:32:24.800 court and wants to a probate it. So now 00:32:23.240 --> 00:32:26.400 remember I said we have three spots. One 00:32:24.799 --> 00:32:28.639 is the client comes to you, we're going 00:32:26.400 --> 00:32:31.519 to help them order. Second is it gets 00:32:28.640 --> 00:32:33.640 busted and now we're in court. So what 00:32:31.519 --> 00:32:35.480 can we do when we're in court? Here the 00:32:33.640 --> 00:32:37.759 claim I want to make 00:32:35.480 --> 00:32:39.480 is that our grand debates about 00:32:37.759 --> 00:32:41.679 constitutional structure, about public 00:32:39.480 --> 00:32:44.839 law have disfigured 00:32:41.679 --> 00:32:46.679 our reasoning in private law cases. 00:32:44.839 --> 00:32:47.879 Right? We are we're bringing the wrong 00:32:46.679 --> 00:32:49.800 We're bringing an inappropriate 00:32:47.880 --> 00:32:52.560 methodology to these cases. So here's 00:32:49.799 --> 00:32:54.319 the statute at issue. Here's the statute 00:32:52.559 --> 00:32:56.678 in this case. 00:32:54.319 --> 00:32:58.200 A document or a writing added upon a 00:32:56.679 --> 00:33:00.920 document 00:32:58.200 --> 00:33:02.160 is probatable if there's clear and 00:33:00.920 --> 00:33:05.400 convincing evidence the decedent 00:33:02.160 --> 00:33:07.040 intended the document to be his will. 00:33:05.400 --> 00:33:09.280 Everybody agrees this guy meant for the 00:33:07.039 --> 00:33:10.399 for the for the video to be a will. 00:33:09.279 --> 00:33:12.359 Right? The court says so in the 00:33:10.400 --> 00:33:13.960 decision. This this reflects the 00:33:12.359 --> 00:33:16.359 testamentary intent. Nobody's doubting 00:33:13.960 --> 00:33:18.799 that he wants this video to be his will. 00:33:16.359 --> 00:33:21.479 It's a statutory interpretation case. Is 00:33:18.799 --> 00:33:24.519 the recording a document? Is the 00:33:21.480 --> 00:33:26.960 recording a document or a 00:33:24.519 --> 00:33:28.799 writing upon a document? 00:33:26.960 --> 00:33:30.160 That's the question. 00:33:28.799 --> 00:33:31.639 Okay, that's that's fine. So let's do 00:33:30.160 --> 00:33:33.800 the internal and then the external. 00:33:31.640 --> 00:33:34.880 Here's how the court resolved the case. 00:33:33.799 --> 00:33:37.159 The court says well, the statute is 00:33:34.880 --> 00:33:38.440 clear and unambiguous. 00:33:37.160 --> 00:33:40.920 It's always a warning, right? When we 00:33:38.440 --> 00:33:42.920 say a statute is clear and unambiguous. 00:33:40.920 --> 00:33:45.920 Statute is clear and unambiguous. It 00:33:42.920 --> 00:33:48.279 doesn't that the the video is not. 00:33:45.920 --> 00:33:50.880 Okay, why? Well, it says document or a 00:33:48.279 --> 00:33:53.319 writing upon a document. So to be a 00:33:50.880 --> 00:33:55.400 document, you must be capable of having 00:33:53.319 --> 00:33:56.678 writing put upon it. 00:33:55.400 --> 00:33:58.800 There's no It's Well, there's a 00:33:56.679 --> 00:34:01.120 recording. You can't put a writing upon 00:33:58.799 --> 00:34:03.879 that. So writing has to A document must 00:34:01.119 --> 00:34:05.239 be something that has writing on it. 00:34:03.880 --> 00:34:07.560 A document is not a document if it 00:34:05.240 --> 00:34:10.000 doesn't have a writing upon it. So this 00:34:07.559 --> 00:34:12.320 is not that, says the court. That's one 00:34:10.000 --> 00:34:14.398 argument. Secondly, the court says also 00:34:12.320 --> 00:34:16.720 we see that our that there's this 00:34:14.398 --> 00:34:19.000 uniform uniform electronic 00:34:16.719 --> 00:34:20.719 wills act, which our state has not 00:34:19.000 --> 00:34:23.280 adopted. 00:34:20.719 --> 00:34:25.239 But it says to be an electronic will, it 00:34:23.280 --> 00:34:27.519 has to be readable as text. And this is 00:34:25.239 --> 00:34:29.358 not readable as text. So that reinforced 00:34:27.519 --> 00:34:30.960 our conclusion that's definitely not. 00:34:29.358 --> 00:34:32.559 Okay, that's how the court answers this 00:34:30.960 --> 00:34:33.878 question. Do you see how the the mode of 00:34:32.559 --> 00:34:36.239 reasoning here? 00:34:33.878 --> 00:34:37.519 This is about limiting power. 