Full Transcript
https://www.youtube.com/watch?v=vtWb0mFUojI
[00:00] Well, good afternoon everyone.
[00:02] It is so amazing to see so many familiar faces, especially coming out of such an amazing barristers this past Saturday.
[00:09] Thank you all so much for being here.
[00:11] My name is Gabby Mestre.
[00:13] I'm one of your class of 2026 class marshals and it is a distinct honor to kick off our last lecture series today and introduce the brilliant Professor Robert Sitkoff.
[00:23] Professor Robert Sitkoff is the Austin Wakeman Scott Professor of Law and the John L. Gray Professor of Law.
[00:30] He's an expert in many many fields.
[00:32] Trust me, if I told you all of his accomplishments, I would be the one giving the lecture today and not him.
[00:37] Um, but he specializes in wills, trusts, estates, and fiduciary administration.
[00:43] Professor Sitkoff clerked for then Chief Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit.
[00:49] He taught at both NYU and Northwestern before joining the Harvard Law School faculty in 2007, where he became the youngest professor to receive a chair in the history of the school.
[00:58] Professor Sitkoff has been published in
[01:01] Professor Sitkoff has been published in leading scholarly journals such as the leading scholarly journals such as the Yale Law Journal, the Stanford Law Review, the Columbia Law Review, the Journal of Law and Economics, and many many others.
[01:10] Professor Sitkoff is a co-author of Wills, Trusts, and Estates, the most popular American coursebook on Trusts and Estates, and he is a co-editor of the Oxford Handbook of Fiduciary Law.
[01:19] Professor Sitkoff's research has been featured in the New York Times, Wall Street Journal, and Financial Times, amongst other media.
[01:26] He's an active participant in Trusts and Estates law reform.
[01:29] He serves on the Uniform Law Commission as a commissioner for Massachusetts.
[01:34] He previously served as a member of several other drafting committees for Uniform Trusts and Estates Acts, including as chair of the drafting committee for the Uniform Directed Trust Act.
[01:41] And on a personal note, I took Professor Sitkoff's Trusts and Estates class last year and found it to be one of the best classes I've taken here at the law school.
[01:49] So, now, without further ado, I know none of you are here to hear me speak.
[01:55] Please help me in welcoming Professor Robert Sitkoff.
[01:58] Thank you.
[02:04] Uh, well, thank you.
[02:06] That's a very generous and kind um uh, introduction.
[02:13] So, let me say something about uh, what what you just said and then I'll get into some of the things I wanted to say.
[02:18] So, um, from time to time people make that comment about uh, the youngest chair.
[02:22] So, I'm going to tell you this the true story what actually happened.
[02:25] So, I was a visitor here in uh, spring of um uh, spring of 2007.
[02:31] Elena Kagan was the dean at the time.
[02:33] Uh, it was a good time to visit Harvard.
[02:35] It was a period of promiscuous hiring, so it was a good time to visit.
[02:39] And uh, anyway, the faculty had a meeting and voted my offer.
[02:42] Elena came to the office and she we talked for a while and then she got up to leave.
[02:47] You know by now Colombo? Like she turned at the door, she turned around, "Oh, one more thing.
[02:50] If you If you say yes, you'll be the John L. Gray uh, Professor of Law."
[02:54] I said, "Oh my goodness, that's that's amazing.
[02:58] That's really early in career. I'm 31."
[02:59] And I said, "That's pretty early to have a uh, chair. Oh my goodness."
[03:04] And she said, "Well, the the
[03:06] goodness.
[03:08] And she said, "Well, the the donor restricted it to a specialist in Trusts and Estates, what else am I supposed to do with it?"
[03:10] So, that's actually what what what happened.
[03:12] Okay, anyway, um, so I I thank you for inviting me to do this.
[03:14] It's it's a quite an honor.
[03:17] Um, one of the reasons I moved here now about 20 years ago was for you, for the students.
[03:19] Your curiosity and energy and engagement, uh, hunger to grow and learn has been exciting and really the best part of the job.
[03:22] It's made me a better teacher, a better scholar, better lawyer.
[03:25] You have over the years, including the last 2 years, held me accountable, forced me to think harder and deeper about uh, issues.
[03:29] A little bit later in this talk, I'm going to quote a line that one of you wrote in your exam and I've lifted and put in the casebook as it's a good it's a good line.
[03:31] But also, you have been um, unfailingly generous.
[03:33] As some of you know, the past year or two has been a little bit rough for me.
[03:35] My father died, I got a
[04:07] For me, my father died, I got a concussion, each of my three children had significant health issues, one needed a surgery.
[04:13] It's been a bumpy couple of years and throughout that whole period, you've all been people taking the classes in particular have been uncommonly generous and accommodating my bumpiness and not, you know, there was the one class I had to leave partway through to go lie down because of my head and whatever.
[04:28] And so thank you.
[04:31] So, last lecture, I mean, I hope it's not my last lecture.
[04:35] I mean, it could be, but that's not the, you know, hope for the best, but plan for the worst.
[04:40] That's my That's our field's motto.
[04:42] I don't think it's going to be the last.
[04:44] People are laughing.
[04:45] I mean that for real.
[04:45] Hope for the best, but plan for the worst.
[04:47] So, I I I don't think it's actually going to be the last lecture, but I do suspect that for many of you, this will be my last chance to indoctrinate.
[04:56] Right?
[04:56] The last chance to tell you some things that I think are important that I think will be are important to me for you to understand as you embark on being a lawyer, as you embark on the journey of the rest of your life.
[05:06] And I I hope
[05:09] of the rest of your life.
[05:09] And I I hope it's not the last chance.
[05:10] I hope you it's not the last chance.
[05:10] I hope you will stay in in touch and reach out and email.
[05:13] will stay in in touch and reach out and email.
[05:13] Email's easy, right?
[05:15] email. Email's easy, right?
[05:15] I'm in Hauser or whatever, but I understand for many this will be.
[05:16] I'm in Hauser or whatever, but I understand for many this will be.
[05:18] understand for many this will be.
[05:18] So, I I puzzled for a little while about what what could I tell you?
[05:20] So, I I puzzled for a little while about what what could I tell you?
[05:20] You know, what what would I what would what would I want to do in this last lecture?
[05:22] what what could I tell you?
[05:22] You know, what what would I what would what would I want to do in this last lecture?
[05:23] what what would I what would what would I want to do in this last lecture?
[05:25] I want to do in this last lecture?
[05:25] So, the problem is I have a pretty narrow range of knowledge.
[05:27] So, the problem is I have a pretty narrow range of knowledge.
[05:29] narrow range of knowledge.
[05:30] I I
[05:31] I I I know a lot about Trusts and Estates and fiduciary law.
[05:33] I I know a lot about Trusts and Estates and fiduciary law.
[05:33] I also know about classic Star Trek, coaching Little League, and the Yankees, making pancakes.
[05:35] and fiduciary law.
[05:35] I also know about classic Star Trek, coaching Little League, and the Yankees, making pancakes.
[05:37] classic Star Trek, coaching Little League, and the Yankees, making pancakes.
[05:39] League, and the Yankees, making pancakes.
[05:39] None of this seemed like really appropriate.
[05:41] making pancakes.
[05:41] None of this seemed like really appropriate.
[05:41] So, I went back and I gave one of these some years ago.
[05:45] like really appropriate.
[05:45] So, I went back and I gave one of these some years ago.
[05:46] and I gave one of these some years ago.
[05:46] Was it 10 years ago?
[05:48] Was it 10 years ago?
[05:48] I looked at that video and I I thought, "What have I learned since then?"
[05:50] video and I I thought, "What have I learned since then?"
[05:50] And first thing came to mind was how to do colonoscopy preps.
[05:52] learned since then?"
[05:52] And first thing came to mind was how to do colonoscopy preps.
[05:54] came to mind was how to do colonoscopy preps.
[05:56] preps.
[05:56] But that seemed like not also what we should do uh
[05:58] But that seemed like not also what we should do uh
[06:00] should do uh We could, if we we maybe the Q&A, we can uh
[06:02] We could, if we we maybe the Q&A, we can uh
[06:03] uh So, my family said, "Don't talk about colonoscopy."
[06:05] So, my family said, "Don't talk about colonoscopy."
[06:05] So, I win.
[06:07] colonoscopy."
[06:07] So, I win.
[06:07] There I did it.
[06:08] Uh, so let me tell you what I did.
[06:09] so let me tell you what I did.
[06:09] I I dug up the outline, dug up my notes from
[06:11] Up the outline, dug up my notes from that.
[06:13] And what I was struck as I looked at those notes from all those years ago.
[06:15] When I did one of these talks, what I was really struck by was the very different perspective, my very different understanding of what I told that class those years ago.
[06:24] Right?
[06:27] And so, what I want to do today, and that reflects 10 years of growth, right?
[06:29] 10 years of learning, 10 more years of experience than you, 10 more years of just life.
[06:34] And so, what I want to do today is I'm going to talk about a variety several of the same things I talked about then, but from a refreshed lens with what is the current my current state of development.
[06:47] And in doing that, what I'm trying to model for you is the never-ending growth, right?
[06:51] The idea that you will continue to learn and develop as a lawyer, as a person, as a child, a sibling, a partner, whatever.
[07:00] The idea that you need to keep learning.
[07:02] You need to keep growing.
[07:03] You want to keep reevaluating what you think you know and look at these things afresh.
[07:08] So, here's what we're going to do.
[07:09] I'm going to tell you I'm going to try to tell you
[07:11] To tell you I'm going to try to tell you some things that I wish I knew.
[07:14] I wish some things that I wish I knew.
[07:14] I wish that I knew when I was you.
[07:16] Right?
[07:16] When that I knew when I was you.
[07:16] Right?
[07:18] When I was getting ready to graduate and go out.
[07:19] So, I want to tell you four things that I didn't really understand then and
[07:22] that I didn't really understand then and I think in truth, I didn't even really
[07:24] I think in truth, I didn't even really understand 10 years ago.
[07:26] I mean, I thought I did and I talked about them in
[07:27] thought I did and I talked about them in that talk, but I understand them
[07:29] that talk, but I understand them differently now and I'm sure in 10
[07:31] differently now and I'm sure in 10 years, I'll understand them even
[07:32] years, I'll understand them even differently then.
[07:34] But I want to talk to you about what I think I understand
[07:37] you about what I think I understand now.
[07:38] now.
[07:40] You don't have to accept my vision.
[07:40] You don't have to accept these things that
[07:41] I'm going to be telling you.
[07:43] I want to offer this as a kind of as a idea for
[07:46] offer this as a kind of as a idea for you to take in and then absorb and do
[07:49] you to take in and then absorb and do with what you wish.
[07:50] Right?
[07:50] Take this into the full body of your development
[07:53] into the full body of your development as a person, as a lawyer, whatever else.
[07:56] as a person, as a lawyer, whatever else.
[07:58] But mostly, what I want to do is get you thinking.
[08:00] thinking.
[08:00] I want you to look at this as a broad picture.
[08:02] a broad picture.
[08:02] You're about to enter a learned profession.
[08:05] learned profession.
[08:05] And that term learned for a learned profession has
[08:06] learned for a learned profession has real meaning.
[08:08] real meaning.
[08:08] Right?
[08:08] It's not just that we're self-regulating and the like.
[08:10] we're self-regulating and the like.
[08:10] It's that it's a profession that requires
[08:13] that it's a profession that requires study.
[08:13] It requires learning.
[08:16] People are coming to you for your learning and for what you can think, what you can do for them.
[08:22] And so, I want to push you a little bit.
[08:24] So, this is going to be a last lecture about the law and specifically law that you're going to be doing.
[08:30] And even more specifically, I'm going to tell you what I think is my what I'm going to tell you what is my understanding of the law that many of you are going to be doing and why it matters and what I think is your responsibility to your clients, to the practice of law, and to society as a member of this learned profession.
[08:53] And I think I narrow this into four takeaways, four buckets.
[08:55] Let me tell you what these four buckets what these four buckets are going to be.
[09:00] So, one is not a shock for people who took the class.
[09:01] I want to say a little bit about the relationship between public and private law.
[09:05] I want to say something about the relationship between public and private law.
[09:08] This is foundational.
[09:10] This is definitional.
[09:11] This is something that we're going to need to all have this conversation, which is not really a
[09:14] conversation, which is not really a conversation, but it's the polite way to conversation, but it's the polite way to say it.
[09:19] So, to have this conversation, we need to have we need to have a common vocabulary.
[09:22] All right. The second thing is I want to say something about private law and private ordering, which is the law that most of you are going to be doing.
[09:29] And I want to tell you what I think it is that you'll be doing and why it matters.
[09:35] I want to say why it matters cuz I I think that's where rule of law really has power and I think that's where it affects people on the ground.
[09:43] So, the claim I'm going to be making is this is retail law.
[09:46] That private ordering, private law is retail law.
[09:48] This is what not just what most of you are going to be doing, but this is what many of your clients are coming to coming to you for in their day-to-day life.
[10:00] And I think it is unfairly denigrated in elite law schools.
[10:03] I think that we don't give enough attention and time to the significance of private ordering.
[10:10] We do not encourage you to go practice in this area.
[10:13] We don't congratulate you for the
[10:15] area.
[10:17] We don't congratulate you for the contributions you make in doing it, and contributions you make in doing it, and yet we send most of you out to do that.
[10:19] And I think you should feel really good about it.
[10:21] I think it's absolutely essential.
[10:24] And I want to tell you why.
[10:27] Okay, the third bucket which follows from that is your role as lawyer.
[10:31] And I mean this on the one hand as a fiduciary.
[10:33] So, as a member of this learned profession to whom your client turns for help.
[10:37] But also in terms of your responsibility for what the law is going forward.
[10:42] It's a long tradition in these talks for folks up here to be telling you about your responsibility as a lawyer, but it's usually in a public law frame and at the end of the Republic as we know it unless you do something or another.
[10:56] So, I I I want to make a subtly different claim.
[10:58] I want to say that your role in um uh policing the reform of private law is absolutely essential to the development law and even more so now for a variety of developments in the nature of private law, increased codification, right?
[11:13] In
[11:16] law, increased codification, right?
[11:19] In the disfiguring of statutory the disfiguring of statutory interpretation because of public law
[11:21] interpretation because of public law battles and so on.
[11:23] So, I want to say a little bit about the role you're going
[11:24] to play and what that matters and that's
[11:26] the
[11:27] um
[11:28] um public service aspect of being a member
[11:30] of a learned profession.
[11:32] There is a public service aspect in the private law
[11:35] domain also and that's the thing I want
[11:36] to talk about.
[11:38] All right.
[11:38] So, then there's number four.
[11:40] So, number four is going to be to tie these three together.
[11:42] I want to offer you a competing vision
[11:45] of rule of law.
[11:48] This is weirdly maybe a subversive
[11:50] notion of rule of law.
[11:54] I want to suggest rule of law as private ordering as
[11:57] private law.
[11:58] Right?
[12:00] So, instead of talking about rule of law as in the organization of civil
[12:02] society, people and the state, public
[12:04] law.
[12:06] I want to talk about rule of law
[12:08] from the standpoint of we order your personal and professional affairs with
[12:11] other people and we enforce it, we
[12:13] resolve it, we make it work through law
[12:16] resolve it, we make it work through law rather than through baseball bats.
[12:19] rather than through baseball bats. Right?
[12:20] I'm going to talk about that kind of retail rule of retail rule of law.
[12:24] of retail rule of retail rule of law. And so, this is private law these forms
[12:27] as rule of law and then the role of you, of lawyers, in making this all work.
[12:34] Okay, I say this is So, let's let's go through these first. So, first, what do I mean when I say public law?
[12:40] We say public law and private law. So, public law is constitutional law, administrative law, criminal law, and the like.
[12:45] This is the law that um organizes the state and your relationship to it.
[12:53] This is the organization of the state, right?
[12:55] The coercive power of the state and how this how this is going to operate.
[13:00] So, this is the front page news, right?
[13:02] This is where everyone's waiting everyone waits for Supreme Court decisions and writes about that every year.
[13:07] This is what gets these headlines. This is this notion that that um uh
[13:12] this is what's going to this is why we have a leg reg class. This is what if you pick up the Harvard Law Review is
[13:17] You pick up the Harvard Law Review, it's going to predominate its pages.
[13:19] This is what draws people because you know, you go to college, take political science, the Constitution exerts this gravitational pull on you.
[13:25] It's very exciting. It's lots of fun. It's fine.
[13:30] So, you and there's a long-standing history in these talks of um of expressions of worry about the current state of our civil society and whether our public law institutions will be able to abide given whatever crisis is at hand at one of these lectures.
[13:46] And an exhort and you are exhorted to engage with these problems because the Republic depends upon it and the whole order matters.
[14:00] And I'm not saying that's not that there's not something to it, but if you go back and you look at some of these lectures on YouTube, that's what this is that's what this is about.
[14:07] It's a critical moment in our constitutional republic and whatever else.
[14:13] But I also want to say that's not a new sentiment.
[14:16] So, I just took a minute on
[14:18] Sentiment. So, I just took a minute on Google.
[14:20] I'm going to read you a line here.
[14:22] Um it is not to be disguised that we have arrived at a critical period of our country's history.
[14:25] And that the capacity of the people for maintaining a constitutional constitutional government is being subjected to a severer test than ever before.
[14:35] If, however, either the legislative or executive disregard the limits upon their power fixed by the people what we suppose to be a constitutional republic becomes the mere tyranny of the majority.
[14:47] Okay, that was from the inauguration speech of a of a governor of California in 1867.
[14:52] You know, I'm just saying I'm not trying to say that there aren't challenges today.
[14:58] I'm trying to say that the fact of challenges to the public civil order is not a new thing.
[15:05] Right? It's a perennial thing and it is an important thing and many people here focus on that and want to talk about it and I don't mean to say it's not significant.
[15:14] I just want to say it's kind of an evergreen
[15:18] kind of an evergreen problem.
[15:19] problem.
[15:21] And it is I think unfairly eclipsed a different problem and that's the one I want to draw to your attention.
[15:27] That is the problem of confronted by private law.
[15:30] That's the law of organizing your relationships, your relationships with other people, with entities, with organizations.
[15:39] Right? This is the law of of private ordering, buying and selling things, of jobs, of organizing business, of forming a family.
[15:47] Under the organizations. You understand? This is retail law. This is your day-to-day life.
[15:55] In truth, this is the law that most people butt up with all the time. Right?
[16:00] So, we start a little bit late. Why? Cuz your Sweetgreen's delivery was a little bit late.
[16:05] Okay, is this a breach of contract? Are we going to deal with it?
[16:06] Every everything that's going on is all private ordering.
[16:08] Right? So, my nose on the side, you know, back in my day when I was in law school we just they gave us deep-dish pizza, which isn't even pizza, right?
[16:17] It's a soufflé. Pizza everything. It's not
[16:20] Soufflé. Pizza everything.
[16:20] It's not pizza.
[16:22] So, it's it's pizza.
[16:22] So, it's it's always always pizza whatever.
[16:24] This is always always pizza whatever.
[16:24] This is kind of fancy.
[16:26] Kind of fancy.
[16:26] Anyway, whatever, it's Harvard.
[16:28] Okay, so whatever, it's Harvard.
[16:28] Okay, so when I say rule of law
[16:30] When I say rule of law right?
[16:32] When I say rule of law, you're habitualized to think about like legal
[16:34] Checks on the executive.
[16:36] Right? You're thinking about checks and balances.
[16:37] You're thinking about due process.
[16:39] You're thinking about deprivation of life liberty, or
[16:41] Property, and and the like.
[16:43] But I want to suggest something cruder and more
[16:45] Base. Right? Rule of law is
[16:47] An organized, predictable apparatus for
[16:51] Dealing with breakdowns in private
[16:55] Ordering.
[16:58] For being able to make private ordering
[16:59] And understanding that this isn't that
[17:02] it's not going to come apart.
[17:04] Do you understand?
[17:06] This organization not by force, by by rule of law.
[17:08] So, if I make a deal to have the Sweetgreen delivered
[17:11] And it's not, I'm not going to go with a
[17:13] Baseball bat and beat up the manager
[17:15] There. That we have a way of resolving
[17:16] This way of resolving this dispute.
[17:18] There.
[17:21] This way of resolving this dispute, right?
[17:23] That as a there's an organized way to invoke the coercive power of the state to make sure the deal we struck, the organization that we made works.
[17:31] Okay, so let's take a step back.
[17:33] Let's be political theorists for a for just a a minute here.
[17:37] So, what's our point here?
[17:38] What's the point of organizing in civil society, right?
[17:41] So, all this time we talk about the the constitutional republic is in danger and will fall or you know, whatever.
[17:47] Why do we care, right?
[17:48] What's the point of the constitutional republic?
[17:50] Someone's like, I don't want to do Locke and Rousseau and whatever.
[17:53] That's that's fine.
[17:53] What I'm getting at The point I want to ask is why are we organizing that civil uh society, right?
[18:00] Why do we care?
[18:00] Why do we want this this organized the state, right?
[18:04] We don't organize the state just to have the state.
[18:07] Right?
[18:07] We don't organize the state to just have the state.
[18:08] The liberal and I mean like John Stuart Mill liberal, right?
[18:14] Like the um small L liberal.
[18:14] A liberal society the point of organizing the state is to facilitate
[18:22] facilitate private ordering.
[18:24] private ordering. Right?
[18:26] Right? It's to allow individuals to flourish and organize their affairs.
[18:27] flourish and organize their affairs. Right?
[18:29] So, the John Stuart Mill idea of liberty is that my liberty is to the
[18:32] liberty is that my liberty is to the extent to the tip of your nose and we
[18:33] extent to the tip of your nose and we can organize I can organize around that.
[18:35] can organize I can organize around that. So, what's the idea of civil society? To
[18:37] So, what's the idea of civil society? To police that.
[18:40] police that. So, I got to erect this constitutional republic in order to
[18:41] constitutional republic in order to what? In order to flourish.
[18:43] what? In order to flourish.
[18:45] But what does flourishing mean to me?
[18:47] That doesn't matter. Right? That's my problem to go out and organize.
[18:50] problem to go out and organize. Public law is the infrastructure that lets you
[18:52] law is the infrastructure that lets you then create the system of private law.
[18:55] then create the system of private law. In order to order your life.
[18:57] In order to order your life. The port The point of the order society of
[18:59] The point of the order society of liberty. Why is it so important you
[19:01] liberty. Why is it so important you don't deprive me of liberty without due process?
[19:02] process? What is that liberty to go and organize my life, to marry or not, to
[19:04] organize my life, to marry or not, to build a business or not, to contract or
[19:07] build a business or not, to contract or not, whatever.
[19:09] contract or not, whatever. All of these uh things.
