The Conservatorship Model: A Modification

Reform-minded probate lawyers have discussed the idea of ante-mortem probate for many years. Yet, owing to several seemingly unavoidable defects, it has never attracted widespread support and only recently has been implemented anywhere in the United States. In his article, Living Probate: The Conservatorship Model, Professor John Langbein has eliminated many of those defects and has made the idea much more feasible. In doing so, he has contributed to the development of simple, convenient, and efficient systems of probate. However, his proposal introduces new flaws that threaten the practical working of his procedural model. Basically, Langbein proposes that living probate be a non-adversary proceeding rather than a lawsuit between the testator and his heirs. Several problems that Langbein finds disturbing attend the adversarial proceedings of earlier attempts at ante-mortem probate. Among these are the potential disruption of family harmony, various disadvantages to the heirs apparent, and the absence of constraints against testators\u27 overuse. To avoid these problems, Langbein advocates a court-appointed guardian ad litem who would represent all persons whose eventual property interests might be adversely affected by a determination that a testator had testamentary capacity to write his will and did so without undue influence. Specifically, Langbein seeks to prevent open family strife in will contests through an imaginative use of the familiar device of the guardian ad litem. Under Langbein\u27s proposal, although the real contestants have the right to appear in the proceedings, they can also assert their interests anonymously by revealing their objections to the guardian ad litem. Anonymity reduces the disinclination many feel to offer evidence of incapacity even when the will ought to be contested. Moreover, the conservatorship model accommodates all the relevant interests, including those of potential heirs who are unborn or otherwise unascertained at the time of the proceeding. Finally, by requiring that counsel represent the testator and by shifting the costs of the guardian ad litem to the testator, the Langbein proposal discourages excessive use of the ante-mortem procedure. Only testators who genuinely need living probate—those whose wills are likely to be extortionately challenged because of the testator\u27s advanced age or disabled condition—would wish to bear the predictably high costs of inhibiting post-mortem contests. These advantages are undeniably real, but they are obtained at a great price: under any evaluation of his proposal, features of Langbein\u27s procedure impose costs. Professor Langbein erroneously assumes that these costs are unavoidable under any system of living probate. I shall argue that these features are not essential and that they may be eliminated without sacrificing the advantages of his model. Providing testators alternative versions of his procedure would achieve substantially the same benefits while making living probate attractive to more testators than Langbein\u27s model is likely to. Specifically, allowing testators to choose a nonbinding version of the conservatorship model would more completely suit the differing needs of testators, thereby mitigating the costs of living probate while preserving its advantages. I should emphasize that Langbein and I agree on the basic proposition that some living-probate procedure is needed. Furthermore, his discussion convincingly establishes the case for a non-adversary approach. While we disagree on some material characteristics of such a procedure, it is worth reiterating that we share the view that testators ought to be able to avoid post-mortem litigation