00:34:36.239 --> 00:34:39.599 Do you see this very public law way of 00:34:37.519 --> 00:34:41.599 thinking? It's the claim I want to make. 00:34:39.599 --> 00:34:44.119 This about protecting, about limited 00:34:41.599 --> 00:34:45.719 power, about well, I'm concerned about 00:34:44.119 --> 00:34:47.679 the coercive power of the state. None of 00:34:45.719 --> 00:34:50.279 that's an issue here, right? 00:34:47.679 --> 00:34:51.760 This is a facilitative statute. 00:34:50.280 --> 00:34:53.399 This is when I have overwhelming 00:34:51.760 --> 00:34:55.240 evidence that the thing was meant to be 00:34:53.398 --> 00:34:57.358 a will, it should be a will. 00:34:55.239 --> 00:34:58.959 Now, I'm not saying that it's clear that 00:34:57.358 --> 00:35:00.880 the right that the video is in or the 00:34:58.960 --> 00:35:03.240 video is not in. I'm just saying there's 00:35:00.880 --> 00:35:04.480 nothing like that there. It's a right? 00:35:03.239 --> 00:35:07.079 The claim I'm making is the 00:35:04.480 --> 00:35:09.400 preoccupation with public law 00:35:07.079 --> 00:35:11.599 obscured from the court what to do. And 00:35:09.400 --> 00:35:14.400 the court wants to think that it's super 00:35:11.599 --> 00:35:15.960 textualist, right? A writing or document 00:35:14.400 --> 00:35:17.599 of a writing upon a document and how 00:35:15.960 --> 00:35:19.480 it's reasoning. And then of course it 00:35:17.599 --> 00:35:20.920 makes this totally non-textual turn to 00:35:19.480 --> 00:35:22.800 start reading a statute that was never 00:35:20.920 --> 00:35:24.639 even adopted. 00:35:22.800 --> 00:35:26.280 That was never even adopted, right? 00:35:24.639 --> 00:35:28.480 Okay. What would be another way to think 00:35:26.280 --> 00:35:30.280 about the Let's do another way to think 00:35:28.480 --> 00:35:31.400 of this. So here's the one One of you, I 00:35:30.280 --> 00:35:34.560 don't know if it was in this room. 00:35:31.400 --> 00:35:36.079 Somebody in their exam wrote this. 00:35:34.559 --> 00:35:39.039 Well, if you have a statute that says a 00:35:36.079 --> 00:35:41.559 farm animal or a person riding upon a 00:35:39.039 --> 00:35:43.239 farm animal doesn't make chickens no 00:35:41.559 --> 00:35:44.840 longer farm animals cuz you can't ride a 00:35:43.239 --> 00:35:46.679 chicken. 00:35:44.840 --> 00:35:49.440 Right? A Suppose you have a statute that 00:35:46.679 --> 00:35:51.399 says farm animals or people riding upon 00:35:49.440 --> 00:35:53.760 farm animals. Well, you can't be a farm 00:35:51.400 --> 00:35:55.119 animal then if people don't ride you. 00:35:53.760 --> 00:35:56.400 But isn't that exactly what this court 00:35:55.119 --> 00:35:57.960 just said? 00:35:56.400 --> 00:35:59.720 Right? If chickens are still farm 00:35:57.960 --> 00:36:01.960 animals under the under this student 00:35:59.719 --> 00:36:03.639 statute, then maybe riding then 00:36:01.960 --> 00:36:05.800 documents can be documents even if they 00:36:03.639 --> 00:36:09.519 can't have writings upon them. 00:36:05.800 --> 00:36:11.880 I know actually. I I know that the 00:36:09.519 --> 00:36:13.920 drafter of this statute did not mean 00:36:11.880 --> 00:36:16.440 document or writing upon a document to 00:36:13.920 --> 00:36:18.200 signal that document means only things 00:36:16.440 --> 00:36:19.599 writing about it cuz it was my friend 00:36:18.199 --> 00:36:21.679 Larry Waggoner at the University of 00:36:19.599 --> 00:36:23.719 Michigan who wrote it. And what he was 00:36:21.679 --> 00:36:25.399 thinking about were all these wills 00:36:23.719 --> 00:36:27.759 where people scratched something out and 00:36:25.400 --> 00:36:29.440 they wrote something else in by hand. 00:36:27.760 --> 00:36:31.440 That's what he thought. 