[19:12] All of these uh things. Any that is So, what if you think of the
[19:14] Any that is So, what if you think of the civil
[19:15] civil uh society as something more than that,
[19:17] uh society as something more than that, you're actually profoundly illiberal
[19:20] you're actually profoundly illiberal in the classical sense. Because that's
[19:22] In the classical sense.
[19:24] Because that's what it that was the idea of individual liberty.
[19:26] So, so that's our first point.
[19:28] Right? Public law, private law, that's a sketch of what this is about.
[19:31] On this view, the project of private law is as if not more important than the project of public law.
[19:35] Right? That's what we're trying to get to let people go and do their thing.
[19:40] Okay, so that brings us to our second our second bucket.
[19:44] Which is the role of private law.
[19:47] How does this work? What does private law do for us in private ordering?
[19:51] So, let's take a step back and think this probably would have been useful at the start of law school.
[19:55] Let's kind of think about what do I mean by this landscape.
[19:58] We'll start with the big three: property, contract, and tort.
[20:02] Right, let's start with a first approximate This isn't exactly correct, but it's roughly uh true.
[20:07] Let's just start with the basic baseline that you have a property right in your things and in your person.
[20:11] It's not exactly true, but roughly speaking, you have some kind of right to your body and your and your things.
[20:24] So, what's contract? That is consensual transfer of those rights.
[20:26] transfer of those rights. What is tort? That's non-consensual
[20:29] What is tort? That's non-consensual transfer of those rights.
[20:31] transfer of those rights. That's how it makes sense now, right?
[20:32] That's how it makes sense now, right? So, we've got We have your rights,
[20:34] So, we've got We have your rights, that's property, and then we have a
[20:35] that's property, and then we have a contract, that's how you you give it
[20:37] contract, that's how you you give it away for in a deal, or you've got uh
[20:40] away for in a deal, or you've got uh tort, where after the fact we're filling
[20:43] tort, where after the fact we're filling in the deal cuz it was a non-consensual
[20:45] in the deal cuz it was a non-consensual transfer. So, what's everything else?
[20:47] transfer. So, what's everything else? Everything else are specialized
[20:49] Everything else are specialized applications of that. Corporation, LLC,
[20:52] applications of that. Corporation, LLC, marriage, trust, um agency, partnership,
[20:57] marriage, trust, um agency, partnership, wills, everything. They're all
[20:58] wills, everything. They're all specialized applications of the general
[21:01] specialized applications of the general of the of the of the uh big three.
[21:04] of the of the of the uh big three. They're all specialized forms, right?
[21:07] They're all specialized forms, right? They all reflect specialized special
[21:09] They all reflect specialized special instances of these uh problems.
[21:11] instances of these uh problems. Well, what happens when the private
[21:12] Well, what happens when the private ordering goes wrong, like really uh
[21:15] ordering goes wrong, like really uh wrong? Right, well, one, there's, you
[21:16] wrong? Right, well, one, there's, you know, criminal backup, or the other
[21:18] know, criminal backup, or the other there's bankruptcy, right? So, now we've
[21:19] there's bankruptcy, right? So, now we've got some public backstops when this uh
[21:23] got some public backstops when this uh uh when this goes wrong. But when you
[21:24] uh when this goes wrong. But when you think of it in this light, what's the
[21:26] think of it in this light, what's the project? The project is facilitative,
[21:29] project? The project is facilitative, not regulatory.
[21:31] not regulatory. Do you understand the little role of the
[21:32] Do you understand the little role of the lawyer now as like we This is old
[21:34] lawyer now as like we This is old expression, lawyer is transaction costs
[21:36] expression, lawyer is transaction costs uh engineer, lawyer to make this stuff
[21:39] uh engineer, lawyer to make this stuff uh work. The idea behind these these
[21:42] uh work. The idea behind these these rules is facilitative, not regulatory.
[21:45] rules is facilitative, not regulatory. It's a really big deal for reasons we'll
[21:47] It's a really big deal for reasons we'll come to in a in a minute when we think
[21:49] come to in a in a minute when we think about cases and we think about drafting
[21:51] about cases and we think about drafting statutes. The point I want to make now
[21:53] statutes. The point I want to make now is if that um
[21:54] is if that um our idea is to allow people to order the
[21:57] our idea is to allow people to order the way they want unless we have some policy
[21:59] way they want unless we have some policy reason not to let them do it.
[22:01] reason not to let them do it. Now, there may be good public policy
[22:03] Now, there may be good public policy reasons why we're not going to let you
[22:04] reasons why we're not going to let you do certain forms of of of private
[22:06] do certain forms of of of private ordering. That's fine.
[22:08] ordering. That's fine. But outside those areas, we want to
[22:10] But outside those areas, we want to facilitate. We want to make this work.
[22:12] facilitate. We want to make this work. So, go back to the machinery of all of
[22:15] So, go back to the machinery of all of these areas of law that you've uh
[22:17] these areas of law that you've uh learned.
[22:18] learned. Right, there's generally speaking pieces
[22:21] Right, there's generally speaking pieces that are for third parties.
[22:23] that are for third parties. Third parties need to understand what's
[22:24] Third parties need to understand what's going on, and there are pieces for the
[22:26] going on, and there are pieces for the people involved uh in the ordering.
[22:28] people involved uh in the ordering. Everything you've learned
[22:30] Everything you've learned and everything you'll be doing, I think,
[22:32] and everything you'll be doing, I think, will make more sense in that framework.
[22:33] will make more sense in that framework. I'm going to give you examples.
[22:35] I'm going to give you examples. Right, all is very common across private
[22:37] Right, all is very common across private law to see formation rules.
[22:40] law to see formation rules. You know what I mean I say formation
[22:41] You know what I mean I say formation rules? Like, how do you trigger this
[22:43] rules? Like, how do you trigger this form? So, let's go back to contract.
[22:46] form? So, let's go back to contract. Think about contract for a minute.
[22:47] Think about contract for a minute. Offer, acceptance, consideration. Think
[22:50] Offer, acceptance, consideration. Think of wills, writing, signature,
[22:51] of wills, writing, signature, attestation. Agency, you you you
[22:55] attestation. Agency, you you you manifest an intent that someone else can
[22:57] manifest an intent that someone else can bind you, or more recently, the written
[22:59] bind you, or more recently, the written power of attorney because we want to be
[23:00] power of attorney because we want to be able to prove this. If it's a LLC or
[23:03] able to prove this. If it's a LLC or corporation that has limited liability,
[23:05] corporation that has limited liability, you are filing with the state. All these
[23:06] you are filing with the state. All these formation rules,
[23:08] formation rules, what are they about, right? We are We're
[23:10] what are they about, right? We are We're starting to see they're about how we
[23:11] starting to see they're about how we signal to our
[23:13] signal to our our counterparty and third parties that
[23:15] our counterparty and third parties that we've created a form, right? What we are
[23:18] we've created a form, right? What we are uh what we're doing.
[23:20] uh what we're doing. And what do you see inside all of these
[23:22] And what do you see inside all of these different areas of law? You see rules of
[23:24] different areas of law? You see rules of governance or construction or default
[23:27] governance or construction or default rules.
[23:28] rules. So, you see how there's a common thread
[23:29] So, you see how there's a common thread across them. What does that look like?
[23:31] across them. What does that look like? Let's go back to contract. Do you
[23:33] Let's go back to contract. Do you remember Lady Lucy Duff Gordon? Right,
[23:35] remember Lady Lucy Duff Gordon? Right, exclusive dealing, where these So, where
[23:37] exclusive dealing, where these So, where we read the contract to say, "Well,
[23:39] we read the contract to say, "Well, there's an implied duty of good faith
[23:41] there's an implied duty of good faith and fair dealing."
[23:43] and fair dealing." So, this isn't just Cardozo saying,
[23:44] So, this isn't just Cardozo saying, "Well, I'm just going to make something
[23:45] "Well, I'm just going to make something up." That's facilitating. Well, these
[23:47] up." That's facilitating. Well, these two people made a deal. I you're
[23:49] two people made a deal. I you're exclusive You're my exclusive seller.
[23:51] exclusive You're my exclusive seller. Well, the only way that deal makes sense
[23:53] Well, the only way that deal makes sense is if you're going to make reasonable
[23:54] is if you're going to make reasonable efforts to sell. So, I'm going to
[23:56] efforts to sell. So, I'm going to facilitate What is the probable intent
[23:58] facilitate What is the probable intent of the people here? I'm not regulating
[24:01] of the people here? I'm not regulating their deal. I'm facilitating what their
[24:03] their deal. I'm facilitating what their ordering is meant uh to be. In
[24:05] ordering is meant uh to be. In partnership, corporation, LLC, you'll
[24:09] partnership, corporation, LLC, you'll see rules of profit sharing, of voting,
[24:11] see rules of profit sharing, of voting, of of um of preventing strategic
[24:14] of of um of preventing strategic behavior. Why? Well, these are all what
[24:16] behavior. Why? Well, these are all what we think are what the parties would have
[24:17] we think are what the parties would have wanted. And to varying degrees, we let
[24:20] wanted. And to varying degrees, we let the parties say something else. But if
[24:22] the parties say something else. But if they don't tell us something else, we
[24:23] they don't tell us something else, we give them these terms. Why? Because
[24:25] give them these terms. Why? Because we've learned this is what they're
[24:26] we've learned this is what they're trying to do. There's this It's kind of
[24:28] trying to do. There's this It's kind of magical.
[24:30] magical. Right, there's something uh
[24:31] Right, there's something uh astonishingly beautiful
[24:33] astonishingly beautiful and magical that there is on the shelf
[24:36] and magical that there is on the shelf all these forms that you do the right
[24:39] all these forms that you do the right formation signal, right? You check the
[24:42] formation signal, right? You check the right boxes, you do offer acceptance
[24:44] right boxes, you do offer acceptance consideration, you manifest an intent to
[24:47] consideration, you manifest an intent to with someone else to go into a business
[24:49] with someone else to go into a business for profit, that's partnership. You file
[24:51] for profit, that's partnership. You file with the state, that's your corporation.
[24:53] with the state, that's your corporation. You manifest an intent and give
[24:54] You manifest an intent and give property, that's a trust that you Once
[24:56] property, that's a trust that you Once you do the formation rule, you
[24:59] you do the formation rule, you immediately get all of this stuff.
[25:01] immediately get all of this stuff. That's not regulatory, it's
[25:02] That's not regulatory, it's facilitative. Trust fiduciary governance
[25:05] facilitative. Trust fiduciary governance and trustee removal. Or here's another
[25:07] and trustee removal. Or here's another one. This is a little bit weird to think
[25:09] one. This is a little bit weird to think of it this way. Marriage.
[25:11] of it this way. Marriage. Marriage is a private ordering form.
[25:13] Marriage is a private ordering form. Right, what hap- What's marriage? You go
[25:14] Right, what hap- What's marriage? You go through a formation ritual, right?
[25:16] through a formation ritual, right? There's a filing with the state, and
[25:19] There's a filing with the state, and then what do you get? You get a marital
[25:20] then what do you get? You get a marital property regime, that's your default.
[25:23] property regime, that's your default. You might like it or not, you can change
[25:25] You might like it or not, you can change it if you don't. And you get dissolution
[25:28] it if you don't. And you get dissolution rules.
[25:29] rules. Right, you have rules for dissolution
[25:31] Right, you have rules for dissolution during life, and you also get rules for
[25:32] during life, and you also get rules for dissolution at death. You might not like
[25:34] dissolution at death. You might not like those rules, so you contract otherwise
[25:36] those rules, so you contract otherwise if you don't. Right? So, right, this is
[25:39] if you don't. Right? So, right, this is I This is a romantic vision, right? So,
[25:41] I This is a romantic vision, right? So, like since I said my wife, "Hey, let's
[25:43] like since I said my wife, "Hey, let's have a long-term relational contract for
[25:45] have a long-term relational contract for horizontal integration or a household
[25:46] horizontal integration or a household production function." Right, so under
[25:47] production function." Right, so under This is This is private ordering. Now,
[25:49] This is This is private ordering. Now, we'll have, you know, franchisees. It's
[25:52] we'll have, you know, franchisees. It's private Do you understand private
[25:53] private Do you understand private ordering? Okay. So, you don't have to
[25:56] ordering? Okay. So, you don't have to reinvent every one of these things every
[25:59] reinvent every one of these things every time, right? The private law is
[26:00] time, right? The private law is providing that. What's your job as the
[26:02] providing that. What's your job as the lawyer? Your job as the lawyer is to
[26:05] lawyer? Your job as the lawyer is to understand the objective of the client.
[26:08] understand the objective of the client. Figure out which one of those forms will
[26:11] Figure out which one of those forms will get them closest to the objective, and
[26:14] get them closest to the objective, and then go
[26:16] then go make it right. Change default rules that
[26:18] make it right. Change default rules that don't fit. Do you see what I'm I'm
[26:20] don't fit. Do you see what I'm I'm getting at here at first approximation.
[26:22] getting at here at first approximation. That's not just a deal, right? That's
[26:24] That's not just a deal, right? That's your transactional side, right? Transact
[26:26] your transactional side, right? Transact Many of you will be transactional
[26:27] Many of you will be transactional lawyers. What you're doing is you're
[26:29] lawyers. What you're doing is you're taking one of the forms, and you're
[26:31] taking one of the forms, and you're jamming what people are trying to
[26:33] jamming what people are trying to achieve into that form. So, every time
[26:36] achieve into that form. So, every time that LLC agreement doesn't have a clause
[26:38] that LLC agreement doesn't have a clause in it is a failure that is needed is a
[26:41] in it is a failure that is needed is a failure of lawyering. Not to understand
[26:44] failure of lawyering. Not to understand that the form doesn't fit what they're
[26:45] that the form doesn't fit what they're trying to do. Every time the marriage
[26:48] trying to do. Every time the marriage comes asunder and it turns out those
[26:49] comes asunder and it turns out those rules aren't right, it's a failure.
[26:51] rules aren't right, it's a failure. Means that we should have we should that
[26:53] Means that we should have we should that we didn't de- change those default rules
[26:55] we didn't de- change those default rules to fit what the people uh wanted. Even
[26:59] to fit what the people uh wanted. Even tort, like let's use Goldberg, now Dean
[27:01] tort, like let's use Goldberg, now Dean Goldberg, right? The Pa- his vision of
[27:02] Goldberg, right? The Pa- his vision of tort, the Palsgraf principle, right?
[27:05] tort, the Palsgraf principle, right? Tort is all about you have a right, and
[27:07] Tort is all about you have a right, and if somebody takes that right, you're in
[27:08] if somebody takes that right, you're in compensation. Non-consensual transfer.
[27:11] compensation. Non-consensual transfer. Well, what's his idea of the Palsgraf
[27:12] Well, what's his idea of the Palsgraf principle? That it has to be
[27:14] principle? That it has to be foreseeable, right? If it's not
[27:15] foreseeable, right? If it's not foreseeable, you're taking someone
[27:17] foreseeable, you're taking someone else's right. Do you understand? That's
[27:18] else's right. Do you understand? That's just we're filling in what the contract
[27:20] just we're filling in what the contract would have been. We're giving you
[27:21] would have been. We're giving you compensation for what was uh taken.
[27:25] compensation for what was uh taken. So, on this view,
[27:27] So, on this view, on this view, the private law is just a
[27:29] on this view, the private law is just a set of forms. They're forms that to
[27:30] set of forms. They're forms that to varying degrees
[27:32] varying degrees uh
[27:33] uh let you organize, and to varying
[27:36] let you organize, and to varying degrees, let you customize the
[27:38] degrees, let you customize the off-the-shelf form to get at what you're
[27:40] off-the-shelf form to get at what you're trying uh to do. I understand there are
[27:43] trying uh to do. I understand there are problematic edge cases, right? We do
[27:44] problematic edge cases, right? We do them in class, that's what's fun, right?
[27:46] them in class, that's what's fun, right? So, in a contracts class, that's Hammer
[27:48] So, in a contracts class, that's Hammer and Sidway, that's promises not to
[27:50] and Sidway, that's promises not to smoke. And in my class, that's, well, is
[27:53] smoke. And in my class, that's, well, is I'm going to give the manuscripts to the
[27:55] I'm going to give the manuscripts to the Hebrew University in Jerusalem, is that
[27:57] Hebrew University in Jerusalem, is that declaration of trust? Is that a gift?
[27:59] declaration of trust? Is that a gift? Because a gift to the Those are
[28:01] Because a gift to the Those are problems with formation.
[28:04] problems with formation. Right, those are formation problems, and
[28:05] Right, those are formation problems, and you get a good lawyer involved, we'll
[28:07] you get a good lawyer involved, we'll solve it, right? We'll find a form, and
[28:10] solve it, right? We'll find a form, and we'll uh uh uh jam you uh jam you in.
[28:13] we'll uh uh uh jam you uh jam you in. Right? Okay. Another way of uh getting
[28:15] Right? Okay. Another way of uh getting at this cuz, you know, Passover is uh
[28:17] at this cuz, you know, Passover is uh coming. When I was in law school, one of
[28:18] coming. When I was in law school, one of my law school classmates invited me to
[28:20] my law school classmates invited me to her family's for a Passover. They had a
[28:22] her family's for a Passover. They had a tradition. Their tradition is you had to
[28:24] tradition. Their tradition is you had to interrupt the Seder at some point and
[28:26] interrupt the Seder at some point and make some unique contribution. So, what
[28:29] make some unique contribution. So, what I did was when they did the four
[28:30] I did was when they did the four children, the four questions, you know,
[28:32] children, the four questions, you know, they had the different questions, I
[28:33] they had the different questions, I chimed in as, "I got a fifth child, a
[28:35] chimed in as, "I got a fifth child, a Chicago-trained uh child." The
[28:37] Chicago-trained uh child." The Chicago-trained child asks, "Isn't
[28:40] Chicago-trained child asks, "Isn't Weren't the 10 plagues just a really a
[28:41] Weren't the 10 plagues just a really a failure in private ordering and
[28:43] failure in private ordering and enforcement mechanisms that if we had
[28:45] enforcement mechanisms that if we had had a enforcement regime, we wouldn't
[28:47] had a enforcement regime, we wouldn't have need to like kill all the firstborn
[28:49] have need to like kill all the firstborn in whatever uh uh Do you understand?
[28:50] in whatever uh uh Do you understand? Like, that's what hap- It's funny, but
[28:52] Like, that's what hap- It's funny, but also,
[28:54] also, that's what happens we don't have
[28:56] that's what happens we don't have enforceable private ordering forms. You
[28:59] enforceable private ordering forms. You have to slaughter people's children to
[29:01] have to slaughter people's children to get them to comply. I mean, that maybe
[29:02] get them to comply. I mean, that maybe hit him with a baseball bat. You This is
[29:04] hit him with a baseball bat. You This is an ordered society is about making
[29:07] an ordered society is about making ordering uh uh work. Okay, so that takes
[29:10] ordering uh uh work. Okay, so that takes us to the third point, third point I
[29:12] us to the third point, third point I want to talk about, which is your role.
[29:14] want to talk about, which is your role. So, I've already talked about your roles
[29:16] So, I've already talked about your roles as fiduciary for your client, but also,
[29:20] as fiduciary for your client, but also, as a member of a learned profession,
[29:22] as a member of a learned profession, meaning obligation to society. And I
[29:25] meaning obligation to society. And I want to suggest that obligation is not,
[29:26] want to suggest that obligation is not, you know, defending the republic from
[29:28] you know, defending the republic from falling, you know, whatever. I I mean,
[29:30] falling, you know, whatever. I I mean, that's important.
[29:32] that's important. But also, making this stuff work so
[29:35] But also, making this stuff work so within the society, we can flourish.
[29:37] within the society, we can flourish. Each person can flourish however they
[29:38] Each person can flourish however they want. So, we've talked about one of
[29:40] want. So, we've talked about one of those,
[29:41] those, which is being alert to the objective of
[29:44] which is being alert to the objective of the client. That means listening.
[29:46] the client. That means listening. Do you understand? That means like a
[29:47] Do you understand? That means like a good lawyer is a counselor Uh at law.
[29:50] good lawyer is a counselor Uh at law. You're listening. You're getting what
[29:51] You're listening. You're getting what they're trying to achieve and helping
[29:54] they're trying to achieve and helping the client get the right form and
[29:56] the client get the right form and customizing the form. Good transactional
[29:59] customizing the form. Good transactional work involves listening
[30:01] work involves listening with an empathetic ear, really getting
[30:04] with an empathetic ear, really getting the objective, counseling the client on
[30:06] the objective, counseling the client on the ways to get there, and making that
[30:08] the ways to get there, and making that form fit the circumstances. That's one
[30:11] form fit the circumstances. That's one we've been emphasizing. I want to talk
[30:12] we've been emphasizing. I want to talk about two others.
[30:14] about two others. One is
[30:16] One is when
[30:17] when dealing with private ordering gone awry.
[30:21] dealing with private ordering gone awry. So now we're talking about litigation
[30:22] So now we're talking about litigation and lawyering and in court and also
[30:24] and lawyering and in court and also judging.
[30:25] judging. And the third is going to be your
[30:27] And the third is going to be your responsibility for making the law for
[30:29] responsibility for making the law for making law work.
[30:31] making law work. So here's what I'm going to do. I want
[30:32] So here's what I'm going to do. I want to go back to this new case, a favorite
[30:34] to go back to this new case, a favorite it's a favorite case. I just started at
[30:36] it's a favorite case. I just started at teaching this. But we're going to do
[30:37] teaching this. But we're going to do this and some of you have seen it, but
[30:38] this and some of you have seen it, but we're going to do it differently now cuz
[30:40] we're going to do it differently now cuz we're a different prism. Remember this
[30:41] we're a different prism. Remember this guy? So this is Beck, right? This is the
[30:44] guy? So this is Beck, right? This is the Beck case from Montana. For those who
[30:46] Beck case from Montana. For those who don't know what happened here, so this
[30:48] don't know what happened here, so this guy Beck is in his truck and I takes his
[30:51] guy Beck is in his truck and I takes his iPhone, he makes a recording, right?
[30:54] iPhone, he makes a recording, right? Takes his iPhone, he makes a recording.
[30:57] Takes his iPhone, he makes a recording. Give all my possessions. If anything
[30:59] Give all my possessions. If anything happens to me whatsoever, I give all my
[31:02] happens to me whatsoever, I give all my possessions, everything to Jason Beck,
[31:06] possessions, everything to Jason Beck, my brother.
[31:08] my brother. I don't think I'll find out that night
[31:10] I don't think I'll find out that night get one thing.
[31:12] get one thing. Not one thing.
[31:15] Not one thing. Okay. So
[31:17] Okay. So we understand what's going on here? Now,
[31:19] we understand what's going on here? Now, he's trying to he's trying to order his
[31:21] he's trying to he's trying to order his affairs.
[31:22] affairs. Do you understand what I So here we have
[31:24] Do you understand what I So here we have a member of our civil society who is
[31:26] a member of our civil society who is exercising that right that we want
[31:28] exercising that right that we want everybody in our society to have to
[31:30] everybody in our society to have to order his affairs, right? This This is I
[31:33] order his affairs, right? This This is I is manifesting testamentary intent. I
[31:35] is manifesting testamentary intent. I don't Nobody's going to just I don't
[31:36] don't Nobody's going to just I don't think everybody does Anybody disagree
[31:37] think everybody does Anybody disagree here? He's This guy is telling us what
[31:39] here? He's This guy is telling us what he wants to happen to his property when
[31:42] he wants to happen to his property when he dies. Now, if he came to you once
[31:45] he dies. Now, if he came to you once you're licensed or he came to me, I am
[31:47] you're licensed or he came to me, I am licensed. If
[31:49] licensed. If if it came to you, came to me it comes
[31:51] if it came to you, came to me it comes to me, what would we do? Well, I know
[31:53] to me, what would we do? Well, I know the forms, right? I'm like, "Oh, we're
[31:54] the forms, right? I'm like, "Oh, we're going to tell her this. We can do a
[31:55] going to tell her this. We can do a revocable trust. We can do a will." We I
[31:57] revocable trust. We can do a will." We I got lots of forms. And I can make it fit
[32:00] got lots of forms. And I can make it fit and I can do this right and I can make
[32:01] and I can do this right and I can make sure Christina Fontenot doesn't see a
[32:03] sure Christina Fontenot doesn't see a penny. No problem. Good to go, right?
[32:06] penny. No problem. Good to go, right? But he didn't.
[32:08] But he didn't. Right? Didn't have a a lawyer there,
[32:10] Right? Didn't have a a lawyer there, right? So there was no transactional
[32:12] right? So there was no transactional lawyer involved. So where are we now?
[32:14] lawyer involved. So where are we now? Well, the lawyer's involved after he
[32:16] Well, the lawyer's involved after he dies when his brother brings this to
[32:18] dies when his brother brings this to court. When his brother brings this to
[32:20] court. When his brother brings this to court and wants to a probate it. So now
[32:23] court and wants to a probate it. So now remember I said we have three spots. One
[32:24] remember I said we have three spots. One is the client comes to you, we're going
[32:26] is the client comes to you, we're going to help them order. Second is it gets
[32:28] to help them order. Second is it gets busted and now we're in court. So what
[32:31] busted and now we're in court. So what can we do when we're in court? Here the
[32:33] can we do when we're in court? Here the claim I want to make
[32:35] claim I want to make is that our grand debates about
[32:37] is that our grand debates about constitutional structure, about public
[32:39] constitutional structure, about public law have disfigured
[32:41] law have disfigured our reasoning in private law cases.
[32:44] our reasoning in private law cases. Right? We are we're bringing the wrong
[32:46] Right? We are we're bringing the wrong We're bringing an inappropriate
[32:47] We're bringing an inappropriate methodology to these cases. So here's
[32:49] methodology to these cases. So here's the statute at issue. Here's the statute
[32:52] the statute at issue. Here's the statute in this case.
[32:54] in this case. A document or a writing added upon a
[32:56] A document or a writing added upon a document
[32:58] document is probatable if there's clear and
[33:00] is probatable if there's clear and convincing evidence the decedent
[33:02] convincing evidence the decedent intended the document to be his will.
[33:05] intended the document to be his will. Everybody agrees this guy meant for the
[33:07] Everybody agrees this guy meant for the for the for the video to be a will.
[33:09] for the for the video to be a will. Right? The court says so in the
[33:10] Right? The court says so in the decision. This this reflects the
[33:12] decision. This this reflects the testamentary intent. Nobody's doubting
[33:13] testamentary intent. Nobody's doubting that he wants this video to be his will.
[33:16] that he wants this video to be his will. It's a statutory interpretation case. Is
[33:18] It's a statutory interpretation case. Is the recording a document? Is the
[33:21] the recording a document? Is the recording a document or a
[33:24] recording a document or a writing upon a document?
[33:26] writing upon a document? That's the question.
[33:28] That's the question. Okay, that's that's fine. So let's do
[33:30] Okay, that's that's fine. So let's do the internal and then the external.
[33:31] the internal and then the external. Here's how the court resolved the case.
[33:33] Here's how the court resolved the case. The court says well, the statute is
[33:34] The court says well, the statute is clear and unambiguous.
[33:37] clear and unambiguous. It's always a warning, right? When we
[33:38] It's always a warning, right? When we say a statute is clear and unambiguous.
[33:40] say a statute is clear and unambiguous. Statute is clear and unambiguous. It
[33:42] Statute is clear and unambiguous. It doesn't that the the video is not.
[33:45] doesn't that the the video is not. Okay, why? Well, it says document or a
[33:48] Okay, why? Well, it says document or a writing upon a document. So to be a
[33:50] writing upon a document. So to be a document, you must be capable of having
[33:53] document, you must be capable of having writing put upon it.
[33:55] writing put upon it. There's no It's Well, there's a
[33:56] There's no It's Well, there's a recording. You can't put a writing upon
[33:58] recording. You can't put a writing upon that. So writing has to A document must
[34:01] that. So writing has to A document must be something that has writing on it.
[34:03] be something that has writing on it. A document is not a document if it
[34:05] A document is not a document if it doesn't have a writing upon it. So this
[34:07] doesn't have a writing upon it. So this is not that, says the court. That's one
[34:10] is not that, says the court. That's one argument. Secondly, the court says also
[34:12] argument. Secondly, the court says also we see that our that there's this
[34:14] we see that our that there's this uniform uniform electronic
[34:16] uniform uniform electronic wills act, which our state has not
[34:19] wills act, which our state has not adopted.
[34:20] adopted. But it says to be an electronic will, it
[34:23] But it says to be an electronic will, it has to be readable as text. And this is
[34:25] has to be readable as text. And this is not readable as text. So that reinforced
[34:27] not readable as text. So that reinforced our conclusion that's definitely not.
[34:29] our conclusion that's definitely not. Okay, that's how the court answers this
[34:30] Okay, that's how the court answers this question. Do you see how the the mode of
[34:32] question. Do you see how the the mode of reasoning here?
[34:33] reasoning here? This is about limiting power.
[34:36] This is about limiting power. Do you see this very public law way of
[34:37] Do you see this very public law way of thinking? It's the claim I want to make.
[34:39] thinking? It's the claim I want to make. This about protecting, about limited
[34:41] This about protecting, about limited power, about well, I'm concerned about
[34:44] power, about well, I'm concerned about the coercive power of the state. None of
[34:45] the coercive power of the state. None of that's an issue here, right?
[34:47] that's an issue here, right? This is a facilitative statute.
[34:50] This is a facilitative statute. This is when I have overwhelming
[34:51] This is when I have overwhelming evidence that the thing was meant to be
[34:53] evidence that the thing was meant to be a will, it should be a will.
[34:55] a will, it should be a will. Now, I'm not saying that it's clear that
[34:57] Now, I'm not saying that it's clear that the right that the video is in or the
[34:58] the right that the video is in or the video is not in. I'm just saying there's
[35:00] video is not in. I'm just saying there's nothing like that there. It's a right?
[35:03] nothing like that there. It's a right? The claim I'm making is the
[35:04] The claim I'm making is the preoccupation with public law
[35:07] preoccupation with public law obscured from the court what to do. And
[35:09] obscured from the court what to do. And the court wants to think that it's super
[35:11] the court wants to think that it's super textualist, right? A writing or document
[35:14] textualist, right? A writing or document of a writing upon a document and how
[35:15] of a writing upon a document and how it's reasoning. And then of course it
[35:17] it's reasoning. And then of course it makes this totally non-textual turn to
[35:19] makes this totally non-textual turn to start reading a statute that was never
[35:20] start reading a statute that was never even adopted.
[35:22] even adopted. That was never even adopted, right?
[35:24] That was never even adopted, right? Okay. What would be another way to think
[35:26] Okay. What would be another way to think about the Let's do another way to think
[35:28] about the Let's do another way to think of this. So here's the one One of you, I
[35:30] of this. So here's the one One of you, I don't know if it was in this room.
[35:31] don't know if it was in this room. Somebody in their exam wrote this.
[35:34] Somebody in their exam wrote this. Well, if you have a statute that says a
[35:36] Well, if you have a statute that says a farm animal or a person riding upon a
[35:39] farm animal or a person riding upon a farm animal doesn't make chickens no
[35:41] farm animal doesn't make chickens no longer farm animals cuz you can't ride a
[35:43] longer farm animals cuz you can't ride a chicken.
[35:44] chicken. Right? A Suppose you have a statute that
[35:46] Right? A Suppose you have a statute that says farm animals or people riding upon
[35:49] says farm animals or people riding upon farm animals. Well, you can't be a farm
[35:51] farm animals. Well, you can't be a farm animal then if people don't ride you.
[35:53] animal then if people don't ride you. But isn't that exactly what this court
[35:55] But isn't that exactly what this court just said?
[35:56] just said? Right? If chickens are still farm
[35:57] Right? If chickens are still farm animals under the under this student
[35:59] animals under the under this student statute, then maybe riding then
[36:01] statute, then maybe riding then documents can be documents even if they
[36:03] documents can be documents even if they can't have writings upon them.
[36:05] can't have writings upon them. I know actually. I I know that the
[36:09] I know actually. I I know that the drafter of this statute did not mean
[36:11] drafter of this statute did not mean document or writing upon a document to
[36:13] document or writing upon a document to signal that document means only things
[36:16] signal that document means only things writing about it cuz it was my friend
[36:18] writing about it cuz it was my friend Larry Waggoner at the University of
[36:19] Larry Waggoner at the University of Michigan who wrote it. And what he was
[36:21] Michigan who wrote it. And what he was thinking about were all these wills
[36:23] thinking about were all these wills where people scratched something out and
[36:25] where people scratched something out and they wrote something else in by hand.
[36:27] they wrote something else in by hand. That's what he thought.
[36:29] That's what he thought. And if you were willing to approach this
[36:31] And if you were willing to approach this case from a different framework instead
[36:33] case from a different framework instead of the disfiguring of public law,
[36:36] of the disfiguring of public law, instead if you came at this as this a
[36:38] instead if you came at this as this a facilitative statute, it's actually a
[36:40] facilitative statute, it's actually a uniform act that has a history, where
[36:41] uniform act that has a history, where did it come from, maybe it decided
[36:43] did it come from, maybe it decided differently, maybe not.
[36:45] differently, maybe not. It's actually very I mean a hard
[36:47] It's actually very I mean a hard question whether videos fall under the
[36:49] question whether videos fall under the statute. But that would be the
[36:50] statute. But that would be the conversation you would be having.
[36:53] conversation you would be having. I don't mean to say to be clear, I don't
[36:56] I don't mean to say to be clear, I don't mean to And let me just say one other
[36:57] mean to And let me just say one other thing. It's I don't even think the
[36:58] thing. It's I don't even think the court's right. I mean we know this,
[37:00] court's right. I mean we know this, right? That a video has like you're all
[37:01] right? That a video has like you're all on TikTok. You all know videos can have
[37:03] on TikTok. You all know videos can have writing upon them.
[37:04] writing upon them. You understand like if the guy just
[37:05] You understand like if the guy just turned on closed captioning, then we
[37:07] turned on closed captioning, then we would probate it?
[37:09] would probate it? That's really weird, right? That's we
[37:11] That's really weird, right? That's we hold today that our legislature decided
[37:14] hold today that our legislature decided that if you turn closed captioning on,
[37:16] that if you turn closed captioning on, video will is good, but if you don't,
[37:17] video will is good, but if you don't, video will is not.
[37:19] video will is not. When it when it adopted this uniform act
[37:22] When it when it adopted this uniform act that was drafted in late '80s.
[37:25] that was drafted in late '80s. Like I'm I I'm I was there in the late I
[37:27] Like I'm I I'm I was there in the late I mean I remember the late '80s.
[37:29] mean I remember the late '80s. We had camcorders like this. Do you know
[37:31] We had camcorders like this. Do you know what I mean? There was no
[37:33] what I mean? There was no closed caption. It's not how that
[37:35] closed caption. It's not how that worked. Okay. So here's another What So
[37:37] worked. Okay. So here's another What So what could we do to What could we do to
[37:40] what could we do to What could we do to What could we do to to try to defend the
[37:42] What could we do to to try to defend the decision? Here's another way to think of
[37:43] decision? Here's another way to think of the decision.
[37:44] the decision. What you might have said was you might
[37:47] What you might have said was you might say, "You know what? This statute is
[37:49] say, "You know what? This statute is from 1990. It was drafted by the Uniform
[37:51] from 1990. It was drafted by the Uniform Law Commission in the 1980s. Nobody in
[37:54] Law Commission in the 1980s. Nobody in that in this period would have thought a
[37:55] that in this period would have thought a video would have been acceptable. But
[37:57] video would have been acceptable. But today lots of people are recording all
[38:00] today lots of people are recording all the time.
[38:01] the time. They are going around making
[38:02] They are going around making documentaries,
[38:05] documentaries, right? They are recording what's
[38:07] right? They are recording what's happening and our statute seems out of
[38:10] happening and our statute seems out of date, but this is a big giant public
[38:12] date, but this is a big giant public policy question whether or not we're
[38:13] policy question whether or not we're comfortable facilitating, whether this
[38:15] comfortable facilitating, whether this is a form that we want to recognize,
[38:18] is a form that we want to recognize, whether we think the social costs of
[38:20] whether we think the social costs of enforcing these forms are worth it, and
[38:22] enforcing these forms are worth it, and that's too big for me as a judge. I'm
[38:23] that's too big for me as a judge. I'm kicking that to the legislature." That
[38:25] kicking that to the legislature." That would be a totally reasonable way to go,
[38:28] would be a totally reasonable way to go, right? That's fine. It's not what the
[38:29] right? That's fine. It's not what the court's saying.
[38:31] court's saying. The court's decision is all internal,
[38:33] The court's decision is all internal, right? It's all pretend. It's all well,
[38:35] right? It's all pretend. It's all well, the statute clearly answers the
[38:37] the statute clearly answers the question.
[38:39] question. Maybe not. Maybe it does, maybe it
[38:41] Maybe not. Maybe it does, maybe it doesn't. Maybe this is a different Maybe
[38:42] doesn't. Maybe this is a different Maybe what I'm describing is really what it's
[38:43] what I'm describing is really what it's about. Okay, so here's a joke that Dick
[38:45] about. Okay, so here's a joke that Dick Posner told me when I was clerking. So
[38:48] Posner told me when I was clerking. So it's like ever so slightly off color,
[38:50] it's like ever so slightly off color, but only ever so slightly, so it's okay.
[38:52] but only ever so slightly, so it's okay. So I Here we go, right? Okay. Guy's
[38:54] So I Here we go, right? Okay. Guy's walking down the street
[38:56] walking down the street and he comes to this storefront and
[38:58] and he comes to this storefront and there
[38:59] there flowers and art and pictures and
[39:01] flowers and art and pictures and beautiful things in the in the window.
[39:04] beautiful things in the in the window. And the thing says, you know, it's
[39:06] And the thing says, you know, it's Moshi's Mohel Services. A mohel is
[39:08] Moshi's Mohel Services. A mohel is someone who does the bris, who does the
[39:10] someone who does the bris, who does the circumcision in Jewish tradition.
[39:13] circumcision in Jewish tradition. So guy goes in the store and he says,
[39:14] So guy goes in the store and he says, "W- Why you're a mohel? Yes, you do the
[39:17] "W- Why you're a mohel? Yes, you do the brises, you do the circumcisions?"
[39:19] brises, you do the circumcisions?" That's right. "Well, why do you have
[39:20] That's right. "Well, why do you have flowers and pictures and all this stuff
[39:22] flowers and pictures and all this stuff in your in your window front?" He says,
[39:23] in your in your window front?" He says, "Well, what would you have me put
[39:24] "Well, what would you have me put there?"
[39:26] there?" Okay. What
[39:28] Okay. What And now you understand about Judge
[39:29] And now you understand about Judge Posner's
[39:30] Posner's view of opinions. So the
[39:33] view of opinions. So the What do you want the court to say?
[39:35] What do you want the court to say? Right? Like
[39:37] Right? Like this is a hard problem whether or not to
[39:39] this is a hard problem whether or not to recognize video wills, right? But I
[39:41] recognize video wills, right? But I don't think you're helping anybody by
[39:43] don't think you're helping anybody by doing this kind of this this mendacious
[39:46] doing this kind of this this mendacious statutory interpretation. That's not
[39:48] statutory interpretation. That's not even true on its own terms. It's not
[39:50] even true on its own terms. It's not even true uh on its own terms.
[39:53] even true uh on its own terms. So, okay. Well, if you do this word if
[39:55] So, okay. Well, if you do this word if you're going where I want to go, which
[39:56] you're going where I want to go, which is either you're going to say, "Look,
[39:57] is either you're going to say, "Look, this is a facilitative statute and uh I
[40:00] this is a facilitative statute and uh I could read it both ways. I don't see any
[40:02] could read it both ways. I don't see any policy reason not to let someone do
[40:04] policy reason not to let someone do this. So, I'm going to let them do this
[40:05] this. So, I'm going to let them do this till legislature stops me."
[40:07] till legislature stops me." Cuz it's a facilitative statute. I don't
[40:09] Cuz it's a facilitative statute. I don't see any Okay, that's what I would do if
[40:11] see any Okay, that's what I would do if I was the judge. You don't have to. You
[40:12] I was the judge. You don't have to. You can go the other way. You might want to
[40:14] can go the other way. You might want to say, "Well, I'm going to kick it to the
[40:15] say, "Well, I'm going to kick it to the legislature." Which brings me to the
[40:16] legislature." Which brings me to the last point, the last thing I want to
[40:18] last point, the last thing I want to say, which is "Well, that's fine."
[40:21] say, which is "Well, that's fine." Right? That's fine. We're going to kick
[40:22] Right? That's fine. We're going to kick it to the legislature.
[40:24] it to the legislature. But then without us, without you,
[40:26] But then without us, without you, without the learned profession doing law
[40:29] without the learned profession doing law reform, I think it's a hopelessly naive
[40:31] reform, I think it's a hopelessly naive understanding of the political
[40:32] understanding of the political structure.
[40:34] structure. Never in the history of the world has
[40:37] Never in the history of the world has anyone run for governor or state
[40:39] anyone run for governor or state legislature saying, "Vote for me because
[40:42] legislature saying, "Vote for me because I'm going to update the law of wills to
[40:44] I'm going to update the law of wills to account for new electronic stuff."
[40:47] account for new electronic stuff." "Put me in Congress because I'm going to
[40:49] "Put me in Congress because I'm going to fix revocation on divorce in ERISA."
[40:52] fix revocation on divorce in ERISA." "Vote for me because I've observed that
[40:54] "Vote for me because I've observed that the spousal forced share, which is part
[40:57] the spousal forced share, which is part of the default rules of the marriage
[40:58] of the default rules of the marriage form, no longer aligns with the rise of
[41:01] form, no longer aligns with the rise of non-probate."
[41:02] non-probate." Do you know who knows that? We.
[41:05] Do you know who knows that? We. The members of the learned profession
[41:07] The members of the learned profession who who help people with the forms and
[41:11] who who help people with the forms and walk them through. We see where the
[41:13] walk them through. We see where the problems are with the forms and when we
[41:15] problems are with the forms and when we can't draft around them.
[41:17] can't draft around them. Or we have people who don't know to
[41:20] Or we have people who don't know to draft around them.
[41:22] draft around them. This is not just about responsibility
[41:24] This is not just about responsibility for keeping the law updated, but it's
[41:25] for keeping the law updated, but it's also about legitimacy.
[41:28] also about legitimacy. Right? There's a horizontal equity point
[41:30] Right? There's a horizontal equity point here. And I don't just mean about wealth
[41:32] here. And I don't just mean about wealth or access to lawyers. So, here's a text
[41:36] or access to lawyers. So, here's a text message a student of mine got some years
[41:37] message a student of mine got some years ago. People you've seen this before.
[41:39] ago. People you've seen this before. Getting on some flights with dad, we
[41:41] Getting on some flights with dad, we realize we don't have a will.
[41:44] realize we don't have a will. If anything happens and it won't, mom
[41:46] If anything happens and it won't, mom lies.
[41:48] lies. Things bad things can and do happen.
[41:50] Things bad things can and do happen. Please be uh
[41:51] Please be uh and please be executor and divide all
[41:54] and please be executor and divide all things equal. Don't know if this would
[41:55] things equal. Don't know if this would count, but it's the best I can do.
[41:59] Love you and miss your face. So, there's
[42:02] Love you and miss your face. So, there's your authenticity cuz that's a mom. Only
[42:05] your authenticity cuz that's a mom. Only I miss your face.
[42:07] I miss your face. It's fine, right?
[42:09] It's fine, right? Uh
[42:10] Uh This one satisfies the statute.
[42:14] This one satisfies the statute. Because it's a writing.
[42:16] Because it's a writing. So, video, no go. This one does.
[42:21] So, video, no go. This one does. What is the principal distinction
[42:24] What is the principal distinction between those cases?
[42:26] between those cases? Right? That's just I'm going to claim
[42:28] Right? That's just I'm going to claim it's I want to argue it's an arbitrary
[42:30] it's I want to argue it's an arbitrary distinction. It's a horizontal
[42:32] distinction. It's a horizontal inequality. Like Like efforts at private
[42:36] inequality. Like Like efforts at private ordering are being treated unlike.
[42:39] ordering are being treated unlike. Right? It's an arbitrary way. And so, we
[42:42] Right? It's an arbitrary way. And so, we want to we want to fix that. So, that
[42:43] want to we want to fix that. So, that brings me to the last thing I want to
[42:45] brings me to the last thing I want to the last thing I want to talk about,
[42:47] the last thing I want to talk about, which is
[42:48] which is this rule of law. So, the you're all the
[42:51] this rule of law. So, the you're all the time you're going to hear at graduation
[42:53] time you're going to hear at graduation and these other last lecture all the
[42:54] and these other last lecture all the time you're going to hear about rule of
[42:55] time you're going to hear about rule of law is endangered and you have to
[42:57] law is endangered and you have to protect the constitutional order and on
[42:59] protect the constitutional order and on and on and on. It's fine. I mean I I
[43:01] and on and on. It's fine. I mean I I mean it's not wrong that we need to have
[43:03] mean it's not wrong that we need to have that. But that's that's just the
[43:05] that. But that's that's just the predicate
[43:07] predicate to what matters to people on a retail
[43:10] to what matters to people on a retail level. What matters to mom here is if
[43:14] level. What matters to mom here is if that plane crashes, he's the executor is
[43:16] that plane crashes, he's the executor is the executor and things are split
[43:18] the executor and things are split evenly.