00:36:29.440 --> 00:36:33.760 And if you were willing to approach this 00:36:31.440 --> 00:36:36.358 case from a different framework instead 00:36:33.760 --> 00:36:38.480 of the disfiguring of public law, 00:36:36.358 --> 00:36:40.000 instead if you came at this as this a 00:36:38.480 --> 00:36:41.559 facilitative statute, it's actually a 00:36:40.000 --> 00:36:43.800 uniform act that has a history, where 00:36:41.559 --> 00:36:45.799 did it come from, maybe it decided 00:36:43.800 --> 00:36:47.080 differently, maybe not. 00:36:45.800 --> 00:36:49.200 It's actually very I mean a hard 00:36:47.079 --> 00:36:50.960 question whether videos fall under the 00:36:49.199 --> 00:36:53.639 statute. But that would be the 00:36:50.960 --> 00:36:56.358 conversation you would be having. 00:36:53.639 --> 00:36:57.480 I don't mean to say to be clear, I don't 00:36:56.358 --> 00:36:58.599 mean to And let me just say one other 00:36:57.480 --> 00:37:00.000 thing. It's I don't even think the 00:36:58.599 --> 00:37:01.559 court's right. I mean we know this, 00:37:00.000 --> 00:37:03.199 right? That a video has like you're all 00:37:01.559 --> 00:37:04.519 on TikTok. You all know videos can have 00:37:03.199 --> 00:37:05.879 writing upon them. 00:37:04.519 --> 00:37:07.719 You understand like if the guy just 00:37:05.880 --> 00:37:09.079 turned on closed captioning, then we 00:37:07.719 --> 00:37:11.439 would probate it? 00:37:09.079 --> 00:37:14.440 That's really weird, right? That's we 00:37:11.440 --> 00:37:16.280 hold today that our legislature decided 00:37:14.440 --> 00:37:17.800 that if you turn closed captioning on, 00:37:16.280 --> 00:37:19.840 video will is good, but if you don't, 00:37:17.800 --> 00:37:22.640 video will is not. 00:37:19.840 --> 00:37:25.519 When it when it adopted this uniform act 00:37:22.639 --> 00:37:27.759 that was drafted in late '80s. 00:37:25.519 --> 00:37:29.800 Like I'm I I'm I was there in the late I 00:37:27.760 --> 00:37:31.680 mean I remember the late '80s. 00:37:29.800 --> 00:37:33.120 We had camcorders like this. Do you know 00:37:31.679 --> 00:37:35.239 what I mean? There was no 00:37:33.119 --> 00:37:37.358 closed caption. It's not how that 00:37:35.239 --> 00:37:40.239 worked. Okay. So here's another What So 00:37:37.358 --> 00:37:42.000 what could we do to What could we do to 00:37:40.239 --> 00:37:43.239 What could we do to to try to defend the 00:37:42.000 --> 00:37:44.960 decision? Here's another way to think of 00:37:43.239 --> 00:37:47.279 the decision. 00:37:44.960 --> 00:37:49.519 What you might have said was you might 00:37:47.280 --> 00:37:51.720 say, "You know what? This statute is 00:37:49.519 --> 00:37:54.440 from 1990. It was drafted by the Uniform 00:37:51.719 --> 00:37:55.839 Law Commission in the 1980s. Nobody in 00:37:54.440 --> 00:37:57.920 that in this period would have thought a 00:37:55.840 --> 00:38:00.079 video would have been acceptable. But 00:37:57.920 --> 00:38:01.280 today lots of people are recording all 00:38:00.079 --> 00:38:02.759 the time. 00:38:01.280 --> 00:38:05.120 They are going around making 00:38:02.760 --> 00:38:07.200 documentaries, 00:38:05.119 --> 00:38:10.159 right? They are recording what's 00:38:07.199 --> 00:38:12.000 happening and our statute seems out of 00:38:10.159 --> 00:38:13.799 date, but this is a big giant public 00:38:12.000 --> 00:38:15.880 policy question whether or not we're 00:38:13.800 --> 00:38:18.400 comfortable facilitating, whether this 00:38:15.880 --> 00:38:20.039 is a form that we want to recognize, 00:38:18.400 --> 00:38:22.039 whether we think the social costs of 00:38:20.039 --> 00:38:23.920 enforcing these forms are worth it, and 00:38:22.039 --> 00:38:25.840 that's too big for me as a judge. I'm 00:38:23.920 --> 00:38:28.800 kicking that to the legislature." That 00:38:25.840 --> 00:38:29.800 would be a totally reasonable way to go, 00:38:28.800 --> 00:38:31.280 right? That's fine. It's not what the 00:38:29.800 --> 00:38:33.160 court's saying. 00:38:31.280 --> 00:38:35.359 The court's decision is all internal, 00:38:33.159 --> 00:38:37.319 right? It's all pretend. It's all well, 00:38:35.358 --> 00:38:39.400 the statute clearly answers the 00:38:37.320 --> 00:38:41.000 question. 