[43:19] evenly. Right? That's what she's looking for.
[43:21] Right? That's what she's looking for. So, what do you do as I want to suggest
[43:23] So, what do you do as I want to suggest that the the further obligation is to
[43:29] that the the further obligation is to get these things fixed.
[43:31] get these things fixed. Right? There's another conception of
[43:33] Right? There's another conception of public interest public service and that
[43:36] public interest public service and that is the private law reform apparatus.
[43:39] is the private law reform apparatus. There's a lot of versions of it. There's
[43:40] There's a lot of versions of it. There's the American Law Institute and the
[43:42] the American Law Institute and the restatements. There's Uniform Law
[43:43] restatements. There's Uniform Law Commission and Uniform Acts. But there's
[43:46] Commission and Uniform Acts. But there's your local bar associations and the
[43:47] your local bar associations and the various committees that bring the
[43:49] various committees that bring the statutes to the legislature.
[43:51] statutes to the legislature. So, how do these little tweaks happen?
[43:53] So, how do these little tweaks happen? How does the partnership law of whatever
[43:55] How does the partnership law of whatever state, the LLC law, the divorce law, the
[43:58] state, the LLC law, the divorce law, the marriage law, the trust law, the wills
[44:00] marriage law, the trust law, the wills law, the contract law, how do these
[44:02] law, the contract law, how do these things get changed? It's ALI, it's ULC,
[44:04] things get changed? It's ALI, it's ULC, it's local bar groups going to the local
[44:07] it's local bar groups going to the local legislature saying, "We have this
[44:09] legislature saying, "We have this problem we need to fix it." Well, who
[44:10] problem we need to fix it." Well, who opposes? Nobody.
[44:12] opposes? Nobody. Why aren't we done yet? Nobody knows.
[44:14] Why aren't we done yet? Nobody knows. This is just what we need to make things
[44:15] This is just what we need to make things work. You see where I what the the the
[44:17] work. You see where I what the the the point I want to I'm trying to make here?
[44:20] point I want to I'm trying to make here? Okay. So, here's here's an example.
[44:23] Okay. So, here's here's an example. Right? Here's an example. So, people
[44:24] Right? Here's an example. So, people already know My father died a year and a
[44:26] already know My father died a year and a half ago. He lives in he lived in New
[44:27] half ago. He lives in he lived in New York.
[44:28] York. I'm the fiduciary of everything. I live
[44:30] I'm the fiduciary of everything. I live in Massachusetts. I have a brother. He
[44:32] in Massachusetts. I have a brother. He lives in Florida.
[44:34] lives in Florida. Okay, you understand? That's a conflicts
[44:36] Okay, you understand? That's a conflicts of law problem.
[44:38] of law problem. It's a conflicts of law problem. I got a
[44:39] It's a conflicts of law problem. I got a will and a trust from New York. I got an
[44:42] will and a trust from New York. I got an a fiduciary in Massachusetts. I got a
[44:44] a fiduciary in Massachusetts. I got a beneficiary in Florida. It's a conflicts
[44:47] beneficiary in Florida. It's a conflicts of law problem. Okay. It turns out that
[44:49] of law problem. Okay. It turns out that conflicts of law and trusts is is all
[44:52] conflicts of law and trusts is is all derived from the second restatement
[44:53] derived from the second restatement written by Austin Wakeman Scott, you
[44:55] written by Austin Wakeman Scott, you know, of
[44:56] know, of Harvard Law School.
[44:57] Harvard Law School. And none of it works anymore.
[45:00] And none of it works anymore. Right? None of it works anymore because
[45:01] Right? None of it works anymore because it's all based on uh testamentary trust.
[45:04] it's all based on uh testamentary trust. It's based on territorial contacts.
[45:08] It's based on territorial contacts. None of this works anymore.
[45:09] None of this works anymore. And nobody knows, right? Course continue
[45:12] And nobody knows, right? Course continue to follow the second restatement we're
[45:14] to follow the second restatement we're getting increasingly bizarre decisions.
[45:16] getting increasingly bizarre decisions. The American Law Institute and Uniform
[45:17] The American Law Institute and Uniform Law Commission are doing new projects to
[45:19] Law Commission are doing new projects to have a new restatement or new uniform
[45:20] have a new restatement or new uniform act. And they're completely rewritten to
[45:23] act. And they're completely rewritten to reflect the realities of on the ground
[45:26] reflect the realities of on the ground practice now. Right? So, I'm the chair
[45:28] practice now. Right? So, I'm the chair of the drafting committee for the
[45:29] of the drafting committee for the Uniform Act. Kim Roosevelt University of
[45:31] Uniform Act. Kim Roosevelt University of Pennsylvania is the reporter for the for
[45:33] Pennsylvania is the reporter for the for the restatement. Right? And so, we're
[45:35] the restatement. Right? And so, we're coordinating. So, why? What's the
[45:37] coordinating. So, why? What's the purpose of that? Well, because like it's
[45:39] purpose of that? Well, because like it's not so weird to see people die with
[45:42] not so weird to see people die with family in another state.
[45:44] family in another state. It's not so weird anymore. So, okay. Why
[45:47] It's not so weird anymore. So, okay. Why is that important to me? It's important
[45:49] is that important to me? It's important to me because I want to see that right.
[45:52] to me because I want to see that right. Want to see that right cuz that's a
[45:53] Want to see that right cuz that's a thing people are trying to do. And so,
[45:55] thing people are trying to do. And so, the claim, the thing I'm trying to
[45:57] the claim, the thing I'm trying to suggest I'm mindful that I got to keep
[45:59] suggest I'm mindful that I got to keep this
[46:00] this tight cuz people got to get to their
[46:01] tight cuz people got to get to their classes and if we can open the door to
[46:02] classes and if we can open the door to questions.
[46:03] questions. The claim I'm trying to make is that
[46:05] The claim I'm trying to make is that this matters to people on a retail
[46:07] this matters to people on a retail level. I'm not denying the preservation
[46:10] level. I'm not denying the preservation of the constitutional order and checks
[46:12] of the constitutional order and checks and balances and due process. That's
[46:15] and balances and due process. That's important, obviously. It's predicate.
[46:17] important, obviously. It's predicate. I'm suggesting that on a retail level
[46:21] I'm suggesting that on a retail level a as a equally if not more corrosive
[46:26] a as a equally if not more corrosive to a democratic republic rule of law is
[46:30] to a democratic republic rule of law is failure of private law to achieve the
[46:33] failure of private law to achieve the private ordering that people are
[46:35] private ordering that people are seeking. When they when someone thinks
[46:38] seeking. When they when someone thinks they've got a deal and they don't, they
[46:40] they've got a deal and they don't, they think they've got a business arrangement
[46:41] think they've got a business arrangement and they don't, they think there's
[46:43] and they don't, they think there's private sharing and they don't, they
[46:44] private sharing and they don't, they think they have a trust and they don't,
[46:46] think they have a trust and they don't, they think they've made a will so
[46:47] they think they've made a will so Christina Fontnew doesn't get one penny
[46:50] Christina Fontnew doesn't get one penny and they don't.
[46:51] and they don't. When that happens, it is corrosive to
[46:55] When that happens, it is corrosive to rule of law as much so as checks and
[46:58] rule of law as much so as checks and balances whatever else cuz that's not
[47:00] balances whatever else cuz that's not what people are watching. People are
[47:02] what people are watching. People are trying to make payroll, they're trying
[47:03] trying to make payroll, they're trying to make they're trying to buy groceries,
[47:05] to make they're trying to buy groceries, they're trying to make rent. And when
[47:07] they're trying to make rent. And when private law fails them, the law has
[47:10] private law fails them, the law has failed them.
[47:11] failed them. So, your role is a as a lawyer to these
[47:14] So, your role is a as a lawyer to these clients is to draft it right. Understand
[47:17] clients is to draft it right. Understand what they're doing and make the forms
[47:19] what they're doing and make the forms right. And as the lawyer in the
[47:21] right. And as the lawyer in the litigation, show the court the way. And
[47:23] litigation, show the court the way. And as the judge, find the way. And as the
[47:25] as the judge, find the way. And as the legislator to fix it. And as the lawyer
[47:28] legislator to fix it. And as the lawyer to lobby. And if you do this and you
[47:31] to lobby. And if you do this and you choose as a path private law and that
[47:33] choose as a path private law and that kind of practice, understand that you
[47:36] kind of practice, understand that you are as if not more important to the
[47:39] are as if not more important to the preservation of rule of law as anybody
[47:42] preservation of rule of law as anybody else.
[47:44] else. I was going to say something insulting
[47:45] I was going to say something insulting of a colleague. We're not going to do
[47:46] of a colleague. We're not going to do that. It's being recorded. As anything
[47:49] that. It's being recorded. As anything else
[47:50] else as anything I'm not going to do it.
[47:52] as anything I'm not going to do it. Anything so hard. As anything else
[47:56] Anything so hard. As anything else as any It is absolutely is just as
[47:59] as any It is absolutely is just as essential to preservation of rule of
[48:01] essential to preservation of rule of law. Okay, so I know people got 1:30. I
[48:03] law. Okay, so I know people got 1:30. I can stay and talk if people want to ask
[48:04] can stay and talk if people want to ask questions or whatever, but I appreciate
[48:06] questions or whatever, but I appreciate you giving me this last chance and I
[48:07] you giving me this last chance and I thank you for your patience and the
[48:09] thank you for your patience and the indulgence.
[48:10] indulgence. >> [applause]
[48:29] >> If anybody wants to ask Professor Oh,
[48:32] >> If anybody wants to ask Professor Oh, raise your hand. I'll bring the mic.
[48:33] raise your hand. I'll bring the mic. Perfect.
[48:38] Oh, in this in this conversation what
[48:39] Oh, in this in this conversation what has changed in 10 years ago?
[48:41] has changed in 10 years ago? Um so, relative to the So, so I I I
[48:44] Um so, relative to the So, so I I I think there are
[48:45] think there are two or three things that
[48:47] two or three things that that are different. So, one, when I uh
[48:50] that are different. So, one, when I uh 10 years ago, I told the story of how I
[48:52] 10 years ago, I told the story of how I got into trusts and estates.
[48:54] got into trusts and estates. And including like drafting my mother's
[48:56] And including like drafting my mother's will, which I'd never to talked about
[48:58] will, which I'd never to talked about that publicly before. My mother died
[49:00] that publicly before. My mother died when I was 17 and so the reason I got
[49:02] when I was 17 and so the reason I got into trusts and estates. So, that story
[49:03] into trusts and estates. So, that story is out there. I'm happy to repeat it
[49:05] is out there. I'm happy to repeat it again if people want to hear it, but
[49:06] again if people want to hear it, but like that was one a piece.
[49:08] like that was one a piece. The other was um I uh
[49:11] The other was um I uh um
[49:12] um I did not feel I did not have the sense
[49:14] I did not feel I did not have the sense 10 years ago of um
[49:18] 10 years ago of um uh
[49:20] uh of the eclipsing of the importance of
[49:22] of the eclipsing of the importance of private law in quite the same way I'm
[49:24] private law in quite the same way I'm feeling it now.
[49:26] feeling it now. Right? So, as a turn And I also don't
[49:28] Right? So, as a turn And I also don't think that I understood
[49:31] think that I understood uh I didn't have this feel for um
[49:34] uh I didn't have this feel for um the role of the lawyer in these three
[49:36] the role of the lawyer in these three pieces. I mean, I talked about it, but I
[49:37] pieces. I mean, I talked about it, but I didn't have it organized in that way.
[49:38] didn't have it organized in that way. So, the big difference is one is this
[49:40] So, the big difference is one is this this eclipsing and the other is I didn't
[49:42] this eclipsing and the other is I didn't like it's very it's customary in these
[49:43] like it's very it's customary in these talks to tell your own story. I didn't
[49:45] talks to tell your own story. I didn't do that here. I'm happy to talk now if
[49:47] do that here. I'm happy to talk now if you want to hear it, do it again, but
[49:48] you want to hear it, do it again, but that those are the that's the quick
[49:50] that those are the that's the quick answer.
[49:55] Does anyone other anyone else have any
[49:57] Does anyone other anyone else have any other questions for Professor Sitkoff?
[49:59] other questions for Professor Sitkoff? You're running class.
[50:05] Great. Thank you so much for that. We
[50:06] Great. Thank you so much for that. We truly appreciate it.
Full Transcript (Bilingual)
https://www.youtube.com/watch?v=vtWb0mFUojI
Translation: zh-CN
[00:00] Well, good afternoon everyone.
大家好，下午好。
[00:02] It is so amazing to see so many familiar faces, especially coming out of such an amazing barristers this past Saturday.
很高兴看到这么多熟悉的面孔，尤其是在这个星期六的精彩辩论赛之后。
[00:09] Thank you all so much for being here.
非常感谢大家的光临。
[00:11] My name is Gabby Mestre.
我叫 Gabby Mestre。
[00:13] I'm one of your class of 2026 class marshals and it is a distinct honor to kick off our last lecture series today and introduce the brilliant Professor Robert Sitkoff.
我是你们2026届的班级司仪之一，非常荣幸能在这里开启我们本学期的最后一场讲座，并介绍杰出的Robert Sitkoff教授。
[00:23] Professor Robert Sitkoff is the Austin Wakeman Scott Professor of Law and the John L. Gray Professor of Law.
Robert Sitkoff教授是奥斯汀·韦克曼·斯科特法学教授和约翰·L·格雷法学教授。
[00:30] He's an expert in many many fields.
他是许多许多领域的专家。
[00:32] Trust me, if I told you all of his accomplishments, I would be the one giving the lecture today and not him.
相信我，如果我告诉你们他所有的成就，那么今天做讲座的就是我而不是他了。
[00:37] Um, but he specializes in wills, trusts, estates, and fiduciary administration.
嗯，但他专攻遗嘱、信托、遗产和信托管理。
[00:43] Professor Sitkoff clerked for then Chief Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit.
Sitkoff教授曾在美国第七巡回上诉法院担任首席法官Richard Posner的书记员。
[00:49] He taught at both NYU and Northwestern before joining the Harvard Law School faculty in 2007, where he became the youngest professor to receive a chair in the history of the school.
在2007年加入哈佛法学院之前，他曾在纽约大学和西北大学任教，并成为该校历史上最年轻的获得教席的教授。
[00:58] Professor Sitkoff has been published in
Sitkoff教授已发表在
[01:01] Professor Sitkoff has been published in leading scholarly journals such as the leading scholarly journals such as the Yale Law Journal, the Stanford Law Review, the Columbia Law Review, the Journal of Law and Economics, and many many others.
西特科夫教授曾在《耶鲁法学杂志》、《斯坦福法律评论》、《哥伦比亚法律评论》、《法律与经济学杂志》等领先的学术期刊上发表过文章，还有许多许多其他期刊。
[01:10] Professor Sitkoff is a co-author of Wills, Trusts, and Estates, the most popular American coursebook on Trusts and Estates, and he is a co-editor of the Oxford Handbook of Fiduciary Law.
西特科夫教授是《遗嘱、信托和遗产》的合著者，这是美国最受欢迎的关于信托和遗产的教材，他还是《牛津信托法手册》的联合编辑。
[01:19] Professor Sitkoff's research has been featured in the New York Times, Wall Street Journal, and Financial Times, amongst other media.
西特科夫教授的研究曾刊登在《纽约时报》、《华尔街日报》和《金融时报》等媒体上。
[01:26] He's an active participant in Trusts and Estates law reform.
他是信托和遗产法改革的积极参与者。
[01:29] He serves on the Uniform Law Commission as a commissioner for Massachusetts.
他作为马萨诸塞州的委员，在美国统一法委员会任职。
[01:34] He previously served as a member of several other drafting committees for Uniform Trusts and Estates Acts, including as chair of the drafting committee for the Uniform Directed Trust Act.
他此前曾担任多个统一信托和遗产法案起草委员会的成员，包括担任统一指示信托法起草委员会的主席。
[01:41] And on a personal note, I took Professor Sitkoff's Trusts and Estates class last year and found it to be one of the best classes I've taken here at the law school.
另外，就个人而言，我去年上了西特科夫教授的信托和遗产课，发现这是我在法学院上过的最好的课程之一。
[01:49] So, now, without further ado, I know none of you are here to hear me speak.
那么，现在，废话不多说，我知道你们都不是来听我说话的。
[01:55] Please help me in welcoming Professor Robert Sitkoff.
请大家和我一起欢迎罗伯特·西特科夫教授。
[01:58] Thank you.
谢谢。
[02:04] Uh, well, thank you.
嗯，好吧，谢谢你。
[02:06] That's a very generous and kind um uh, introduction.
这是一个非常慷慨和善良的介绍。
[02:13] So, let me say something about uh, what what you just said and then I'll get into some of the things I wanted to say.
所以，让我谈谈你刚才说的话，然后我再说一些我想说的事情。
[02:18] So, um, from time to time people make that comment about uh, the youngest chair.
所以，嗯，时不时会有人评论说，关于最年轻的教席。
[02:22] So, I'm going to tell you this the true story what actually happened.
所以，我要告诉你这个真实的故事，实际发生了什么。
[02:25] So, I was a visitor here in uh, spring of um uh, spring of 2007.
所以，我是2007年春天在这里的访客。
[02:31] Elena Kagan was the dean at the time.
当时埃琳娜·卡根是院长。
[02:33] Uh, it was a good time to visit Harvard.
嗯，这是访问哈佛的好时机。
[02:35] It was a period of promiscuous hiring, so it was a good time to visit.
那是一个招聘机会很多的时候，所以这是个好时机来访。
[02:39] And uh, anyway, the faculty had a meeting and voted my offer.
然后，总之，教职员工开会并投票决定了我的聘用。
[02:42] Elena came to the office and she we talked for a while and then she got up to leave.
埃琳娜来到办公室，我们谈了一会儿，然后她起身要走。
[02:47] You know by now Colombo? Like she turned at the door, she turned around, "Oh, one more thing.
你现在知道像《神探可伦坡》那样吗？她走到门口，转过身，“哦，还有一件事。
[02:50] If you If you say yes, you'll be the John L. Gray uh, Professor of Law."
如果你说“是”，你将成为约翰·L·格雷法学教授。”
[02:54] I said, "Oh my goodness, that's that's amazing.
我说，“我的天哪，这太棒了。
[02:58] That's really early in career. I'm 31."
这在职业生涯早期来说太早了。我才31岁。”
[02:59] And I said, "That's pretty early to have a uh, chair. Oh my goodness."
我说，“拥有一个教席，这确实太早了。我的天哪。”
[03:04] And she said, "Well, the the
她说，“嗯，那个那个
[03:06] goodness.
太好了。
[03:08] And she said, "Well, the the donor restricted it to a specialist in Trusts and Estates, what else am I supposed to do with it?"
她说：“好吧，捐赠者将其限制在信托和遗嘱认证专家那里，我还能做什么呢？”
[03:10] So, that's actually what what what happened.
所以，这实际上就是发生的事情。
[03:12] Okay, anyway, um, so I I thank you for inviting me to do this.
好的，总之，我感谢您邀请我做这件事。
[03:14] It's it's a quite an honor.
这是莫大的荣幸。
[03:17] Um, one of the reasons I moved here now about 20 years ago was for you, for the students.
嗯，我大约在20年前搬到这里的原因之一就是为了你们，为了学生们。
[03:19] Your curiosity and energy and engagement, uh, hunger to grow and learn has been exciting and really the best part of the job.
你们的好奇心、活力、参与度，以及渴望成长和学习的饥渴感，一直令人兴奋，也是这份工作中最美好的部分。
[03:22] It's made me a better teacher, a better scholar, better lawyer.
这让我成为了一名更好的老师、更好的学者、更好的律师。
[03:25] You have over the years, including the last 2 years, held me accountable, forced me to think harder and deeper about uh, issues.
多年来，包括最近的两年，你们让我承担责任，迫使我更深入地思考相关问题。
[03:29] A little bit later in this talk, I'm going to quote a line that one of you wrote in your exam and I've lifted and put in the casebook as it's a good it's a good line.
在这次讲座稍后的部分，我将引用你们中的一位在考试中写下的一句话，我已经将其摘录并放入案例书中，因为它确实是一句好话。
[03:31] But also, you have been um, unfailingly generous.
但同样，你们一直非常慷慨。
[03:33] As some of you know, the past year or two has been a little bit rough for me.
正如你们中的一些人所知，过去一两年对我来说有点艰难。
[03:35] My father died, I got a
我的父亲去世了，我得到了一个
[04:07] For me, my father died, I got a concussion, each of my three children had significant health issues, one needed a surgery.
对我来说，我父亲去世了，我脑震荡了，我的三个孩子都有严重的健康问题，有一个需要手术。
[04:13] It's been a bumpy couple of years and throughout that whole period, you've all been people taking the classes in particular have been uncommonly generous and accommodating my bumpiness and not, you know, there was the one class I had to leave partway through to go lie down because of my head and whatever.
这几年很艰难，在整个时期里，你们这些上课的人尤其慷慨大方，体谅我的跌宕起伏，你知道，有一节课我不得不中途离开去躺下，因为我的头不舒服，等等。
[04:28] And so thank you.
所以，谢谢你们。
[04:31] So, last lecture, I mean, I hope it's not my last lecture.
所以，上次课，我的意思是，我希望不是我的最后一课。
[04:35] I mean, it could be, but that's not the, you know, hope for the best, but plan for the worst.
我的意思是，可能是，但那不是，你知道，抱最好的希望，但做最坏的打算。
[04:40] That's my That's our field's motto.
这是我的，这是我们领域的座右铭。
[04:42] I don't think it's going to be the last.
我不认为会是最后一课。
[04:44] People are laughing.
人们在笑。
[04:45] I mean that for real.
我是认真的。
[04:45] Hope for the best, but plan for the worst.
抱最好的希望，但做最坏的打算。
[04:47] So, I I I don't think it's actually going to be the last lecture, but I do suspect that for many of you, this will be my last chance to indoctrinate.
所以，我，我，我actually不认为会是最后一课，但我确实怀疑对你们中的许多人来说，这将是我灌输思想的最后机会。
[04:56] Right?
对吧？
[04:56] The last chance to tell you some things that I think are important that I think will be are important to me for you to understand as you embark on being a lawyer, as you embark on the journey of the rest of your life.
最后一次机会告诉你们一些我认为重要的事情，我认为这些事情对我来说很重要，让你们在开始成为一名律师时，在你们人生的其余旅程中，能够理解。
[05:06] And I I hope
我，我希望
[05:09] of the rest of your life.
在你余生之中。
[05:09] And I I hope it's not the last chance.
我希望这不是最后的机会。
[05:10] I hope you it's not the last chance.
我希望这不是最后的机会。
[05:10] I hope you will stay in in touch and reach out and email.
我希望你保持联系，并伸出援手，并发送电子邮件。
[05:13] will stay in in touch and reach out and email.
保持联系，并伸出援手，并发送电子邮件。
[05:13] Email's easy, right?
发邮件很容易，对吧？
[05:15] email. Email's easy, right?
发邮件。发邮件很容易，对吧？
[05:15] I'm in Hauser or whatever, but I understand for many this will be.
我在豪瑟或者别的什么地方，但我明白，对很多人来说，这将是。
[05:16] I'm in Hauser or whatever, but I understand for many this will be.
我在豪瑟或者别的什么地方，但我明白，对很多人来说，这将是。
[05:18] understand for many this will be.
对很多人来说，这将是。
[05:18] So, I I puzzled for a little while about what what could I tell you?
所以，我我琢磨了一会儿，我能告诉你们什么呢？
[05:20] So, I I puzzled for a little while about what what could I tell you?
所以，我我琢磨了一会儿，我能告诉你们什么呢？
[05:20] You know, what what would I what would what would I want to do in this last lecture?
你知道，我我想要在这最后一堂课上做什么？
[05:22] what what could I tell you?
我能告诉你们什么呢？
[05:22] You know, what what would I what would what would I want to do in this last lecture?
你知道，我我想要在这最后一堂课上做什么？
[05:23] what what would I what would what would I want to do in this last lecture?
我我想要在这最后一堂课上做什么？
[05:25] I want to do in this last lecture?
我想要在这最后一堂课上做什么？
[05:25] So, the problem is I have a pretty narrow range of knowledge.
所以，问题是我拥有的知识范围相当狭窄。
[05:27] So, the problem is I have a pretty narrow range of knowledge.
所以，问题是我拥有的知识范围相当狭窄。
[05:29] narrow range of knowledge.
知识范围狭窄。
[05:30] I I
我我
[05:31] I I I know a lot about Trusts and Estates and fiduciary law.
我我我知道很多关于信托和遗嘱以及信托法的知识。
[05:33] I I know a lot about Trusts and Estates and fiduciary law.
我我我知道很多关于信托和遗嘱以及信托法的知识。
[05:33] I also know about classic Star Trek, coaching Little League, and the Yankees, making pancakes.
我也知道经典的星际迷航，指导少年棒球队，以及扬基队，做煎饼。
[05:35] and fiduciary law.
以及信托法。
[05:35] I also know about classic Star Trek, coaching Little League, and the Yankees, making pancakes.
我也知道经典的星际迷航，指导少年棒球队，以及扬基队，做煎饼。
[05:37] classic Star Trek, coaching Little League, and the Yankees, making pancakes.
经典的星际迷航，指导少年棒球队，以及扬基队，做煎饼。
[05:39] League, and the Yankees, making pancakes.
少年棒球队，以及扬基队，做煎饼。
[05:39] None of this seemed like really appropriate.
这一切似乎都不太合适。
[05:41] making pancakes.
做煎饼。
[05:41] None of this seemed like really appropriate.
这一切似乎都不太合适。
[05:41] So, I went back and I gave one of these some years ago.
所以，我回过头来，几年前我讲过其中一个。
[05:45] like really appropriate.
不太合适。
[05:45] So, I went back and I gave one of these some years ago.
所以，我回过头来，几年前我讲过其中一个。
[05:46] and I gave one of these some years ago.
我讲过其中一个，几年前。
[05:46] Was it 10 years ago?
是10年前吗？
[05:48] Was it 10 years ago?
是10年前吗？
[05:48] I looked at that video and I I thought, "What have I learned since then?"
我看了那个视频，我想，“我从那以后学到了什么？”
[05:50] video and I I thought, "What have I learned since then?"
视频，我想，“我从那以后学到了什么？”
[05:50] And first thing came to mind was how to do colonoscopy preps.
首先想到的是如何做结肠镜检查的准备。
[05:52] learned since then?"
从那以后学到了什么？”
[05:52] And first thing came to mind was how to do colonoscopy preps.
首先想到的是如何做结肠镜检查的准备。
[05:54] came to mind was how to do colonoscopy preps.
想到的是如何做结肠镜检查的准备。
[05:56] preps.
准备。
[05:56] But that seemed like not also what we should do uh
但这似乎也不是我们应该做的呃
[05:58] But that seemed like not also what we should do uh
但这似乎也不是我们应该做的呃
[06:00] should do uh We could, if we we maybe the Q&A, we can uh
应该做的呃我们可以，如果我们，也许在问答环节，我们可以呃
[06:02] We could, if we we maybe the Q&A, we can uh
我们可以，如果我们，也许在问答环节，我们可以呃
[06:03] uh So, my family said, "Don't talk about colonoscopy."
呃所以，我的家人说，“不要谈论结肠镜检查。”
[06:05] So, my family said, "Don't talk about colonoscopy."
所以，我的家人说，“不要谈论结肠镜检查。”
[06:05] So, I win.
所以，我赢了。
[06:07] colonoscopy."
结肠镜检查。”
[06:07] So, I win.
所以，我赢了。
[06:07] There I did it.
我做到了。
[06:08] Uh, so let me tell you what I did.
呃，让我告诉你我做了什么。
[06:09] so let me tell you what I did.
让我告诉你我做了什么。
[06:09] I I dug up the outline, dug up my notes from
我我挖出了大纲，挖出了我的笔记，来自
[06:11] Up the outline, dug up my notes from that.
梳理了纲要，挖出了我当时的笔记。
[06:13] And what I was struck as I looked at those notes from all those years ago.
当我翻看那些多年前的笔记时，我感到震惊。
[06:15] When I did one of these talks, what I was really struck by was the very different perspective, my very different understanding of what I told that class those years ago.
当我做这些演讲时，我真正感到震惊的是，我对我多年前告诉那个班级的内容有着截然不同的看法和理解。
[06:24] Right?
对吗？
[06:27] And so, what I want to do today, and that reflects 10 years of growth, right?
所以，我今天想做的是，这反映了十年的成长，对吧？
[06:29] 10 years of learning, 10 more years of experience than you, 10 more years of just life.
十年的学习，比你多十年的经验，多十年的生活。
[06:34] And so, what I want to do today is I'm going to talk about a variety several of the same things I talked about then, but from a refreshed lens with what is the current my current state of development.
所以，我今天想做的是，我将谈论一些与当时我谈论过的相同的事情，但从一个全新的视角来看待我目前的发展状态。
[06:47] And in doing that, what I'm trying to model for you is the never-ending growth, right?
在这样做的时候，我试图为你们树立的是永无止境的成长，对吧？
[06:51] The idea that you will continue to learn and develop as a lawyer, as a person, as a child, a sibling, a partner, whatever.
你将继续学习和成长，作为一名律师，作为一个人，作为孩子，兄弟姐妹，伴侣，等等。
[07:00] The idea that you need to keep learning.
你需要不断学习。
[07:02] You need to keep growing.
你需要不断成长。
[07:03] You want to keep reevaluating what you think you know and look at these things afresh.
你想不断重新评估你认为自己知道的东西，并以全新的眼光看待这些事情。
[07:08] So, here's what we're going to do.
所以，我们要做的是这个。
[07:09] I'm going to tell you I'm going to try to tell you
我将告诉你，我将试着告诉你
[07:11] To tell you I'm going to try to tell you some things that I wish I knew.
我想告诉你一些我希望我当时知道的事情。
[07:14] I wish some things that I wish I knew.
我希望我当时知道一些事情。
[07:14] I wish that I knew when I was you.
我希望在我还是你的时候我就知道了。
[07:16] Right?
对吧？
[07:16] When that I knew when I was you.
当我还是你的时候我就知道了。
[07:16] Right?
对吧？
[07:18] When I was getting ready to graduate and go out.
当我准备毕业并走出去的时候。
[07:19] So, I want to tell you four things that I didn't really understand then and
所以，我想告诉你四件我当时并不真正理解的事情，而且
[07:22] that I didn't really understand then and I think in truth, I didn't even really
我当时并不真正理解，而且我认为事实上，我甚至没有真正
[07:24] I think in truth, I didn't even really understand 10 years ago.
我认为事实上，我甚至在10年前都没有真正理解。
[07:26] I mean, I thought I did and I talked about them in
我的意思是，我认为我理解了，并且我在那个演讲中谈到了它们，但
[07:27] thought I did and I talked about them in that talk, but I understand them
我认为我理解了，并且我在那个演讲中谈到了它们，但现在我理解它们
[07:29] that talk, but I understand them differently now and I'm sure in 10
那个演讲，但现在我理解它们不同了，而且我敢肯定在10年后，
[07:31] differently now and I'm sure in 10 years, I'll understand them even
现在理解不同了，而且我敢肯定在10年后，我将对它们有更
[07:32] years, I'll understand them even differently then.
年，我将对它们有更不同的理解。
[07:34] But I want to talk to you about what I think I understand
但我想和你谈谈我所认为的我现在理解的
[07:37] you about what I think I understand now.
你关于我所认为的我现在理解的。
[07:38] now.
现在。
[07:40] You don't have to accept my vision.
你不必接受我的观点。
[07:40] You don't have to accept these things that
你不必接受我将要告诉你的这些事情。
[07:41] I'm going to be telling you.
我将要告诉你的。
[07:43] I want to offer this as a kind of as a idea for
我想把它作为一种想法提供给你，
[07:46] offer this as a kind of as a idea for you to take in and then absorb and do
提供给你，让你吸收并做
[07:49] you to take in and then absorb and do with what you wish.
你希望做的事情。对吧？
[07:50] Right?
对吧？
[07:50] Take this into the full body of your development
将它融入你发展的全部过程，
[07:53] into the full body of your development as a person, as a lawyer, whatever else.
作为一个人，作为一名律师，或者其他任何身份。
[07:56] as a person, as a lawyer, whatever else.
作为一个人，作为一名律师，或者其他任何身份。
[07:58] But mostly, what I want to do is get you thinking.
但最重要的是，我想让你开始思考。
[08:00] thinking.
思考。
[08:00] I want you to look at this as a broad picture.
我想让你把它看作一个广阔的图景。
[08:02] a broad picture.
一个广阔的图景。
[08:02] You're about to enter a learned profession.
你即将进入一个需要学识的职业。
[08:05] learned profession.
需要学识的职业。
[08:05] And that term learned for a learned profession has
而“需要学识”这个词对于一个需要学识的职业来说有
[08:06] learned for a learned profession has real meaning.
真正的意义。
[08:08] real meaning.
真正的意义。
[08:08] Right?
对吧？
[08:08] It's not just that we're self-regulating and the like.
不仅仅是我们自我监管之类的。
[08:10] we're self-regulating and the like.
我们自我监管之类的。
[08:10] It's that it's a profession that requires
而是它是一个需要
[08:13] that it's a profession that requires study.
这是一门需要学习的专业。
[08:13] It requires learning.
它需要学习。
[08:16] People are coming to you for your learning and for what you can think, what you can do for them.
人们来找你是为了你的学识，为了你的思想，为了你能为他们做什么。
[08:22] And so, I want to push you a little bit.
所以，我想稍微激励一下你们。
[08:24] So, this is going to be a last lecture about the law and specifically law that you're going to be doing.
所以，这将是关于法律的最后一讲，特别是你们将要从事的法律。
[08:30] And even more specifically, I'm going to tell you what I think is my what I'm going to tell you what is my understanding of the law that many of you are going to be doing and why it matters and what I think is your responsibility to your clients, to the practice of law, and to society as a member of this learned profession.
更具体地说，我将告诉你们我认为我的，我将告诉你们我对你们许多人将要从事的法律的理解，以及它为什么重要，以及我认为你们对客户、对律师职业以及作为这个受过教育的专业人士的社会所负有的责任。
[08:53] And I think I narrow this into four takeaways, four buckets.
我认为我将这归纳为四个要点，四个方面。
[08:55] Let me tell you what these four buckets what these four buckets are going to be.
让我告诉你们这四个方面，这四个方面将是什么。
[09:00] So, one is not a shock for people who took the class.
所以，对于上过这门课的人来说，有一点并不令人惊讶。
[09:01] I want to say a little bit about the relationship between public and private law.
我想稍微谈谈公法和私法之间的关系。
[09:05] I want to say something about the relationship between public and private law.
我想谈谈公法和私法之间的关系。
[09:08] This is foundational.
这是基础性的。
[09:10] This is definitional.
这是定义性的。
[09:11] This is something that we're going to need to all have this conversation, which is not really a
这是我们需要共同进行的一次对话，这实际上并不是一个
[09:14] conversation, which is not really a conversation, but it's the polite way to conversation, but it's the polite way to say it.
对话，严格来说并不是对话，但这是礼貌的说法。对话，但这是礼貌的说法。
[09:19] So, to have this conversation, we need to have we need to have a common vocabulary.
所以，要进行这次对话，我们需要拥有一个共同的词汇。
[09:22] All right. The second thing is I want to say something about private law and private ordering, which is the law that most of you are going to be doing.
好的。第二件事是，我想谈谈私法和私法秩序，这是你们大多数人将要从事的法律。
[09:29] And I want to tell you what I think it is that you'll be doing and why it matters.
我想告诉你们我认为你们将要做什么以及为什么它很重要。
[09:35] I want to say why it matters cuz I I think that's where rule of law really has power and I think that's where it affects people on the ground.
我想说为什么它很重要，因为我认为那才是法治真正有力量的地方，我认为那才是它影响普通民众的地方。
[09:43] So, the claim I'm going to be making is this is retail law.
所以，我将要提出的主张是，这是零售法。
[09:46] That private ordering, private law is retail law.
私法秩序，私法是零售法。
[09:48] This is what not just what most of you are going to be doing, but this is what many of your clients are coming to coming to you for in their day-to-day life.
这不仅是你们大多数人将要从事的，而且是你们的许多客户在日常生活中向你们寻求的。
[10:00] And I think it is unfairly denigrated in elite law schools.
我认为它在精英法学院被不公平地贬低了。
[10:03] I think that we don't give enough attention and time to the significance of private ordering.
我认为我们没有给予私法秩序的重要性足够多的关注和时间。
[10:10] We do not encourage you to go practice in this area.
我们不鼓励你们去从事这个领域的实践。
[10:13] We don't congratulate you for the
我们不祝贺你们因为
[10:15] area.
领域。
[10:17] We don't congratulate you for the contributions you make in doing it, and contributions you make in doing it, and yet we send most of you out to do that.
我们不祝贺你为之付出的贡献，也不祝贺你为之付出的贡献，但我们却派你们大多数人去做这件事。
[10:19] And I think you should feel really good about it.
我认为你应该对此感到非常高兴。
[10:21] I think it's absolutely essential.
我认为这绝对是至关重要的。
[10:24] And I want to tell you why.
我想告诉你为什么。
[10:27] Okay, the third bucket which follows from that is your role as lawyer.
好的，由此产生的第三个类别是您作为律师的角色。
[10:31] And I mean this on the one hand as a fiduciary.
一方面，我指的是作为受托人。
[10:33] So, as a member of this learned profession to whom your client turns for help.
因此，作为这个受人尊敬的行业的一员，您的客户会向您寻求帮助。
[10:37] But also in terms of your responsibility for what the law is going forward.
但也要考虑到您对未来法律的责任。
[10:42] It's a long tradition in these talks for folks up here to be telling you about your responsibility as a lawyer, but it's usually in a public law frame and at the end of the Republic as we know it unless you do something or another.
在这些谈话中，这里的人们告诉您作为律师的责任，这是一种悠久的传统，但通常是在公共法律框架下，并且在我们所知的共和国的末期，除非您做些什么。
[10:56] So, I I I want to make a subtly different claim.
所以，我想提出一个微妙不同的主张。
[10:58] I want to say that your role in um uh policing the reform of private law is absolutely essential to the development law and even more so now for a variety of developments in the nature of private law, increased codification, right?
我想说，您在监督私法改革方面的作用对于法律的发展绝对至关重要，而且现在对于私法的性质、法典化的增加等各种发展来说更是如此，对吧？
[11:13] In
在
[11:16] law, increased codification, right?
法律，增加了法典化，对吧？
[11:19] In the disfiguring of statutory the disfiguring of statutory interpretation because of public law
在对法定解释的歪曲，由于公共法律
[11:21] interpretation because of public law battles and so on.
解释，由于公共法律的斗争等等。
[11:23] So, I want to say a little bit about the role you're going
所以，我想稍微谈谈你们将要扮演的角色
[11:24] to play and what that matters and that's
以及那有什么重要性，那就是
[11:26] the
这个
[11:27] um
嗯
[11:28] um public service aspect of being a member
嗯，作为一名成员的公共服务方面
[11:30] of a learned profession.
受过教育的专业人士。
[11:32] There is a public service aspect in the private law
在私法领域也有公共服务方面
[11:35] domain also and that's the thing I want
也有，这就是我想
[11:36] to talk about.
谈论的事情。
[11:38] All right.
好的。
[11:38] So, then there's number four.
那么，有第四点。
[11:40] So, number four is going to be to tie these three together.
所以，第四点将是把这三点联系起来。
[11:42] I want to offer you a competing vision
我想向你们提供一个竞争性的愿景
[11:45] of rule of law.
关于法治。
[11:48] This is weirdly maybe a subversive
这可能是一种奇怪的颠覆性的
[11:50] notion of rule of law.
法治观念。
[11:54] I want to suggest rule of law as private ordering as
我想把法治看作是私人秩序，看作是
[11:57] private law.
私法。
[11:58] Right?
对吧？
[12:00] So, instead of talking about rule of law as in the organization of civil
所以，与其谈论法治，就像在组织公民社会一样，
[12:02] society, people and the state, public
人民和国家，公共法律。
[12:04] law.
法律。
[12:06] I want to talk about rule of law
我想谈谈法治
[12:08] from the standpoint of we order your personal and professional affairs with
从我们通过法律来规范你们的个人和职业事务，并与
[12:11] other people and we enforce it, we
其他人打交道，我们执行它，我们
[12:13] resolve it, we make it work through law
解决它，我们通过法律来使其运作
[12:16] resolve it, we make it work through law rather than through baseball bats.
解决它，我们通过法律来解决，而不是通过棒球棒。
[12:19] rather than through baseball bats. Right?
而不是通过棒球棒。对吗？
[12:20] I'm going to talk about that kind of retail rule of retail rule of law.
我将谈论那种零售规则的法治。
[12:24] of retail rule of retail rule of law. And so, this is private law these forms
的法治。所以，这是私人法律，这些形式
[12:27] as rule of law and then the role of you, of lawyers, in making this all work.
作为法治，以及你们，律师，在使这一切发挥作用中的作用。
[12:34] Okay, I say this is So, let's let's go through these first. So, first, what do I mean when I say public law?
好的，我说这是所以，让我们先来回顾一下这些。首先，当我提到公法时，我的意思是什么？
[12:40] We say public law and private law. So, public law is constitutional law, administrative law, criminal law, and the like.
我们说公法和私法。所以，公法是宪法、行政法、刑法等等。
[12:45] This is the law that um organizes the state and your relationship to it.
这是组织国家以及你与国家关系的法律。
[12:53] This is the organization of the state, right?
这是国家的组织，对吧？
[12:55] The coercive power of the state and how this how this is going to operate.
国家的强制力以及它将如何运作。
[13:00] So, this is the front page news, right?
所以，这是头版新闻，对吧？
[13:02] This is where everyone's waiting everyone waits for Supreme Court decisions and writes about that every year.
这是每个人都在等待，每年都在等待最高法院的判决并撰写相关文章的地方。
[13:07] This is what gets these headlines. This is this notion that that um uh
这就是这些头条新闻的由来。就是这个概念，那个，嗯，呃
[13:12] this is what's going to this is why we have a leg reg class. This is what if you pick up the Harvard Law Review is
这就是为什么我们有法律监管课程。如果你拿起《哈佛法律评论》来看，这就是
[13:17] You pick up the Harvard Law Review, it's going to predominate its pages.
你拿起《哈佛法律评论》，它将主导其版面。
[13:19] This is what draws people because you know, you go to college, take political science, the Constitution exerts this gravitational pull on you.
这就是吸引人们的原因，因为你知道，你上大学，学习政治学，宪法对你有一种引力。
[13:25] It's very exciting. It's lots of fun. It's fine.
这非常令人兴奋。这很有趣。这很好。
[13:30] So, you and there's a long-standing history in these talks of um of expressions of worry about the current state of our civil society and whether our public law institutions will be able to abide given whatever crisis is at hand at one of these lectures.
所以，你，在这些演讲中长期以来一直存在着对我们公民社会现状的担忧，以及我们的公共法律机构是否能够应对讲座中出现的任何危机。
[13:46] And an exhort and you are exhorted to engage with these problems because the Republic depends upon it and the whole order matters.
并且受到鼓励，你要参与解决这些问题，因为共和国依赖于此，整个秩序至关重要。
[14:00] And I'm not saying that's not that there's not something to it, but if you go back and you look at some of these lectures on YouTube, that's what this is that's what this is about.
我并不是说这没有道理，但如果你回顾一下，在YouTube上看看这些演讲，那就是这个问题的所在，那就是这个问题的意义所在。
[14:07] It's a critical moment in our constitutional republic and whatever else.
这是我们宪政共和国的一个关键时刻，以及其他一切。
[14:13] But I also want to say that's not a new sentiment.
但我也想说，这并非一种新的情绪。
[14:16] So, I just took a minute on
所以，我只花了一分钟来
[14:18] Sentiment. So, I just took a minute on Google.
情绪。所以，我花了一分钟在谷歌上。
[14:20] I'm going to read you a line here.
我要在这里读给你听一行。
[14:22] Um it is not to be disguised that we have arrived at a critical period of our country's history.
嗯，不可否认，我们已经到达了我国历史上的一个关键时期。
[14:25] And that the capacity of the people for maintaining a constitutional constitutional government is being subjected to a severer test than ever before.
而且，人民维持宪政政府的能力正受到比以往任何时候都更严峻的考验。
[14:35] If, however, either the legislative or executive disregard the limits upon their power fixed by the people what we suppose to be a constitutional republic becomes the mere tyranny of the majority.
然而，如果立法或行政部门无视人民对其权力的限制，我们所认为的宪政共和国就变成了多数人的暴政。
[14:47] Okay, that was from the inauguration speech of a of a governor of California in 1867.
好的，这是加利福尼亚州一位州长在1867年的就职演说。
[14:52] You know, I'm just saying I'm not trying to say that there aren't challenges today.
你知道，我只是说，我并不是说今天没有挑战。
[14:58] I'm trying to say that the fact of challenges to the public civil order is not a new thing.
我想说的是，公共民事秩序面临挑战的事实并不是什么新鲜事。
[15:05] Right? It's a perennial thing and it is an important thing and many people here focus on that and want to talk about it and I don't mean to say it's not significant.