00:38:39.400 --> 00:38:42.559 Maybe not. Maybe it does, maybe it 00:38:41.000 --> 00:38:43.960 doesn't. Maybe this is a different Maybe 00:38:42.559 --> 00:38:45.880 what I'm describing is really what it's 00:38:43.960 --> 00:38:48.639 about. Okay, so here's a joke that Dick 00:38:45.880 --> 00:38:50.240 Posner told me when I was clerking. So 00:38:48.639 --> 00:38:52.319 it's like ever so slightly off color, 00:38:50.239 --> 00:38:54.399 but only ever so slightly, so it's okay. 00:38:52.320 --> 00:38:56.440 So I Here we go, right? Okay. Guy's 00:38:54.400 --> 00:38:58.039 walking down the street 00:38:56.440 --> 00:38:59.039 and he comes to this storefront and 00:38:58.039 --> 00:39:01.358 there 00:38:59.039 --> 00:39:04.039 flowers and art and pictures and 00:39:01.358 --> 00:39:06.400 beautiful things in the in the window. 00:39:04.039 --> 00:39:08.960 And the thing says, you know, it's 00:39:06.400 --> 00:39:10.559 Moshi's Mohel Services. A mohel is 00:39:08.960 --> 00:39:13.320 someone who does the bris, who does the 00:39:10.559 --> 00:39:14.799 circumcision in Jewish tradition. 00:39:13.320 --> 00:39:17.960 So guy goes in the store and he says, 00:39:14.800 --> 00:39:19.120 "W- Why you're a mohel? Yes, you do the 00:39:17.960 --> 00:39:20.159 brises, you do the circumcisions?" 00:39:19.119 --> 00:39:22.119 That's right. "Well, why do you have 00:39:20.159 --> 00:39:23.799 flowers and pictures and all this stuff 00:39:22.119 --> 00:39:24.880 in your in your window front?" He says, 00:39:23.800 --> 00:39:26.280 "Well, what would you have me put 00:39:24.880 --> 00:39:28.039 there?" 00:39:26.280 --> 00:39:29.359 Okay. What 00:39:28.039 --> 00:39:30.759 And now you understand about Judge 00:39:29.358 --> 00:39:33.679 Posner's 00:39:30.760 --> 00:39:35.960 view of opinions. So the 00:39:33.679 --> 00:39:37.399 What do you want the court to say? 00:39:35.960 --> 00:39:39.280 Right? Like 00:39:37.400 --> 00:39:41.680 this is a hard problem whether or not to 00:39:39.280 --> 00:39:43.640 recognize video wills, right? But I 00:39:41.679 --> 00:39:46.759 don't think you're helping anybody by 00:39:43.639 --> 00:39:48.599 doing this kind of this this mendacious 00:39:46.760 --> 00:39:50.880 statutory interpretation. That's not 00:39:48.599 --> 00:39:53.679 even true on its own terms. It's not 00:39:50.880 --> 00:39:55.400 even true uh on its own terms. 00:39:53.679 --> 00:39:56.519 So, okay. Well, if you do this word if 00:39:55.400 --> 00:39:57.760 you're going where I want to go, which 00:39:56.519 --> 00:40:00.480 is either you're going to say, "Look, 00:39:57.760 --> 00:40:02.440 this is a facilitative statute and uh I 00:40:00.480 --> 00:40:04.320 could read it both ways. I don't see any 00:40:02.440 --> 00:40:05.800 policy reason not to let someone do 00:40:04.320 --> 00:40:07.840 this. So, I'm going to let them do this 00:40:05.800 --> 00:40:09.720 till legislature stops me." 00:40:07.840 --> 00:40:11.320 Cuz it's a facilitative statute. I don't 00:40:09.719 --> 00:40:12.879 see any Okay, that's what I would do if 00:40:11.320 --> 00:40:14.400 I was the judge. You don't have to. You 00:40:12.880 --> 00:40:15.400 can go the other way. You might want to 00:40:14.400 --> 00:40:16.639 say, "Well, I'm going to kick it to the 00:40:15.400 --> 00:40:18.320 legislature." Which brings me to the 00:40:16.639 --> 00:40:21.519 last point, the last thing I want to 00:40:18.320 --> 00:40:22.480 say, which is "Well, that's fine." 00:40:21.519 --> 00:40:24.480 Right? That's fine. We're going to kick 00:40:22.480 --> 00:40:26.920 it to the legislature. 00:40:24.480 --> 00:40:29.000 But then without us, without you, 00:40:26.920 --> 00:40:31.480 without the learned profession doing law 00:40:29.000 --> 00:40:32.920 reform, I think it's a hopelessly naive 00:40:31.480 --> 00:40:34.559 understanding of the political 00:40:32.920 --> 00:40:37.000 structure. 00:40:34.559 --> 00:40:39.279 Never in the history of the world has 00:40:37.000 --> 00:40:42.320 anyone run for governor or state 00:40:39.280 --> 00:40:44.440 legislature saying, "Vote for me because 00:40:42.320 --> 00:40:47.360 I'm going to update the law of wills to 00:40:44.440 --> 00:40:49.240 account for new electronic stuff." 00:40:47.360 --> 00:40:52.800 "Put me in Congress because I'm going to 00:40:49.239 --> 00:40:54.799 fix revocation on divorce in ERISA." 00:40:52.800 --> 00:40:57.280 "Vote for me because I've observed that 00:40:54.800 --> 00:40:58.960 the spousal forced share, which is part 00:40:57.280 --> 00:41:01.400 of the default rules of the marriage 00:40:58.960 --> 00:41:02.880 form, no longer aligns with the rise of 00:41:01.400 --> 00:41:05.440 non-probate." 00:41:02.880 --> 00:41:07.840 Do you know who knows that? We. 00:41:05.440 --> 00:41:11.320 The members of the learned profession 00:41:07.840 --> 00:41:13.160 who who help people with the forms and 00:41:11.320 --> 00:41:15.480 walk them through. We see where the 00:41:13.159 --> 00:41:17.879 problems are with the forms and when we 00:41:15.480 --> 00:41:20.280 can't draft around them. 00:41:17.880 --> 00:41:22.240 Or we have people who don't know to 00:41:20.280 --> 00:41:24.000 draft around them. 00:41:22.239 --> 00:41:25.759 This is not just about responsibility 00:41:24.000 --> 00:41:28.639 for keeping the law updated, but it's 00:41:25.760 --> 00:41:30.880 also about legitimacy. 00:41:28.639 --> 00:41:32.960 Right? There's a horizontal equity point 00:41:30.880 --> 00:41:36.119 here. And I don't just mean about wealth 00:41:32.960 --> 00:41:37.840 or access to lawyers. So, here's a text 00:41:36.119 --> 00:41:39.639 message a student of mine got some years 00:41:37.840 --> 00:41:41.360 ago. People you've seen this before. 00:41:39.639 --> 00:41:44.199 Getting on some flights with dad, we 00:41:41.360 --> 00:41:46.840 realize we don't have a will. 00:41:44.199 --> 00:41:48.119 If anything happens and it won't, mom 00:41:46.840 --> 00:41:50.320 lies. 00:41:48.119 --> 00:41:51.920 Things bad things can and do happen. 00:41:50.320 --> 00:41:54.080 Please be uh 00:41:51.920 --> 00:41:55.599 and please be executor and divide all 00:41:54.079 --> 00:41:59.880 things equal. Don't know if this would 00:41:55.599 --> 00:41:59.880 count, but it's the best I can do. 00:41:59.960 --> 00:42:05.320 Love you and miss your face. So, there's 00:42:02.519 --> 00:42:07.320 your authenticity cuz that's a mom. Only 00:42:05.320 --> 00:42:09.600 I miss your face. 00:42:07.320 --> 00:42:10.760 It's fine, right? 00:42:09.599 --> 00:42:14.679 Uh 00:42:10.760 --> 00:42:16.840 This one satisfies the statute. 00:42:14.679 --> 00:42:21.839 Because it's a writing. 00:42:16.840 --> 00:42:24.200 So, video, no go. This one does. 00:42:21.840 --> 00:42:26.320 What is the principal distinction 00:42:24.199 --> 00:42:28.719 between those cases? 00:42:26.320 --> 00:42:30.480 Right? That's just I'm going to claim 00:42:28.719 --> 00:42:32.159 it's I want to argue it's an arbitrary 00:42:30.480 --> 00:42:36.199 distinction. It's a horizontal 00:42:32.159 --> 00:42:39.599 inequality. Like Like efforts at private 00:42:36.199 --> 00:42:42.319 ordering are being treated unlike. 00:42:39.599 --> 00:42:43.799 Right? It's an arbitrary way. And so, we 00:42:42.320 --> 00:42:45.640 want to we want to fix that. So, that 00:42:43.800 --> 00:42:47.120 brings me to the last thing I want to 00:42:45.639 --> 00:42:48.440 the last thing I want to talk about, 00:42:47.119 --> 00:42:51.519 which is 00:42:48.440 --> 00:42:53.320 this rule of law. So, the you're all the 00:42:51.519 --> 00:42:54.400 time you're going to hear at graduation 00:42:53.320 --> 00:42:55.600 and these other last lecture all the 00:42:54.400 --> 00:42:57.720 time you're going to hear about rule of 00:42:55.599 --> 00:42:59.599 law is endangered and you have to 00:42:57.719 --> 00:43:01.359 protect the constitutional order and on 00:42:59.599 --> 00:43:03.079 and on and on. It's fine. I mean I I 00:43:01.360 --> 00:43:05.680 mean it's not wrong that we need to have 00:43:03.079 --> 00:43:07.599 that. But that's that's just the 00:43:05.679 --> 00:43:10.839 predicate 00:43:07.599 --> 00:43:14.079 to what matters to people on a retail 00:43:10.840 --> 00:43:16.240 level. What matters to mom here is if 00:43:14.079 --> 00:43:18.279 that plane crashes, he's the executor is 00:43:16.239 --> 00:43:19.519 the executor and things are split 00:43:18.280 --> 00:43:21.480 evenly. 