对吧？这是一个常青的问题，而且它很重要，这里很多人都关注它并想谈论它，我并不是说它不重要。
[15:14] I just want to say it's kind of an evergreen
我只是想说它有点像一个常青的
[15:18] kind of an evergreen problem.
一种常青的问题。
[15:19] problem.
问题。
[15:21] And it is I think unfairly eclipsed a different problem and that's the one I want to draw to your attention.
我认为它不公平地掩盖了一个不同的问题，而这正是我要提请您注意的问题。
[15:27] That is the problem of confronted by private law.
这就是私人法的困境。
[15:30] That's the law of organizing your relationships, your relationships with other people, with entities, with organizations.
这是组织你的人际关系、你与他人、与实体、与组织的关系的法律。
[15:39] Right? This is the law of of private ordering, buying and selling things, of jobs, of organizing business, of forming a family.
对吧？这是私人秩序的法律，买卖东西，工作，组织商业，组建家庭。
[15:47] Under the organizations. You understand? This is retail law. This is your day-to-day life.
在组织之下。你明白吗？这是零售法。这是你日常生活。
[15:55] In truth, this is the law that most people butt up with all the time. Right?
事实上，这是大多数人一直以来都要面对的法律。对吧？
[16:00] So, we start a little bit late. Why? Cuz your Sweetgreen's delivery was a little bit late.
所以，我们开始得有点晚。为什么？因为你的 Sweetgreen 的外卖有点晚。
[16:05] Okay, is this a breach of contract? Are we going to deal with it?
好的，这是违约吗？我们要处理这件事吗？
[16:06] Every everything that's going on is all private ordering.
正在发生的一切都是私人秩序。
[16:08] Right? So, my nose on the side, you know, back in my day when I was in law school we just they gave us deep-dish pizza, which isn't even pizza, right?
对吧？所以，我这边，你知道，在我上法学院的时候，他们只给我们芝加哥深盘披萨，那甚至都不是披萨，对吧？
[16:17] It's a soufflé. Pizza everything. It's not
它是一个舒芙蕾。披萨一切。它不是
[16:20] Soufflé. Pizza everything.
舒芙蕾。披萨一切。
[16:20] It's not pizza.
这不是披萨。
[16:22] So, it's it's pizza.
所以，它是它是披萨。
[16:22] So, it's it's always always pizza whatever.
所以，它总是总是披萨，无论如何。
[16:24] This is always always pizza whatever.
这总是总是披萨，无论如何。
[16:24] This is kind of fancy.
这有点花哨。
[16:26] Kind of fancy.
有点花哨。
[16:26] Anyway, whatever, it's Harvard.
总之，随便吧，这是哈佛。
[16:28] Okay, so whatever, it's Harvard.
好的，所以随便吧，这是哈佛。
[16:28] Okay, so when I say rule of law
好的，所以当我说法治时
[16:30] When I say rule of law right?
当我说法治时，对吗？
[16:32] When I say rule of law, you're habitualized to think about like legal
当我说法治时，你习惯性地会想到像法律
[16:34] Checks on the executive.
对行政部门的制约。
[16:36] Right? You're thinking about checks and balances.
对吗？你在想制衡。
[16:37] You're thinking about due process.
你在想正当程序。
[16:39] You're thinking about deprivation of life liberty, or
你在想剥夺生命、自由或
[16:41] Property, and and the like.
财产等等。
[16:43] But I want to suggest something cruder and more
但我想提出一些更粗俗、更
[16:45] Base. Right? Rule of law is
基础的东西。对吗？法治是
[16:47] An organized, predictable apparatus for
一个有组织、可预测的机制，用于
[16:51] Dealing with breakdowns in private
处理私人秩序中的崩溃。
[16:55] Ordering.
秩序。
[16:58] For being able to make private ordering
为了能够建立私人秩序
[16:59] And understanding that this isn't that
并理解这不会
[17:02] it's not going to come apart.
分崩离析。
[17:04] Do you understand?
你明白吗？
[17:06] This organization not by force, by by rule of law.
这种组织不是靠武力，而是靠法治。
[17:08] So, if I make a deal to have the Sweetgreen delivered
所以，如果我达成协议让Sweetgreen送餐
[17:11] And it's not, I'm not going to go with a
而它没有送来，我不会拿着
[17:13] Baseball bat and beat up the manager
棒球棒去殴打那里的经理。
[17:15] There. That we have a way of resolving
我们有解决
[17:16] This way of resolving this dispute.
这个争端的方法。
[17:18] There.
那里。
[17:21] This way of resolving this dispute, right?
解决这个争端的方式，对吧？
[17:23] That as a there's an organized way to invoke the coercive power of the state to make sure the deal we struck, the organization that we made works.
这样，有一个有组织的途径来动用国家的强制力，以确保我们达成的协议，我们建立的组织能够奏效。
[17:31] Okay, so let's take a step back.
好的，让我们退一步。
[17:33] Let's be political theorists for a for just a a minute here.
让我们当一分钟的政治理论家。
[17:37] So, what's our point here?
那么，我们的重点是什么？
[17:38] What's the point of organizing in civil society, right?
在公民社会中组织起来的意义是什么？对吧？
[17:41] So, all this time we talk about the the constitutional republic is in danger and will fall or you know, whatever.
所以，一直以来我们都在谈论宪政共和国处于危险之中，即将崩溃，或者你知道，随便什么。
[17:47] Why do we care, right?
我们为什么在乎，对吧？
[17:48] What's the point of the constitutional republic?
宪政共和国的意义是什么？
[17:50] Someone's like, I don't want to do Locke and Rousseau and whatever.
有人会说，我不想去研究洛克和卢梭之类的。
[17:53] That's that's fine.
那没关系。
[17:53] What I'm getting at The point I want to ask is why are we organizing that civil uh society, right?
我想问的是，我们为什么要组织公民社会，对吧？
[18:00] Why do we care?
我们为什么在乎？
[18:00] Why do we want this this organized the state, right?
我们为什么想要这个有组织的国家，对吧？
[18:04] We don't organize the state just to have the state.
我们组织国家不是仅仅为了拥有国家。
[18:07] Right?
对吧？
[18:07] We don't organize the state to just have the state.
我们组织国家不是仅仅为了拥有国家。
[18:08] The liberal and I mean like John Stuart Mill liberal, right?
自由主义者，我的意思是像约翰·斯图尔特·密尔那样的自由主义者，对吧？
[18:14] Like the um small L liberal.
就像那个小写字母l的自由主义者。
[18:14] A liberal society the point of organizing the state is to facilitate
一个自由主义社会的组织国家的目的是为了促进
[18:22] facilitate private ordering.
促进私人订购。
[18:24] private ordering. Right?
私人订购。对吗？
[18:26] Right? It's to allow individuals to flourish and organize their affairs.
对吗？这是为了让个人蓬勃发展并安排自己的事务。
[18:27] flourish and organize their affairs. Right?
蓬勃发展并安排自己的事务。对吗？
[18:29] So, the John Stuart Mill idea of liberty is that my liberty is to the
所以，约翰·斯图尔特·密尔的自由思想是，我的自由是到
[18:32] liberty is that my liberty is to the extent to the tip of your nose and we
自由是我的自由是到你的鼻尖的程度，我们
[18:33] extent to the tip of your nose and we can organize I can organize around that.
到你的鼻尖的程度，我们可以组织，我可以围绕这一点进行组织。
[18:35] can organize I can organize around that. So, what's the idea of civil society? To
可以组织，我可以围绕这一点进行组织。那么，公民社会的想法是什么？是为了
[18:37] So, what's the idea of civil society? To police that.
那么，公民社会的想法是什么？是为了约束它。
[18:40] police that. So, I got to erect this constitutional republic in order to
约束它。所以，我必须建立这个宪政共和国，以便
[18:41] constitutional republic in order to what? In order to flourish.
宪政共和国是为了什么？是为了蓬勃发展。
[18:43] what? In order to flourish.
什么？是为了蓬勃发展。
[18:45] But what does flourishing mean to me?
但对我来说，蓬勃发展意味着什么？
[18:47] That doesn't matter. Right? That's my problem to go out and organize.
这无关紧要。对吗？这是我出去组织的问题。
[18:50] problem to go out and organize. Public law is the infrastructure that lets you
出去组织的问题。公共法是使你能够
[18:52] law is the infrastructure that lets you then create the system of private law.
法是使你能够然后创建私法体系的基础设施。
[18:55] then create the system of private law. In order to order your life.
然后创建私法体系。为了安排你的生活。
[18:57] In order to order your life. The port The point of the order society of
为了安排你的生活。港口，秩序社会的要点是
[18:59] The point of the order society of liberty. Why is it so important you
自由秩序社会的要点。为什么如此重要，你
[19:01] liberty. Why is it so important you don't deprive me of liberty without due process?
自由。为什么如此重要，你不能在没有正当程序的情况下剥夺我的自由？
[19:02] process? What is that liberty to go and organize my life, to marry or not, to
程序？那种去组织我生活的自由，结婚或不结婚，
[19:04] organize my life, to marry or not, to build a business or not, to contract or
组织我生活的自由，结婚或不结婚，建立企业或不建立企业，签订合同或
[19:07] build a business or not, to contract or not, whatever.
建立企业或不建立企业，签订合同或不签订合同，随便什么。
[19:09] contract or not, whatever. All of these uh things.
签订合同或不签订合同，随便什么。所有这些嗯，事情。
[19:12] All of these uh things. Any that is So, what if you think of the
所有这些嗯，事情。任何一个就是，所以，如果你认为
[19:14] Any that is So, what if you think of the civil
任何一个就是，所以，如果你认为公民
[19:15] civil uh society as something more than that,
嗯，社会不仅仅是那样，
[19:17] uh society as something more than that, you're actually profoundly illiberal
嗯，社会不仅仅是那样，你实际上是深刻地不自由的
[19:20] you're actually profoundly illiberal in the classical sense. Because that's
按照古典意义来说，你实际上是深刻地不自由的。因为那是
[19:22] In the classical sense.
从古典意义上讲。
[19:24] Because that's what it that was the idea of individual liberty.
因为那就是它，那就是个人自由的想法。
[19:26] So, so that's our first point.
所以，所以这是我们的第一点。
[19:28] Right? Public law, private law, that's a sketch of what this is about.
对吧？公法，私法，这是关于此事的概要。
[19:31] On this view, the project of private law is as if not more important than the project of public law.
从这个角度看，私法项目与公法项目同等重要，甚至更重要。
[19:35] Right? That's what we're trying to get to let people go and do their thing.
对吧？这就是我们试图让人们去做他们想做的事情。
[19:40] Okay, so that brings us to our second our second bucket.
好的，那么这就把我们带到了第二个，我们的第二个类别。
[19:44] Which is the role of private law.
那就是私法的角色。
[19:47] How does this work? What does private law do for us in private ordering?
这是如何运作的？私法在我们进行私下秩序安排时能为我们做什么？
[19:51] So, let's take a step back and think this probably would have been useful at the start of law school.
所以，让我们退一步想想，这可能在法学院刚开始的时候会很有用。
[19:55] Let's kind of think about what do I mean by this landscape.
让我们来思考一下，我说的这个图景是什么意思。
[19:58] We'll start with the big three: property, contract, and tort.
我们将从三大领域开始：财产权、合同和侵权。
[20:02] Right, let's start with a first approximate This isn't exactly correct, but it's roughly uh true.
对，让我们先来一个大致的近似。这并不完全准确，但大致上是正确的。
[20:07] Let's just start with the basic baseline that you have a property right in your things and in your person.
让我们从基本原则开始，即你对你的物品和你的个人拥有财产权。
[20:11] It's not exactly true, but roughly speaking, you have some kind of right to your body and your and your things.
这并不完全准确，但大致来说，你对你的身体和你的物品拥有某种权利。
[20:24] So, what's contract? That is consensual transfer of those rights.
[20:26] transfer of those rights. What is tort? That's non-consensual
[20:29] What is tort? That's non-consensual transfer of those rights.
[20:31] transfer of those rights. That's how it makes sense now, right?
[20:32] That's how it makes sense now, right? So, we've got We have your rights,
[20:34] So, we've got We have your rights, that's property, and then we have a
[20:35] that's property, and then we have a contract, that's how you you give it
[20:37] contract, that's how you you give it away for in a deal, or you've got uh
[20:40] away for in a deal, or you've got uh tort, where after the fact we're filling
[20:43] tort, where after the fact we're filling in the deal cuz it was a non-consensual
[20:45] in the deal cuz it was a non-consensual transfer. So, what's everything else?
[20:47] transfer. So, what's everything else? Everything else are specialized
[20:49] Everything else are specialized applications of that. Corporation, LLC,
[20:52] applications of that. Corporation, LLC, marriage, trust, um agency, partnership,
[20:57] marriage, trust, um agency, partnership, wills, everything. They're all
[20:58] wills, everything. They're all specialized applications of the general
[21:01] specialized applications of the general of the of the of the uh big three.
[21:04] of the of the of the uh big three. They're all specialized forms, right?
[21:07] They're all specialized forms, right? They all reflect specialized special
[21:09] They all reflect specialized special instances of these uh problems.
[21:11] instances of these uh problems. Well, what happens when the private
[21:12] Well, what happens when the private ordering goes wrong, like really uh
[21:15] ordering goes wrong, like really uh wrong? Right, well, one, there's, you
[21:16] wrong? Right, well, one, there's, you know, criminal backup, or the other
[21:18] know, criminal backup, or the other there's bankruptcy, right? So, now we've
[21:19] there's bankruptcy, right? So, now we've got some public backstops when this uh
[21:23] got some public backstops when this uh uh when this goes wrong. But when you
[21:24] uh when this goes wrong. But when you think of it in this light, what's the
[21:26] think of it in this light, what's the project? The project is facilitative,
[21:29] project? The project is facilitative, not regulatory.
[21:31] not regulatory. Do you understand the little role of the
[21:32] Do you understand the little role of the lawyer now as like we This is old
[21:34] lawyer now as like we This is old expression, lawyer is transaction costs
[21:36] expression, lawyer is transaction costs uh engineer, lawyer to make this stuff
[21:39] uh engineer, lawyer to make this stuff uh work. The idea behind these these
[21:42] uh work. The idea behind these these rules is facilitative, not regulatory.
[21:45] rules is facilitative, not regulatory. It's a really big deal for reasons we'll
[21:47] It's a really big deal for reasons we'll come to in a in a minute when we think
[21:49] come to in a in a minute when we think about cases and we think about drafting
[21:51] about cases and we think about drafting statutes. The point I want to make now
[21:53] statutes. The point I want to make now is if that um
[21:54] is if that um our idea is to allow people to order the
[21:57] our idea is to allow people to order the way they want unless we have some policy
[21:59] way they want unless we have some policy reason not to let them do it.
[22:01] reason not to let them do it. Now, there may be good public policy
[22:03] Now, there may be good public policy reasons why we're not going to let you
[22:04] reasons why we're not going to let you do certain forms of of of private
[22:06] do certain forms of of of private ordering. That's fine.
[22:08] ordering. That's fine. But outside those areas, we want to
[22:10] But outside those areas, we want to facilitate. We want to make this work.
[22:12] facilitate. We want to make this work. So, go back to the machinery of all of
[22:15] So, go back to the machinery of all of these areas of law that you've uh
[22:17] these areas of law that you've uh learned.
[22:18] learned. Right, there's generally speaking pieces
[22:21] Right, there's generally speaking pieces that are for third parties.
[22:23] that are for third parties. Third parties need to understand what's
[22:24] Third parties need to understand what's going on, and there are pieces for the
[22:26] going on, and there are pieces for the people involved uh in the ordering.
[22:28] people involved uh in the ordering. Everything you've learned
[22:30] Everything you've learned and everything you'll be doing, I think,
[22:32] and everything you'll be doing, I think, will make more sense in that framework.
[22:33] will make more sense in that framework. I'm going to give you examples.
[22:35] I'm going to give you examples. Right, all is very common across private
[22:37] Right, all is very common across private law to see formation rules.
[22:40] law to see formation rules. You know what I mean I say formation
[22:41] You know what I mean I say formation rules? Like, how do you trigger this
[22:43] rules? Like, how do you trigger this form? So, let's go back to contract.
[22:46] form? So, let's go back to contract. Think about contract for a minute.
[22:47] Think about contract for a minute. Offer, acceptance, consideration. Think
[22:50] Offer, acceptance, consideration. Think of wills, writing, signature,
[22:51] of wills, writing, signature, attestation. Agency, you you you
[22:55] attestation. Agency, you you you manifest an intent that someone else can
[22:57] manifest an intent that someone else can bind you, or more recently, the written
[22:59] bind you, or more recently, the written power of attorney because we want to be
[23:00] power of attorney because we want to be able to prove this. If it's a LLC or
[23:03] able to prove this. If it's a LLC or corporation that has limited liability,
[23:05] corporation that has limited liability, you are filing with the state. All these
[23:06] you are filing with the state. All these formation rules,
[23:08] formation rules, what are they about, right? We are We're
[23:10] what are they about, right? We are We're starting to see they're about how we
[23:11] starting to see they're about how we signal to our
[23:13] signal to our our counterparty and third parties that
[23:15] our counterparty and third parties that we've created a form, right? What we are
[23:18] we've created a form, right? What we are uh what we're doing.
[23:20] uh what we're doing. And what do you see inside all of these
[23:22] And what do you see inside all of these different areas of law? You see rules of
[23:24] different areas of law? You see rules of governance or construction or default
[23:27] governance or construction or default rules.
[23:28] rules. So, you see how there's a common thread
[23:29] So, you see how there's a common thread across them. What does that look like?
[23:31] across them. What does that look like? Let's go back to contract. Do you
[23:33] Let's go back to contract. Do you remember Lady Lucy Duff Gordon? Right,
[23:35] remember Lady Lucy Duff Gordon? Right, exclusive dealing, where these So, where
[23:37] exclusive dealing, where these So, where we read the contract to say, "Well,
[23:39] we read the contract to say, "Well, there's an implied duty of good faith
[23:41] there's an implied duty of good faith and fair dealing."
[23:43] and fair dealing." So, this isn't just Cardozo saying,
[23:44] So, this isn't just Cardozo saying, "Well, I'm just going to make something
[23:45] "Well, I'm just going to make something up." That's facilitating. Well, these
[23:47] up." That's facilitating. Well, these two people made a deal. I you're
[23:49] two people made a deal. I you're exclusive You're my exclusive seller.
[23:51] exclusive You're my exclusive seller. Well, the only way that deal makes sense
[23:53] Well, the only way that deal makes sense is if you're going to make reasonable
[23:54] is if you're going to make reasonable efforts to sell. So, I'm going to
[23:56] efforts to sell. So, I'm going to facilitate What is the probable intent
[23:58] facilitate What is the probable intent of the people here? I'm not regulating
[24:01] of the people here? I'm not regulating their deal. I'm facilitating what their
[24:03] their deal. I'm facilitating what their ordering is meant uh to be. In
[24:05] ordering is meant uh to be. In partnership, corporation, LLC, you'll
[24:09] partnership, corporation, LLC, you'll see rules of profit sharing, of voting,
[24:11] see rules of profit sharing, of voting, of of um of preventing strategic
[24:14] of of um of preventing strategic behavior. Why? Well, these are all what
[24:16] behavior. Why? Well, these are all what we think are what the parties would have
[24:17] we think are what the parties would have wanted. And to varying degrees, we let
[24:20] wanted. And to varying degrees, we let the parties say something else. But if
[24:22] the parties say something else. But if they don't tell us something else, we
[24:23] they don't tell us something else, we give them these terms. Why? Because
[24:25] give them these terms. Why? Because we've learned this is what they're
[24:26] we've learned this is what they're trying to do. There's this It's kind of
[24:28] trying to do. There's this It's kind of magical.
[24:30] magical. Right, there's something uh
[24:31] Right, there's something uh astonishingly beautiful
[24:33] astonishingly beautiful and magical that there is on the shelf
[24:36] and magical that there is on the shelf all these forms that you do the right
[24:39] all these forms that you do the right formation signal, right? You check the
[24:42] formation signal, right? You check the right boxes, you do offer acceptance
[24:44] right boxes, you do offer acceptance consideration, you manifest an intent to
[24:47] consideration, you manifest an intent to with someone else to go into a business
[24:49] with someone else to go into a business for profit, that's partnership. You file
[24:51] for profit, that's partnership. You file with the state, that's your corporation.
[24:53] with the state, that's your corporation. You manifest an intent and give
[24:54] You manifest an intent and give property, that's a trust that you Once
[24:56] property, that's a trust that you Once you do the formation rule, you
[24:59] you do the formation rule, you immediately get all of this stuff.
[25:01] immediately get all of this stuff. That's not regulatory, it's
[25:02] That's not regulatory, it's facilitative. Trust fiduciary governance
[25:05] facilitative. Trust fiduciary governance and trustee removal. Or here's another
[25:07] and trustee removal. Or here's another one. This is a little bit weird to think
[25:09] one. This is a little bit weird to think of it this way. Marriage.
[25:11] of it this way. Marriage. Marriage is a private ordering form.
[25:13] Marriage is a private ordering form. Right, what hap- What's marriage? You go
[25:14] Right, what hap- What's marriage? You go through a formation ritual, right?
[25:16] through a formation ritual, right? There's a filing with the state, and
[25:19] There's a filing with the state, and then what do you get? You get a marital
[25:20] then what do you get? You get a marital property regime, that's your default.
[25:23] property regime, that's your default. You might like it or not, you can change
[25:25] You might like it or not, you can change it if you don't. And you get dissolution
[25:28] it if you don't. And you get dissolution rules.
[25:29] rules. Right, you have rules for dissolution
[25:31] Right, you have rules for dissolution during life, and you also get rules for
[25:32] during life, and you also get rules for dissolution at death. You might not like
[25:34] dissolution at death. You might not like those rules, so you contract otherwise
[25:36] those rules, so you contract otherwise if you don't. Right? So, right, this is
[25:39] if you don't. Right? So, right, this is I This is a romantic vision, right? So,
[25:41] I This is a romantic vision, right? So, like since I said my wife, "Hey, let's
[25:43] like since I said my wife, "Hey, let's have a long-term relational contract for
[25:45] have a long-term relational contract for horizontal integration or a household
[25:46] horizontal integration or a household production function." Right, so under
[25:47] production function." Right, so under This is This is private ordering. Now,
[25:49] This is This is private ordering. Now, we'll have, you know, franchisees. It's
[25:52] we'll have, you know, franchisees. It's private Do you understand private
[25:53] private Do you understand private ordering? Okay. So, you don't have to
[25:56] ordering? Okay. So, you don't have to reinvent every one of these things every
[25:59] reinvent every one of these things every time, right? The private law is
[26:00] time, right? The private law is providing that. What's your job as the
[26:02] providing that. What's your job as the lawyer? Your job as the lawyer is to
[26:05] lawyer? Your job as the lawyer is to understand the objective of the client.
[26:08] understand the objective of the client. Figure out which one of those forms will
[26:11] Figure out which one of those forms will get them closest to the objective, and
[26:14] get them closest to the objective, and then go
[26:16] then go make it right. Change default rules that
[26:18] make it right. Change default rules that don't fit. Do you see what I'm I'm
[26:20] don't fit. Do you see what I'm I'm getting at here at first approximation.
[26:22] getting at here at first approximation. That's not just a deal, right? That's
[26:24] That's not just a deal, right? That's your transactional side, right? Transact
[26:26] your transactional side, right? Transact Many of you will be transactional
[26:27] Many of you will be transactional lawyers. What you're doing is you're
[26:29] lawyers. What you're doing is you're taking one of the forms, and you're
[26:31] taking one of the forms, and you're jamming what people are trying to
[26:33] jamming what people are trying to achieve into that form. So, every time
[26:36] achieve into that form. So, every time that LLC agreement doesn't have a clause
[26:38] that LLC agreement doesn't have a clause in it is a failure that is needed is a
[26:41] in it is a failure that is needed is a failure of lawyering. Not to understand
[26:44] failure of lawyering. Not to understand that the form doesn't fit what they're
[26:45] that the form doesn't fit what they're trying to do. Every time the marriage
[26:48] trying to do. Every time the marriage comes asunder and it turns out those
[26:49] comes asunder and it turns out those rules aren't right, it's a failure.
[26:51] rules aren't right, it's a failure. Means that we should have we should that
[26:53] Means that we should have we should that we didn't de- change those default rules
[26:55] we didn't de- change those default rules to fit what the people uh wanted. Even
[26:59] to fit what the people uh wanted. Even tort, like let's use Goldberg, now Dean
[27:01] tort, like let's use Goldberg, now Dean Goldberg, right? The Pa- his vision of
[27:02] Goldberg, right? The Pa- his vision of tort, the Palsgraf principle, right?
[27:05] tort, the Palsgraf principle, right? Tort is all about you have a right, and
[27:07] Tort is all about you have a right, and if somebody takes that right, you're in
[27:08] if somebody takes that right, you're in compensation. Non-consensual transfer.
[27:11] compensation. Non-consensual transfer. Well, what's his idea of the Palsgraf
[27:12] Well, what's his idea of the Palsgraf principle? That it has to be
[27:14] principle? That it has to be foreseeable, right? If it's not
[27:15] foreseeable, right? If it's not foreseeable, you're taking someone
[27:17] foreseeable, you're taking someone else's right. Do you understand? That's
[27:18] else's right. Do you understand? That's just we're filling in what the contract
[27:20] just we're filling in what the contract would have been. We're giving you
[27:21] would have been. We're giving you compensation for what was uh taken.
[27:25] compensation for what was uh taken. So, on this view,
[27:27] So, on this view, on this view, the private law is just a
[27:29] on this view, the private law is just a set of forms. They're forms that to
[27:30] set of forms. They're forms that to varying degrees
[27:32] varying degrees uh
[27:33] uh let you organize, and to varying
[27:36] let you organize, and to varying degrees, let you customize the
[27:38] degrees, let you customize the off-the-shelf form to get at what you're
[27:40] off-the-shelf form to get at what you're trying uh to do. I understand there are
[27:43] trying uh to do. I understand there are problematic edge cases, right? We do
[27:44] problematic edge cases, right? We do them in class, that's what's fun, right?
[27:46] them in class, that's what's fun, right? So, in a contracts class, that's Hammer
[27:48] So, in a contracts class, that's Hammer and Sidway, that's promises not to
[27:50] and Sidway, that's promises not to smoke. And in my class, that's, well, is
[27:53] smoke. And in my class, that's, well, is I'm going to give the manuscripts to the
[27:55] I'm going to give the manuscripts to the Hebrew University in Jerusalem, is that
[27:57] Hebrew University in Jerusalem, is that declaration of trust? Is that a gift?
[27:59] declaration of trust? Is that a gift? Because a gift to the Those are
[28:01] Because a gift to the Those are problems with formation.
[28:04] problems with formation. Right, those are formation problems, and
[28:05] Right, those are formation problems, and you get a good lawyer involved, we'll
[28:07] you get a good lawyer involved, we'll solve it, right? We'll find a form, and
[28:10] solve it, right? We'll find a form, and we'll uh uh uh jam you uh jam you in.
[28:13] we'll uh uh uh jam you uh jam you in. Right? Okay. Another way of uh getting
[28:15] Right? Okay. Another way of uh getting at this cuz, you know, Passover is uh
[28:17] at this cuz, you know, Passover is uh coming. When I was in law school, one of
[28:18] coming. When I was in law school, one of my law school classmates invited me to
[28:20] my law school classmates invited me to her family's for a Passover. They had a
[28:22] her family's for a Passover. They had a tradition. Their tradition is you had to
[28:24] tradition. Their tradition is you had to interrupt the Seder at some point and
[28:26] interrupt the Seder at some point and make some unique contribution. So, what
[28:29] make some unique contribution. So, what I did was when they did the four
[28:30] I did was when they did the four children, the four questions, you know,
[28:32] children, the four questions, you know, they had the different questions, I
[28:33] they had the different questions, I chimed in as, "I got a fifth child, a
[28:35] chimed in as, "I got a fifth child, a Chicago-trained uh child." The
[28:37] Chicago-trained uh child." The Chicago-trained child asks, "Isn't
[28:40] Chicago-trained child asks, "Isn't Weren't the 10 plagues just a really a
[28:41] Weren't the 10 plagues just a really a failure in private ordering and
[28:43] failure in private ordering and enforcement mechanisms that if we had
[28:45] enforcement mechanisms that if we had had a enforcement regime, we wouldn't
[28:47] had a enforcement regime, we wouldn't have need to like kill all the firstborn
[28:49] have need to like kill all the firstborn in whatever uh uh Do you understand?
[28:50] in whatever uh uh Do you understand? Like, that's what hap- It's funny, but
[28:52] Like, that's what hap- It's funny, but also,
[28:54] also, that's what happens we don't have
[28:56] that's what happens we don't have enforceable private ordering forms. You
[28:59] enforceable private ordering forms. You have to slaughter people's children to
[29:01] have to slaughter people's children to get them to comply. I mean, that maybe
[29:02] get them to comply. I mean, that maybe hit him with a baseball bat. You This is
[29:04] hit him with a baseball bat. You This is an ordered society is about making
[29:07] an ordered society is about making ordering uh uh work. Okay, so that takes
[29:10] ordering uh uh work. Okay, so that takes us to the third point, third point I
[29:12] us to the third point, third point I want to talk about, which is your role.
[29:14] want to talk about, which is your role. So, I've already talked about your roles
[29:16] So, I've already talked about your roles as fiduciary for your client, but also,
[29:20] as fiduciary for your client, but also, as a member of a learned profession,
[29:22] as a member of a learned profession, meaning obligation to society. And I
[29:25] meaning obligation to society. And I want to suggest that obligation is not,
[29:26] want to suggest that obligation is not, you know, defending the republic from
[29:28] you know, defending the republic from falling, you know, whatever. I I mean,
[29:30] falling, you know, whatever. I I mean, that's important.
[29:32] that's important. But also, making this stuff work so
[29:35] But also, making this stuff work so within the society, we can flourish.
[29:37] within the society, we can flourish. Each person can flourish however they
[29:38] Each person can flourish however they want. So, we've talked about one of
[29:40] want. So, we've talked about one of those,
[29:41] those, which is being alert to the objective of
[29:44] which is being alert to the objective of the client. That means listening.
[29:46] the client. That means listening. Do you understand? That means like a
[29:47] Do you understand? That means like a good lawyer is a counselor Uh at law.
[29:50] good lawyer is a counselor Uh at law. You're listening. You're getting what
[29:51] You're listening. You're getting what they're trying to achieve and helping
[29:54] they're trying to achieve and helping the client get the right form and
[29:56] the client get the right form and customizing the form. Good transactional
[29:59] customizing the form. Good transactional work involves listening
[30:01] work involves listening with an empathetic ear, really getting
[30:04] with an empathetic ear, really getting the objective, counseling the client on
[30:06] the objective, counseling the client on the ways to get there, and making that
[30:08] the ways to get there, and making that form fit the circumstances. That's one
[30:11] form fit the circumstances. That's one we've been emphasizing. I want to talk
[30:12] we've been emphasizing. I want to talk about two others.
[30:14] about two others. One is
[30:16] One is when
[30:17] when dealing with private ordering gone awry.
[30:21] dealing with private ordering gone awry. So now we're talking about litigation
[30:22] So now we're talking about litigation and lawyering and in court and also
[30:24] and lawyering and in court and also judging.
[30:25] judging. And the third is going to be your
[30:27] And the third is going to be your responsibility for making the law for
[30:29] responsibility for making the law for making law work.
[30:31] making law work. So here's what I'm going to do. I want
[30:32] So here's what I'm going to do. I want to go back to this new case, a favorite
[30:34] to go back to this new case, a favorite it's a favorite case. I just started at
[30:36] it's a favorite case. I just started at teaching this. But we're going to do
[30:37] teaching this. But we're going to do this and some of you have seen it, but
[30:38] this and some of you have seen it, but we're going to do it differently now cuz
[30:40] we're going to do it differently now cuz we're a different prism. Remember this
[30:41] we're a different prism. Remember this guy? So this is Beck, right? This is the
[30:44] guy? So this is Beck, right? This is the Beck case from Montana. For those who
[30:46] Beck case from Montana. For those who don't know what happened here, so this
[30:48] don't know what happened here, so this guy Beck is in his truck and I takes his
[30:51] guy Beck is in his truck and I takes his iPhone, he makes a recording, right?
[30:54] iPhone, he makes a recording, right? Takes his iPhone, he makes a recording.
[30:57] Takes his iPhone, he makes a recording. Give all my possessions. If anything
[30:59] Give all my possessions. If anything happens to me whatsoever, I give all my
[31:02] happens to me whatsoever, I give all my possessions, everything to Jason Beck,
[31:06] possessions, everything to Jason Beck, my brother.
[31:08] my brother. I don't think I'll find out that night
[31:10] I don't think I'll find out that night get one thing.
[31:12] get one thing. Not one thing.
[31:15] Not one thing. Okay. So
[31:17] Okay. So we understand what's going on here? Now,
[31:19] we understand what's going on here? Now, he's trying to he's trying to order his
[31:21] he's trying to he's trying to order his affairs.
[31:22] affairs. Do you understand what I So here we have
[31:24] Do you understand what I So here we have a member of our civil society who is
[31:26] a member of our civil society who is exercising that right that we want
[31:28] exercising that right that we want everybody in our society to have to
[31:30] everybody in our society to have to order his affairs, right? This This is I
[31:33] order his affairs, right? This This is I is manifesting testamentary intent. I
[31:35] is manifesting testamentary intent. I don't Nobody's going to just I don't
[31:36] don't Nobody's going to just I don't think everybody does Anybody disagree
[31:37] think everybody does Anybody disagree here? He's This guy is telling us what
[31:39] here? He's This guy is telling us what he wants to happen to his property when
[31:42] he wants to happen to his property when he dies. Now, if he came to you once
[31:45] he dies. Now, if he came to you once you're licensed or he came to me, I am
[31:47] you're licensed or he came to me, I am licensed. If
[31:49] licensed. If if it came to you, came to me it comes
[31:51] if it came to you, came to me it comes to me, what would we do? Well, I know
[31:53] to me, what would we do? Well, I know the forms, right? I'm like, "Oh, we're
[31:54] the forms, right? I'm like, "Oh, we're going to tell her this. We can do a
[31:55] going to tell her this. We can do a revocable trust. We can do a will." We I
[31:57] revocable trust. We can do a will." We I got lots of forms. And I can make it fit
[32:00] got lots of forms. And I can make it fit and I can do this right and I can make
[32:01] and I can do this right and I can make sure Christina Fontenot doesn't see a
[32:03] sure Christina Fontenot doesn't see a penny. No problem. Good to go, right?
[32:06] penny. No problem. Good to go, right? But he didn't.
[32:08] But he didn't. Right? Didn't have a a lawyer there,
[32:10] Right? Didn't have a a lawyer there, right? So there was no transactional
[32:12] right? So there was no transactional lawyer involved. So where are we now?
[32:14] lawyer involved. So where are we now? Well, the lawyer's involved after he
[32:16] Well, the lawyer's involved after he dies when his brother brings this to
[32:18] dies when his brother brings this to court. When his brother brings this to
[32:20] court. When his brother brings this to court and wants to a probate it. So now
[32:23] court and wants to a probate it. So now remember I said we have three spots. One
[32:24] remember I said we have three spots. One is the client comes to you, we're going
[32:26] is the client comes to you, we're going to help them order. Second is it gets
[32:28] to help them order. Second is it gets busted and now we're in court. So what
[32:31] busted and now we're in court. So what can we do when we're in court? Here the
[32:33] can we do when we're in court? Here the claim I want to make
[32:35] claim I want to make is that our grand debates about
[32:37] is that our grand debates about constitutional structure, about public
[32:39] constitutional structure, about public law have disfigured
[32:41] law have disfigured our reasoning in private law cases.
[32:44] our reasoning in private law cases. Right? We are we're bringing the wrong
[32:46] Right? We are we're bringing the wrong We're bringing an inappropriate
[32:47] We're bringing an inappropriate methodology to these cases. So here's
[32:49] methodology to these cases. So here's the statute at issue. Here's the statute
[32:52] the statute at issue. Here's the statute in this case.
[32:54] in this case. A document or a writing added upon a
[32:56] A document or a writing added upon a document
[32:58] document is probatable if there's clear and
[33:00] is probatable if there's clear and convincing evidence the decedent
[33:02] convincing evidence the decedent intended the document to be his will.
[33:05] intended the document to be his will. Everybody agrees this guy meant for the
[33:07] Everybody agrees this guy meant for the for the for the video to be a will.
[33:09] for the for the video to be a will. Right? The court says so in the
[33:10] Right? The court says so in the decision. This this reflects the
[33:12] decision. This this reflects the testamentary intent. Nobody's doubting
[33:13] testamentary intent. Nobody's doubting that he wants this video to be his will.
[33:16] that he wants this video to be his will. It's a statutory interpretation case. Is
[33:18] It's a statutory interpretation case. Is the recording a document? Is the
[33:21] the recording a document? Is the recording a document or a
[33:24] recording a document or a writing upon a document?
[33:26] writing upon a document? That's the question.
[33:28] That's the question. Okay, that's that's fine. So let's do
[33:30] Okay, that's that's fine. So let's do the internal and then the external.
[33:31] the internal and then the external. Here's how the court resolved the case.
[33:33] Here's how the court resolved the case. The court says well, the statute is
[33:34] The court says well, the statute is clear and unambiguous.
[33:37] clear and unambiguous. It's always a warning, right? When we
[33:38] It's always a warning, right? When we say a statute is clear and unambiguous.
[33:40] say a statute is clear and unambiguous. Statute is clear and unambiguous. It
[33:42] Statute is clear and unambiguous. It doesn't that the the video is not.
[33:45] doesn't that the the video is not. Okay, why? Well, it says document or a
[33:48] Okay, why? Well, it says document or a writing upon a document. So to be a
[33:50] writing upon a document. So to be a document, you must be capable of having
[33:53] document, you must be capable of having writing put upon it.
[33:55] writing put upon it. There's no It's Well, there's a
[33:56] There's no It's Well, there's a recording. You can't put a writing upon
[33:58] recording. You can't put a writing upon that. So writing has to A document must
[34:01] that. So writing has to A document must be something that has writing on it.
[34:03] be something that has writing on it. A document is not a document if it
[34:05] A document is not a document if it doesn't have a writing upon it. So this
[34:07] doesn't have a writing upon it. So this is not that, says the court. That's one
[34:10] is not that, says the court. That's one argument. Secondly, the court says also
[34:12] argument. Secondly, the court says also we see that our that there's this
[34:14] we see that our that there's this uniform uniform electronic
[34:16] uniform uniform electronic wills act, which our state has not
[34:19] wills act, which our state has not adopted.
[34:20] adopted. But it says to be an electronic will, it
[34:23] But it says to be an electronic will, it has to be readable as text. And this is
[34:25] has to be readable as text. And this is not readable as text. So that reinforced
[34:27] not readable as text. So that reinforced our conclusion that's definitely not.
[34:29] our conclusion that's definitely not. Okay, that's how the court answers this
[34:30] Okay, that's how the court answers this question. Do you see how the the mode of
[34:32] question. Do you see how the the mode of reasoning here?
[34:33] reasoning here? This is about limiting power.
[34:36] This is about limiting power. Do you see this very public law way of
[34:37] Do you see this very public law way of thinking? It's the claim I want to make.
[34:39] thinking? It's the claim I want to make. This about protecting, about limited
[34:41] This about protecting, about limited power, about well, I'm concerned about
[34:44] power, about well, I'm concerned about the coercive power of the state. None of
[34:45] the coercive power of the state. None of that's an issue here, right?
[34:47] that's an issue here, right? This is a facilitative statute.
[34:50] This is a facilitative statute. This is when I have overwhelming
[34:51] This is when I have overwhelming evidence that the thing was meant to be
[34:53] evidence that the thing was meant to be a will, it should be a will.
[34:55] a will, it should be a will. Now, I'm not saying that it's clear that
[34:57] Now, I'm not saying that it's clear that the right that the video is in or the
[34:58] the right that the video is in or the video is not in. I'm just saying there's
[35:00] video is not in. I'm just saying there's nothing like that there. It's a right?
[35:03] nothing like that there. It's a right? The claim I'm making is the
[35:04] The claim I'm making is the preoccupation with public law
[35:07] preoccupation with public law obscured from the court what to do. And
[35:09] obscured from the court what to do. And the court wants to think that it's super
[35:11] the court wants to think that it's super textualist, right? A writing or document
[35:14] textualist, right? A writing or document of a writing upon a document and how
[35:15] of a writing upon a document and how it's reasoning. And then of course it
[35:17] it's reasoning. And then of course it makes this totally non-textual turn to
[35:19] makes this totally non-textual turn to start reading a statute that was never
[35:20] start reading a statute that was never even adopted.
[35:22] even adopted. That was never even adopted, right?
[35:24] That was never even adopted, right? Okay. What would be another way to think
[35:26] Okay. What would be another way to think about the Let's do another way to think
[35:28] about the Let's do another way to think of this. So here's the one One of you, I
[35:30] of this. So here's the one One of you, I don't know if it was in this room.
[35:31] don't know if it was in this room. Somebody in their exam wrote this.
[35:34] Somebody in their exam wrote this. Well, if you have a statute that says a
[35:36] Well, if you have a statute that says a farm animal or a person riding upon a
[35:39] farm animal or a person riding upon a farm animal doesn't make chickens no
[35:41] farm animal doesn't make chickens no longer farm animals cuz you can't ride a
[35:43] longer farm animals cuz you can't ride a chicken.
[35:44] chicken. Right? A Suppose you have a statute that
[35:46] Right? A Suppose you have a statute that says farm animals or people riding upon
[35:49] says farm animals or people riding upon farm animals. Well, you can't be a farm
[35:51] farm animals. Well, you can't be a farm animal then if people don't ride you.
[35:53] animal then if people don't ride you. But isn't that exactly what this court
[35:55] But isn't that exactly what this court just said?
[35:56] just said? Right? If chickens are still farm
[35:57] Right? If chickens are still farm animals under the under this student
[35:59] animals under the under this student statute, then maybe riding then
[36:01] statute, then maybe riding then documents can be documents even if they
[36:03] documents can be documents even if they can't have writings upon them.
[36:05] can't have writings upon them. I know actually. I I know that the
[36:09] I know actually. I I know that the drafter of this statute did not mean
[36:11] drafter of this statute did not mean document or writing upon a document to
[36:13] document or writing upon a document to signal that document means only things
[36:16] signal that document means only things writing about it cuz it was my friend
[36:18] writing about it cuz it was my friend Larry Waggoner at the University of
[36:19] Larry Waggoner at the University of Michigan who wrote it. And what he was
[36:21] Michigan who wrote it. And what he was thinking about were all these wills
[36:23] thinking about were all these wills where people scratched something out and
[36:25] where people scratched something out and they wrote something else in by hand.
[36:27] they wrote something else in by hand. That's what he thought.
[36:29] That's what he thought. And if you were willing to approach this
[36:31] And if you were willing to approach this case from a different framework instead
[36:33] case from a different framework instead of the disfiguring of public law,
[36:36] of the disfiguring of public law, instead if you came at this as this a
[36:38] instead if you came at this as this a facilitative statute, it's actually a
[36:40] facilitative statute, it's actually a uniform act that has a history, where
[36:41] uniform act that has a history, where did it come from, maybe it decided
[36:43] did it come from, maybe it decided differently, maybe not.
[36:45] differently, maybe not. It's actually very I mean a hard
[36:47] It's actually very I mean a hard question whether videos fall under the
[36:49] question whether videos fall under the statute. But that would be the
[36:50] statute. But that would be the conversation you would be having.
[36:53] conversation you would be having. I don't mean to say to be clear, I don't
[36:56] I don't mean to say to be clear, I don't mean to And let me just say one other
[36:57] mean to And let me just say one other thing. It's I don't even think the
[36:58] thing. It's I don't even think the court's right. I mean we know this,
[37:00] court's right. I mean we know this, right? That a video has like you're all
[37:01] right? That a video has like you're all on TikTok. You all know videos can have
[37:03] on TikTok. You all know videos can have writing upon them.
[37:04] writing upon them. You understand like if the guy just
[37:05] You understand like if the guy just turned on closed captioning, then we
[37:07] turned on closed captioning, then we would probate it?
[37:09] would probate it? That's really weird, right? That's we
[37:11] That's really weird, right? That's we hold today that our legislature decided
[37:14] hold today that our legislature decided that if you turn closed captioning on,
[37:16] that if you turn closed captioning on, video will is good, but if you don't,
[37:17] video will is good, but if you don't, video will is not.
[37:19] video will is not. When it when it adopted this uniform act
[37:22] When it when it adopted this uniform act that was drafted in late '80s.
[37:25] that was drafted in late '80s. Like I'm I I'm I was there in the late I
[37:27] Like I'm I I'm I was there in the late I mean I remember the late '80s.
[37:29] mean I remember the late '80s. We had camcorders like this. Do you know
[37:31] We had camcorders like this. Do you know what I mean? There was no
[37:33] what I mean? There was no closed caption. It's not how that
[37:35] closed caption. It's not how that worked. Okay. So here's another What So
[37:37] worked. Okay. So here's another What So what could we do to What could we do to
[37:40] what could we do to What could we do to What could we do to to try to defend the
[37:42] What could we do to to try to defend the decision? Here's another way to think of
[37:43] decision? Here's another way to think of the decision.