00:43:19.519 --> 00:43:23.800 Right? That's what she's looking for. 00:43:21.480 --> 00:43:29.159 So, what do you do as I want to suggest 00:43:23.800 --> 00:43:31.200 that the the further obligation is to 00:43:29.159 --> 00:43:33.199 get these things fixed. 00:43:31.199 --> 00:43:36.319 Right? There's another conception of 00:43:33.199 --> 00:43:39.199 public interest public service and that 00:43:36.320 --> 00:43:40.800 is the private law reform apparatus. 00:43:39.199 --> 00:43:42.039 There's a lot of versions of it. There's 00:43:40.800 --> 00:43:43.960 the American Law Institute and the 00:43:42.039 --> 00:43:46.039 restatements. There's Uniform Law 00:43:43.960 --> 00:43:47.960 Commission and Uniform Acts. But there's 00:43:46.039 --> 00:43:49.360 your local bar associations and the 00:43:47.960 --> 00:43:51.360 various committees that bring the 00:43:49.360 --> 00:43:53.840 statutes to the legislature. 00:43:51.360 --> 00:43:55.720 So, how do these little tweaks happen? 00:43:53.840 --> 00:43:58.840 How does the partnership law of whatever 00:43:55.719 --> 00:44:00.839 state, the LLC law, the divorce law, the 00:43:58.840 --> 00:44:02.320 marriage law, the trust law, the wills 00:44:00.840 --> 00:44:04.840 law, the contract law, how do these 00:44:02.320 --> 00:44:07.359 things get changed? It's ALI, it's ULC, 00:44:04.840 --> 00:44:09.000 it's local bar groups going to the local 00:44:07.358 --> 00:44:10.440 legislature saying, "We have this 00:44:09.000 --> 00:44:12.559 problem we need to fix it." Well, who 00:44:10.440 --> 00:44:14.079 opposes? Nobody. 00:44:12.559 --> 00:44:15.559 Why aren't we done yet? Nobody knows. 00:44:14.079 --> 00:44:17.759 This is just what we need to make things 00:44:15.559 --> 00:44:20.159 work. You see where I what the the the 00:44:17.760 --> 00:44:23.000 point I want to I'm trying to make here? 00:44:20.159 --> 00:44:24.559 Okay. So, here's here's an example. 00:44:23.000 --> 00:44:26.119 Right? Here's an example. So, people 00:44:24.559 --> 00:44:27.358 already know My father died a year and a 00:44:26.119 --> 00:44:28.599 half ago. He lives in he lived in New 00:44:27.358 --> 00:44:30.159 York. 00:44:28.599 --> 00:44:32.559 I'm the fiduciary of everything. I live 00:44:30.159 --> 00:44:34.719 in Massachusetts. I have a brother. He 00:44:32.559 --> 00:44:36.519 lives in Florida. 00:44:34.719 --> 00:44:38.119 Okay, you understand? That's a conflicts 00:44:36.519 --> 00:44:39.679 of law problem. 00:44:38.119 --> 00:44:42.400 It's a conflicts of law problem. I got a 00:44:39.679 --> 00:44:44.279 will and a trust from New York. I got an 00:44:42.400 --> 00:44:47.079 a fiduciary in Massachusetts. I got a 00:44:44.280 --> 00:44:49.400 beneficiary in Florida. It's a conflicts 00:44:47.079 --> 00:44:52.159 of law problem. Okay. It turns out that 00:44:49.400 --> 00:44:53.720 conflicts of law and trusts is is all 00:44:52.159 --> 00:44:55.079 derived from the second restatement 00:44:53.719 --> 00:44:56.239 written by Austin Wakeman Scott, you 00:44:55.079 --> 00:44:57.519 know, of 00:44:56.239 --> 00:45:00.119 Harvard Law School. 00:44:57.519 --> 00:45:01.719 And none of it works anymore. 00:45:00.119 --> 00:45:04.519 Right? None of it works anymore because 00:45:01.719 --> 00:45:08.000 it's all based on uh testamentary trust. 00:45:04.519 --> 00:45:09.840 It's based on territorial contacts. 00:45:08.000 --> 00:45:12.599 None of this works anymore. 00:45:09.840 --> 00:45:14.039 And nobody knows, right? Course continue 00:45:12.599 --> 00:45:16.279 to follow the second restatement we're 00:45:14.039 --> 00:45:17.559 getting increasingly bizarre decisions. 00:45:16.280 --> 00:45:19.200 The American Law Institute and Uniform 00:45:17.559 --> 00:45:20.759 Law Commission are doing new projects to 00:45:19.199 --> 00:45:23.599 have a new restatement or new uniform 00:45:20.760 --> 00:45:26.200 act. And they're completely rewritten to 00:45:23.599 --> 00:45:28.799 reflect the realities of on the ground 00:45:26.199 --> 00:45:29.679 practice now. Right? So, I'm the chair 00:45:28.800 --> 00:45:31.600 of the drafting committee for the 00:45:29.679 --> 00:45:33.559 Uniform Act. Kim Roosevelt University of 00:45:31.599 --> 00:45:35.279 Pennsylvania is the reporter for the for 00:45:33.559 --> 00:45:37.519 the restatement. Right? And so, we're 00:45:35.280 --> 00:45:39.760 coordinating. So, why? What's the 00:45:37.519 --> 00:45:42.639 purpose of that? Well, because like it's 00:45:39.760 --> 00:45:44.680 not so weird to see people die with 00:45:42.639 --> 00:45:47.719 family in another state. 00:45:44.679 --> 00:45:49.879 It's not so weird anymore. So, okay. Why 00:45:47.719 --> 00:45:52.439 is that important to me? It's important 00:45:49.880 --> 00:45:53.559 to me because I want to see that right. 00:45:52.440 --> 00:45:55.440 Want to see that right cuz that's a 00:45:53.559 --> 00:45:57.079 thing people are trying to do. And so, 00:45:55.440 --> 00:45:59.240 the claim, the thing I'm trying to 00:45:57.079 --> 00:46:00.079 suggest I'm mindful that I got to keep 00:45:59.239 --> 00:46:01.159 this 00:46:00.079 --> 00:46:02.679 tight cuz people got to get to their 00:46:01.159 --> 00:46:03.679 classes and if we can open the door to 00:46:02.679 --> 00:46:05.399 questions. 00:46:03.679 --> 00:46:07.559 The claim I'm trying to make is that 00:46:05.400 --> 00:46:10.800 this matters to people on a retail 00:46:07.559 --> 00:46:12.440 level. I'm not denying the preservation 00:46:10.800 --> 00:46:15.200 of the constitutional order and checks 00:46:12.440 --> 00:46:17.800 and balances and due process. That's 00:46:15.199 --> 00:46:21.159 important, obviously. It's predicate. 00:46:17.800 --> 00:46:26.240 I'm suggesting that on a retail level 00:46:21.159 --> 00:46:30.599 a as a equally if not more corrosive 00:46:26.239 --> 00:46:33.559 to a democratic republic rule of law is 00:46:30.599 --> 00:46:35.519 failure of private law to achieve the 00:46:33.559 --> 00:46:38.119 private ordering that people are 00:46:35.519 --> 00:46:40.199 seeking. When they when someone thinks 00:46:38.119 --> 00:46:41.639 they've got a deal and they don't, they 00:46:40.199 --> 00:46:43.000 think they've got a business arrangement 00:46:41.639 --> 00:46:44.879 and they don't, they think there's 00:46:43.000 --> 00:46:46.599 private sharing and they don't, they 00:46:44.880 --> 00:46:47.920 think they have a trust and they don't, 00:46:46.599 --> 00:46:50.000 they think they've made a will so 00:46:47.920 --> 00:46:51.920 Christina Fontnew doesn't get one penny 00:46:50.000 --> 00:46:55.079 and they don't. 00:46:51.920 --> 00:46:58.760 When that happens, it is corrosive to 00:46:55.079 --> 00:47:00.679 rule of law as much so as checks and 00:46:58.760 --> 00:47:02.359 balances whatever else cuz that's not 00:47:00.679 --> 00:47:03.879 what people are watching. People are 00:47:02.358 --> 00:47:05.799 trying to make payroll, they're trying 00:47:03.880 --> 00:47:07.800 to make they're trying to buy groceries, 00:47:05.800 --> 00:47:10.440 they're trying to make rent. And when 00:47:07.800 --> 00:47:11.680 private law fails them, the law has 00:47:10.440 --> 00:47:14.519 failed them. 00:47:11.679 --> 00:47:17.919 So, your role is a as a lawyer to these 00:47:14.519 --> 00:47:19.559 clients is to draft it right. Understand 00:47:17.920 --> 00:47:21.159 what they're doing and make the forms 00:47:19.559 --> 00:47:23.358 right. And as the lawyer in the 00:47:21.159 --> 00:47:25.719 litigation, show the court the way. And 00:47:23.358 --> 00:47:28.079 as the judge, find the way. And as the 00:47:25.719 --> 00:47:31.439 legislator to fix it. And as the lawyer 00:47:28.079 --> 00:47:33.880 to lobby. And if you do this and you 00:47:31.440 --> 00:47:36.920 choose as a path private