[37:44] the decision. What you might have said was you might
[37:47] What you might have said was you might say, "You know what? This statute is
[37:49] say, "You know what? This statute is from 1990. It was drafted by the Uniform
[37:51] from 1990. It was drafted by the Uniform Law Commission in the 1980s. Nobody in
[37:54] Law Commission in the 1980s. Nobody in that in this period would have thought a
[37:55] that in this period would have thought a video would have been acceptable. But
[37:57] video would have been acceptable. But today lots of people are recording all
[38:00] today lots of people are recording all the time.
[38:01] the time. They are going around making
[38:02] They are going around making documentaries,
[38:05] documentaries, right? They are recording what's
[38:07] right? They are recording what's happening and our statute seems out of
[38:10] happening and our statute seems out of date, but this is a big giant public
[38:12] date, but this is a big giant public policy question whether or not we're
[38:13] policy question whether or not we're comfortable facilitating, whether this
[38:15] comfortable facilitating, whether this is a form that we want to recognize,
[38:18] is a form that we want to recognize, whether we think the social costs of
[38:20] whether we think the social costs of enforcing these forms are worth it, and
[38:22] enforcing these forms are worth it, and that's too big for me as a judge. I'm
[38:23] that's too big for me as a judge. I'm kicking that to the legislature." That
[38:25] kicking that to the legislature." That would be a totally reasonable way to go,
[38:28] would be a totally reasonable way to go, right? That's fine. It's not what the
[38:29] right? That's fine. It's not what the court's saying.
[38:31] court's saying. The court's decision is all internal,
[38:33] The court's decision is all internal, right? It's all pretend. It's all well,
[38:35] right? It's all pretend. It's all well, the statute clearly answers the
[38:37] the statute clearly answers the question.
[38:39] question. Maybe not. Maybe it does, maybe it
[38:41] Maybe not. Maybe it does, maybe it doesn't. Maybe this is a different Maybe
[38:42] doesn't. Maybe this is a different Maybe what I'm describing is really what it's
[38:43] what I'm describing is really what it's about. Okay, so here's a joke that Dick
[38:45] about. Okay, so here's a joke that Dick Posner told me when I was clerking. So
[38:48] Posner told me when I was clerking. So it's like ever so slightly off color,
[38:50] it's like ever so slightly off color, but only ever so slightly, so it's okay.
[38:52] but only ever so slightly, so it's okay. So I Here we go, right? Okay. Guy's
[38:54] So I Here we go, right? Okay. Guy's walking down the street
[38:56] walking down the street and he comes to this storefront and
[38:58] and he comes to this storefront and there
[38:59] there flowers and art and pictures and
[39:01] flowers and art and pictures and beautiful things in the in the window.
[39:04] beautiful things in the in the window. And the thing says, you know, it's
[39:06] And the thing says, you know, it's Moshi's Mohel Services. A mohel is
[39:08] Moshi's Mohel Services. A mohel is someone who does the bris, who does the
[39:10] someone who does the bris, who does the circumcision in Jewish tradition.
[39:13] circumcision in Jewish tradition. So guy goes in the store and he says,
[39:14] So guy goes in the store and he says, "W- Why you're a mohel? Yes, you do the
[39:17] "W- Why you're a mohel? Yes, you do the brises, you do the circumcisions?"
[39:19] brises, you do the circumcisions?" That's right. "Well, why do you have
[39:20] That's right. "Well, why do you have flowers and pictures and all this stuff
[39:22] flowers and pictures and all this stuff in your in your window front?" He says,
[39:23] in your in your window front?" He says, "Well, what would you have me put
[39:24] "Well, what would you have me put there?"
[39:26] there?" Okay. What
[39:28] Okay. What And now you understand about Judge
[39:29] And now you understand about Judge Posner's
[39:30] Posner's view of opinions. So the
[39:33] view of opinions. So the What do you want the court to say?
[39:35] What do you want the court to say? Right? Like
[39:37] Right? Like this is a hard problem whether or not to
[39:39] this is a hard problem whether or not to recognize video wills, right? But I
[39:41] recognize video wills, right? But I don't think you're helping anybody by
[39:43] don't think you're helping anybody by doing this kind of this this mendacious
[39:46] doing this kind of this this mendacious statutory interpretation. That's not
[39:48] statutory interpretation. That's not even true on its own terms. It's not
[39:50] even true on its own terms. It's not even true uh on its own terms.
[39:53] even true uh on its own terms. So, okay. Well, if you do this word if
[39:55] So, okay. Well, if you do this word if you're going where I want to go, which
[39:56] you're going where I want to go, which is either you're going to say, "Look,
[39:57] is either you're going to say, "Look, this is a facilitative statute and uh I
[40:00] this is a facilitative statute and uh I could read it both ways. I don't see any
[40:02] could read it both ways. I don't see any policy reason not to let someone do
[40:04] policy reason not to let someone do this. So, I'm going to let them do this
[40:05] this. So, I'm going to let them do this till legislature stops me."
[40:07] till legislature stops me." Cuz it's a facilitative statute. I don't
[40:09] Cuz it's a facilitative statute. I don't see any Okay, that's what I would do if
[40:11] see any Okay, that's what I would do if I was the judge. You don't have to. You
[40:12] I was the judge. You don't have to. You can go the other way. You might want to
[40:14] can go the other way. You might want to say, "Well, I'm going to kick it to the
[40:15] say, "Well, I'm going to kick it to the legislature." Which brings me to the
[40:16] legislature." Which brings me to the last point, the last thing I want to
[40:18] last point, the last thing I want to say, which is "Well, that's fine."
[40:21] say, which is "Well, that's fine." Right? That's fine. We're going to kick
[40:22] Right? That's fine. We're going to kick it to the legislature.
[40:24] it to the legislature. But then without us, without you,
[40:26] But then without us, without you, without the learned profession doing law
[40:29] without the learned profession doing law reform, I think it's a hopelessly naive
[40:31] reform, I think it's a hopelessly naive understanding of the political
[40:32] understanding of the political structure.
[40:34] structure. Never in the history of the world has
[40:37] Never in the history of the world has anyone run for governor or state
[40:39] anyone run for governor or state legislature saying, "Vote for me because
[40:42] legislature saying, "Vote for me because I'm going to update the law of wills to
[40:44] I'm going to update the law of wills to account for new electronic stuff."
[40:47] account for new electronic stuff." "Put me in Congress because I'm going to
[40:49] "Put me in Congress because I'm going to fix revocation on divorce in ERISA."
[40:52] fix revocation on divorce in ERISA." "Vote for me because I've observed that
[40:54] "Vote for me because I've observed that the spousal forced share, which is part
[40:57] the spousal forced share, which is part of the default rules of the marriage
[40:58] of the default rules of the marriage form, no longer aligns with the rise of
[41:01] form, no longer aligns with the rise of non-probate."
[41:02] non-probate." Do you know who knows that? We.
[41:05] Do you know who knows that? We. The members of the learned profession
[41:07] The members of the learned profession who who help people with the forms and
[41:11] who who help people with the forms and walk them through. We see where the
[41:13] walk them through. We see where the problems are with the forms and when we
[41:15] problems are with the forms and when we can't draft around them.
[41:17] can't draft around them. Or we have people who don't know to
[41:20] Or we have people who don't know to draft around them.
[41:22] draft around them. This is not just about responsibility
[41:24] This is not just about responsibility for keeping the law updated, but it's
[41:25] for keeping the law updated, but it's also about legitimacy.
[41:28] also about legitimacy. Right? There's a horizontal equity point
[41:30] Right? There's a horizontal equity point here. And I don't just mean about wealth
[41:32] here. And I don't just mean about wealth or access to lawyers. So, here's a text
[41:36] or access to lawyers. So, here's a text message a student of mine got some years
[41:37] message a student of mine got some years ago. People you've seen this before.
[41:39] ago. People you've seen this before. Getting on some flights with dad, we
[41:41] Getting on some flights with dad, we realize we don't have a will.
[41:44] realize we don't have a will. If anything happens and it won't, mom
[41:46] If anything happens and it won't, mom lies.
[41:48] lies. Things bad things can and do happen.
[41:50] Things bad things can and do happen. Please be uh
[41:51] Please be uh and please be executor and divide all
[41:54] and please be executor and divide all things equal. Don't know if this would
[41:55] things equal. Don't know if this would count, but it's the best I can do.
[41:59] Love you and miss your face. So, there's
[42:02] Love you and miss your face. So, there's your authenticity cuz that's a mom. Only
[42:05] your authenticity cuz that's a mom. Only I miss your face.
[42:07] I miss your face. It's fine, right?
[42:09] It's fine, right? Uh
[42:10] Uh This one satisfies the statute.
[42:14] This one satisfies the statute. Because it's a writing.
[42:16] Because it's a writing. So, video, no go. This one does.
[42:21] So, video, no go. This one does. What is the principal distinction
[42:24] What is the principal distinction between those cases?
[42:26] between those cases? Right? That's just I'm going to claim
[42:28] Right? That's just I'm going to claim it's I want to argue it's an arbitrary
[42:30] it's I want to argue it's an arbitrary distinction. It's a horizontal
[42:32] distinction. It's a horizontal inequality. Like Like efforts at private
[42:36] inequality. Like Like efforts at private ordering are being treated unlike.
[42:39] ordering are being treated unlike. Right? It's an arbitrary way. And so, we
[42:42] Right? It's an arbitrary way. And so, we want to we want to fix that. So, that
[42:43] want to we want to fix that. So, that brings me to the last thing I want to
[42:45] brings me to the last thing I want to the last thing I want to talk about,
[42:47] the last thing I want to talk about, which is
[42:48] which is this rule of law. So, the you're all the
[42:51] this rule of law. So, the you're all the time you're going to hear at graduation
[42:53] time you're going to hear at graduation and these other last lecture all the
[42:54] and these other last lecture all the time you're going to hear about rule of
[42:55] time you're going to hear about rule of law is endangered and you have to
[42:57] law is endangered and you have to protect the constitutional order and on
[42:59] protect the constitutional order and on and on and on. It's fine. I mean I I
[43:01] and on and on. It's fine. I mean I I mean it's not wrong that we need to have
[43:03] mean it's not wrong that we need to have that. But that's that's just the
[43:05] that. But that's that's just the predicate
[43:07] predicate to what matters to people on a retail
[43:10] to what matters to people on a retail level. What matters to mom here is if
[43:14] level. What matters to mom here is if that plane crashes, he's the executor is
[43:16] that plane crashes, he's the executor is the executor and things are split
[43:18] the executor and things are split evenly.
[43:19] evenly. Right? That's what she's looking for.
[43:21] Right? That's what she's looking for. So, what do you do as I want to suggest
[43:23] So, what do you do as I want to suggest that the the further obligation is to
[43:29] that the the further obligation is to get these things fixed.
[43:31] get these things fixed. Right? There's another conception of
[43:33] Right? There's another conception of public interest public service and that
[43:36] public interest public service and that is the private law reform apparatus.
[43:39] is the private law reform apparatus. There's a lot of versions of it. There's
[43:40] There's a lot of versions of it. There's the American Law Institute and the
[43:42] the American Law Institute and the restatements. There's Uniform Law
[43:43] restatements. There's Uniform Law Commission and Uniform Acts. But there's
[43:46] Commission and Uniform Acts. But there's your local bar associations and the
[43:47] your local bar associations and the various committees that bring the
[43:49] various committees that bring the statutes to the legislature.
[43:51] statutes to the legislature. So, how do these little tweaks happen?
[43:53] So, how do these little tweaks happen? How does the partnership law of whatever
[43:55] How does the partnership law of whatever state, the LLC law, the divorce law, the
[43:58] state, the LLC law, the divorce law, the marriage law, the trust law, the wills
[44:00] marriage law, the trust law, the wills law, the contract law, how do these
[44:02] law, the contract law, how do these things get changed? It's ALI, it's ULC,
[44:04] things get changed? It's ALI, it's ULC, it's local bar groups going to the local
[44:07] it's local bar groups going to the local legislature saying, "We have this
[44:09] legislature saying, "We have this problem we need to fix it." Well, who
[44:10] problem we need to fix it." Well, who opposes? Nobody.
[44:12] opposes? Nobody. Why aren't we done yet? Nobody knows.
[44:14] Why aren't we done yet? Nobody knows. This is just what we need to make things
[44:15] This is just what we need to make things work. You see where I what the the the
[44:17] work. You see where I what the the the point I want to I'm trying to make here?
[44:20] point I want to I'm trying to make here? Okay. So, here's here's an example.
[44:23] Okay. So, here's here's an example. Right? Here's an example. So, people
[44:24] Right? Here's an example. So, people already know My father died a year and a
[44:26] already know My father died a year and a half ago. He lives in he lived in New
[44:27] half ago. He lives in he lived in New York.
[44:28] York. I'm the fiduciary of everything. I live
[44:30] I'm the fiduciary of everything. I live in Massachusetts. I have a brother. He
[44:32] in Massachusetts. I have a brother. He lives in Florida.
[44:34] lives in Florida. Okay, you understand? That's a conflicts
[44:36] Okay, you understand? That's a conflicts of law problem.
[44:38] of law problem. It's a conflicts of law problem. I got a
[44:39] It's a conflicts of law problem. I got a will and a trust from New York. I got an
[44:42] will and a trust from New York. I got an a fiduciary in Massachusetts. I got a
[44:44] a fiduciary in Massachusetts. I got a beneficiary in Florida. It's a conflicts
[44:47] beneficiary in Florida. It's a conflicts of law problem. Okay. It turns out that
[44:49] of law problem. Okay. It turns out that conflicts of law and trusts is is all
[44:52] conflicts of law and trusts is is all derived from the second restatement
[44:53] derived from the second restatement written by Austin Wakeman Scott, you
[44:55] written by Austin Wakeman Scott, you know, of
[44:56] know, of Harvard Law School.
[44:57] Harvard Law School. And none of it works anymore.
[45:00] And none of it works anymore. Right? None of it works anymore because
[45:01] Right? None of it works anymore because it's all based on uh testamentary trust.
[45:04] it's all based on uh testamentary trust. It's based on territorial contacts.
[45:08] It's based on territorial contacts. None of this works anymore.
[45:09] None of this works anymore. And nobody knows, right? Course continue
[45:12] And nobody knows, right? Course continue to follow the second restatement we're
[45:14] to follow the second restatement we're getting increasingly bizarre decisions.
[45:16] getting increasingly bizarre decisions. The American Law Institute and Uniform
[45:17] The American Law Institute and Uniform Law Commission are doing new projects to
[45:19] Law Commission are doing new projects to have a new restatement or new uniform
[45:20] have a new restatement or new uniform act. And they're completely rewritten to
[45:23] act. And they're completely rewritten to reflect the realities of on the ground
[45:26] reflect the realities of on the ground practice now. Right? So, I'm the chair
[45:28] practice now. Right? So, I'm the chair of the drafting committee for the
[45:29] of the drafting committee for the Uniform Act. Kim Roosevelt University of
[45:31] Uniform Act. Kim Roosevelt University of Pennsylvania is the reporter for the for
[45:33] Pennsylvania is the reporter for the for the restatement. Right? And so, we're
[45:35] the restatement. Right? And so, we're coordinating. So, why? What's the
[45:37] coordinating. So, why? What's the purpose of that? Well, because like it's
[45:39] purpose of that? Well, because like it's not so weird to see people die with
[45:42] not so weird to see people die with family in another state.
[45:44] family in another state. It's not so weird anymore. So, okay. Why
[45:47] It's not so weird anymore. So, okay. Why is that important to me? It's important
[45:49] is that important to me? It's important to me because I want to see that right.
[45:52] to me because I want to see that right. Want to see that right cuz that's a
[45:53] Want to see that right cuz that's a thing people are trying to do. And so,
[45:55] thing people are trying to do. And so, the claim, the thing I'm trying to
[45:57] the claim, the thing I'm trying to suggest I'm mindful that I got to keep
[45:59] suggest I'm mindful that I got to keep this
[46:00] this tight cuz people got to get to their
[46:01] tight cuz people got to get to their classes and if we can open the door to
[46:02] classes and if we can open the door to questions.
[46:03] questions. The claim I'm trying to make is that
[46:05] The claim I'm trying to make is that this matters to people on a retail
[46:07] this matters to people on a retail level. I'm not denying the preservation
[46:10] level. I'm not denying the preservation of the constitutional order and checks
[46:12] of the constitutional order and checks and balances and due process. That's
[46:15] and balances and due process. That's important, obviously. It's predicate.
[46:17] important, obviously. It's predicate. I'm suggesting that on a retail level
[46:21] I'm suggesting that on a retail level a as a equally if not more corrosive
[46:26] a as a equally if not more corrosive to a democratic republic rule of law is
[46:30] to a democratic republic rule of law is failure of private law to achieve the
[46:33] failure of private law to achieve the private ordering that people are
[46:35] private ordering that people are seeking. When they when someone thinks
[46:38] seeking. When they when someone thinks they've got a deal and they don't, they
[46:40] they've got a deal and they don't, they think they've got a business arrangement
[46:41] think they've got a business arrangement and they don't, they think there's
[46:43] and they don't, they think there's private sharing and they don't, they
[46:44] private sharing and they don't, they think they have a trust and they don't,
[46:46] think they have a trust and they don't, they think they've made a will so
[46:47] they think they've made a will so Christina Fontnew doesn't get one penny
[46:50] Christina Fontnew doesn't get one penny and they don't.
[46:51] and they don't. When that happens, it is corrosive to
[46:55] When that happens, it is corrosive to rule of law as much so as checks and
[46:58] rule of law as much so as checks and balances whatever else cuz that's not
[47:00] balances whatever else cuz that's not what people are watching. People are
[47:02] what people are watching. People are trying to make payroll, they're trying
[47:03] trying to make payroll, they're trying to make they're trying to buy groceries,
[47:05] to make they're trying to buy groceries, they're trying to make rent. And when
[47:07] they're trying to make rent. And when private law fails them, the law has
[47:10] private law fails them, the law has failed them.
[47:11] failed them. So, your role is a as a lawyer to these
[47:14] So, your role is a as a lawyer to these clients is to draft it right. Understand
[47:17] clients is to draft it right. Understand what they're doing and make the forms
[47:19] what they're doing and make the forms right. And as the lawyer in the
[47:21] right. And as the lawyer in the litigation, show the court the way. And
[47:23] litigation, show the court the way. And as the judge, find the way. And as the
[47:25] as the judge, find the way. And as the legislator to fix it. And as the lawyer
[47:28] legislator to fix it. And as the lawyer to lobby. And if you do this and you
[47:31] to lobby. And if you do this and you choose as a path private law and that
[47:33] choose as a path private law and that kind of practice, understand that you
[47:36] kind of practice, understand that you are as if not more important to the
[47:39] are as if not more important to the preservation of rule of law as anybody
[47:42] preservation of rule of law as anybody else.
[47:44] else. I was going to say something insulting
[47:45] I was going to say something insulting of a colleague. We're not going to do
[47:46] of a colleague. We're not going to do that. It's being recorded. As anything
[47:49] that. It's being recorded. As anything else
[47:50] else as anything I'm not going to do it.
[47:52] as anything I'm not going to do it. Anything so hard. As anything else
[47:56] Anything so hard. As anything else as any It is absolutely is just as
[47:59] as any It is absolutely is just as essential to preservation of rule of
[48:01] essential to preservation of rule of law. Okay, so I know people got 1:30. I
[48:03] law. Okay, so I know people got 1:30. I can stay and talk if people want to ask
[48:04] can stay and talk if people want to ask questions or whatever, but I appreciate
[48:06] questions or whatever, but I appreciate you giving me this last chance and I
[48:07] you giving me this last chance and I thank you for your patience and the
[48:09] thank you for your patience and the indulgence.
[48:10] indulgence. >> [applause]
[48:29] >> If anybody wants to ask Professor Oh,
[48:32] >> If anybody wants to ask Professor Oh, raise your hand. I'll bring the mic.
[48:33] raise your hand. I'll bring the mic. Perfect.
[48:38] Oh, in this in this conversation what
[48:39] Oh, in this in this conversation what has changed in 10 years ago?
[48:41] has changed in 10 years ago? Um so, relative to the So, so I I I
[48:44] Um so, relative to the So, so I I I think there are
[48:45] think there are two or three things that
[48:47] two or three things that that are different. So, one, when I uh
[48:50] that are different. So, one, when I uh 10 years ago, I told the story of how I
[48:52] 10 years ago, I told the story of how I got into trusts and estates.
[48:54] got into trusts and estates. And including like drafting my mother's
[48:56] And including like drafting my mother's will, which I'd never to talked about
[48:58] will, which I'd never to talked about that publicly before. My mother died
[49:00] that publicly before. My mother died when I was 17 and so the reason I got
[49:02] when I was 17 and so the reason I got into trusts and estates. So, that story
[49:03] into trusts and estates. So, that story is out there. I'm happy to repeat it
[49:05] is out there. I'm happy to repeat it again if people want to hear it, but
[49:06] again if people want to hear it, but like that was one a piece.
[49:08] like that was one a piece. The other was um I uh
[49:11] The other was um I uh um
[49:12] um I did not feel I did not have the sense
[49:14] I did not feel I did not have the sense 10 years ago of um
[49:18] 10 years ago of um uh
[49:20] uh of the eclipsing of the importance of
[49:22] of the eclipsing of the importance of private law in quite the same way I'm
[49:24] private law in quite the same way I'm feeling it now.
[49:26] feeling it now. Right? So, as a turn And I also don't
[49:28] Right? So, as a turn And I also don't think that I understood
[49:31] think that I understood uh I didn't have this feel for um
[49:34] uh I didn't have this feel for um the role of the lawyer in these three
[49:36] the role of the lawyer in these three pieces. I mean, I talked about it, but I
[49:37] pieces. I mean, I talked about it, but I didn't have it organized in that way.
[49:38] didn't have it organized in that way. So, the big difference is one is this
[49:40] So, the big difference is one is this this eclipsing and the other is I didn't
[49:42] this eclipsing and the other is I didn't like it's very it's customary in these
[49:43] like it's very it's customary in these talks to tell your own story. I didn't
[49:45] talks to tell your own story. I didn't do that here. I'm happy to talk now if
[49:47] do that here. I'm happy to talk now if you want to hear it, do it again, but
[49:48] you want to hear it, do it again, but that those are the that's the quick
[49:50] that those are the that's the quick answer.
[49:55] Does anyone other anyone else have any
[49:57] Does anyone other anyone else have any other questions for Professor Sitkoff?
[49:59] other questions for Professor Sitkoff? You're running class.
[50:05] Great. Thank you so much for that. We
[50:06] Great. Thank you so much for that. We truly appreciate it.