law and that 00:47:33.880 --> 00:47:39.720 kind of practice, understand that you 00:47:36.920 --> 00:47:42.760 are as if not more important to the 00:47:39.719 --> 00:47:44.839 preservation of rule of law as anybody 00:47:42.760 --> 00:47:45.840 else. 00:47:44.840 --> 00:47:46.840 I was going to say something insulting 00:47:45.840 --> 00:47:49.320 of a colleague. We're not going to do 00:47:46.840 --> 00:47:50.519 that. It's being recorded. As anything 00:47:49.320 --> 00:47:52.760 else 00:47:50.519 --> 00:47:56.239 as anything I'm not going to do it. 00:47:52.760 --> 00:47:59.400 Anything so hard. As anything else 00:47:56.239 --> 00:48:01.279 as any It is absolutely is just as 00:47:59.400 --> 00:48:03.280 essential to preservation of rule of 00:48:01.280 --> 00:48:04.600 law. Okay, so I know people got 1:30. I 00:48:03.280 --> 00:48:06.440 can stay and talk if people want to ask 00:48:04.599 --> 00:48:07.839 questions or whatever, but I appreciate 00:48:06.440 --> 00:48:09.119 you giving me this last chance and I 00:48:07.840 --> 00:48:10.548 thank you for your patience and the 00:48:09.119 --> 00:48:12.567 indulgence. 00:48:10.547 --> 00:48:12.567 >> [applause] 00:48:19.717 --> 00:48:21.737 [applause] 00:48:29.920 --> 00:48:33.639 >> If anybody wants to ask Professor Oh, 00:48:32.039 --> 00:48:36.000 raise your hand. I'll bring the mic. 00:48:33.639 --> 00:48:36.000 Perfect. 00:48:38.320 --> 00:48:41.359 Oh, in this in this conversation what 00:48:39.960 --> 00:48:44.240 has changed in 10 years ago? 00:48:41.358 --> 00:48:45.559 Um so, relative to the So, so I I I 00:48:44.239 --> 00:48:47.358 think there are 00:48:45.559 --> 00:48:50.119 two or three things that 00:48:47.358 --> 00:48:52.119 that are different. So, one, when I uh 00:48:50.119 --> 00:48:54.319 10 years ago, I told the story of how I 00:48:52.119 --> 00:48:56.920 got into trusts and estates. 00:48:54.320 --> 00:48:58.519 And including like drafting my mother's 00:48:56.920 --> 00:49:00.320 will, which I'd never to talked about 00:48:58.519 --> 00:49:02.159 that publicly before. My mother died 00:49:00.320 --> 00:49:03.720 when I was 17 and so the reason I got 00:49:02.159 --> 00:49:05.079 into trusts and estates. So, that story 00:49:03.719 --> 00:49:06.599 is out there. I'm happy to repeat it 00:49:05.079 --> 00:49:08.400 again if people want to hear it, but 00:49:06.599 --> 00:49:11.400 like that was one a piece. 00:49:08.400 --> 00:49:12.559 The other was um I uh 00:49:11.400 --> 00:49:14.960 um 00:49:12.559 --> 00:49:18.279 I did not feel I did not have the sense 00:49:14.960 --> 00:49:20.199 10 years ago of um 00:49:18.280 --> 00:49:22.560 uh 00:49:20.199 --> 00:49:24.799 of the eclipsing of the importance of 00:49:22.559 --> 00:49:26.480 private law in quite the same way I'm 00:49:24.800 --> 00:49:28.400 feeling it now. 00:49:26.480 --> 00:49:31.000 Right? So, as a turn And I also don't 00:49:28.400 --> 00:49:34.079 think that I understood 00:49:31.000 --> 00:49:36.320 uh I didn't have this feel for um 00:49:34.079 --> 00:49:37.799 the role of the lawyer in these three 00:49:36.320 --> 00:49:38.840 pieces. I mean, I talked about it, but I 00:49:37.800 --> 00:49:40.240 didn't have it organized in that way. 00:49:38.840 --> 00:49:42.480 So, the big difference is one is this 00:49:40.239 --> 00:49:43.719 this eclipsing and the other is I didn't 00:49:42.480 --> 00:49:45.480 like it's very it's customary in these 00:49:43.719 --> 00:49:47.119 talks to tell your own story. I didn't 00:49:45.480 --> 00:49:48.760 do that here. I'm happy to talk now if 00:49:47.119 --> 00:49:50.159 you want to hear it, do it again, but 00:49:48.760 --> 00:49:52.520 that those are the that's the quick 00:49:50.159 --> 00:49:52.519 answer. 00:49:55.760 --> 00:49:59.640 Does anyone other anyone else have any 00:49:57.320 --> 00:50:02.400 other questions for Professor Sitkoff? 00:49:59.639 --> 00:50:02.400 You're running class. 00:50:05.079 --> 00:50:09.199 Great. Thank you so much for that. We 00:50:06.519 --> 00:50:09.199 truly appreciate it.