The Conservatorship Model: A Modification

Reform-minded probate lawyers have discussed the idea of ante-mortem probate for many years. Yet, owing to several seemingly unavoidable defects, it has never attracted widespread support and only recently has been implemented anywhere in the United States. In his article, Living Probate: The Conservatorship Model, Professor John Langbein has eliminated many of those defects and has made the idea much more feasible. In doing so, he has contributed to the development of simple, convenient, and efficient systems of probate. However, his proposal introduces new flaws that threaten the practical working of his procedural model. Basically, Langbein proposes that living probate be a non-adversary proceeding rather than a lawsuit between the testator and his heirs. Several problems that Langbein finds disturbing attend the adversarial proceedings of earlier attempts at ante-mortem probate. Among these are the potential disruption of family harmony, various disadvantages to the heirs apparent, and the absence of constraints against testators\u27 overuse. To avoid these problems, Langbein advocates a court-appointed guardian ad litem who would represent all persons whose eventual property interests might be adversely affected by a determination that a testator had testamentary capacity to write his will and did so without undue influence. Specifically, Langbein seeks to prevent open family strife in will contests through an imaginative use of the familiar device of the guardian ad litem. Under Langbein\u27s proposal, although the real contestants have the right to appear in the proceedings, they can also assert their interests anonymously by revealing their objections to the guardian ad litem. Anonymity reduces the disinclination many feel to offer evidence of incapacity even when the will ought to be contested. Moreover, the conservatorship model accommodates all the relevant interests, including those of potential heirs who are unborn or otherwise unascertained at the time of the proceeding. Finally, by requiring that counsel represent the testator and by shifting the costs of the guardian ad litem to the testator, the Langbein proposal discourages excessive use of the ante-mortem procedure. Only testators who genuinely need living probate—those whose wills are likely to be extortionately challenged because of the testator\u27s advanced age or disabled condition—would wish to bear the predictably high costs of inhibiting post-mortem contests. These advantages are undeniably real, but they are obtained at a great price: under any evaluation of his proposal, features of Langbein\u27s procedure impose costs. Professor Langbein erroneously assumes that these costs are unavoidable under any system of living probate. I shall argue that these features are not essential and that they may be eliminated without sacrificing the advantages of his model. Providing testators alternative versions of his procedure would achieve substantially the same benefits while making living probate attractive to more testators than Langbein\u27s model is likely to. Specifically, allowing testators to choose a nonbinding version of the conservatorship model would more completely suit the differing needs of testators, thereby mitigating the costs of living probate while preserving its advantages. I should emphasize that Langbein and I agree on the basic proposition that some living-probate procedure is needed. Furthermore, his discussion convincingly establishes the case for a non-adversary approach. While we disagree on some material characteristics of such a procedure, it is worth reiterating that we share the view that testators ought to be able to avoid post-mortem litigation

The American Advantage: The Value of Inefficient Litigation

In a recent article, The German Advantage in Civil Procedure,1 Professor John Langbein claims that the German system of civil litigation is superior to the American; in an earlier article he makes a parallel claim about German criminal procedure.2 Roughly, Professor Langbein argues that by comparison to the German process, American litigation is overly complex, expensive, slow, and unpredictable - in short, inefficient.3 Professor Langbein is not the first and will not be the last to criticize American legal institutions in these terms, but he expresses this criticism particularly well: he is concise and concrete, he describes American practice by reference to a specific and important foil, and he has a clear and articulate point of view. Professor Langbein is also quite convincing; some may disagree but I, for one, have no basis to dispute his claims, and no impulse to try. The point of this paper is different: to question the assumption that efficiency in adjudication is a virtue. This seems, at first blush, an odd argument: not merely that efficiency is a goal that must at times be compromised to accommodate other goals, but rather that in some contexts efficiency (as commonly measured) may be incompatible with other values, and that for some purposes inefficiency may be desirable in itself. Perhaps this strange position deserves a more committed advocate. I advance a number of arguments against efficiency in litigation, but I am not entirely convinced by them; I only neglect the opposing arguments because they are more obvious and better stated by others. My point is more modest: that efficiency is a poor measure of the quality of a procedural system, one way or the other. The structure of this article is simple. I begin with a short (and perhaps somewhat idealized) description of the comparative advantages of the German system of litigation, drawing heavily on Langbein\u27s work, and in that context explain what I mean when I say that the American system is inefficient. I then turn briefly to various defenses of our system, and distinguish them from the present line of argument. Last, and most important, I offer a number of reasons to doubt the value of efficiency in a legal system, and to favor inefficient procedures instead

Resonant-state expansion for open optical systems: Generalization to magnetic, chiral, and bi-anisotropic materials

The resonant-state expansion, a recently developed powerful method in electrodynamics, is generalized here for open optical systems containing magnetic, chiral, or bi-anisotropic materials. It is shown that the key matrix eigenvalue equation of the method remains the same, but the matrix elements of the perturbation now contain variations of the permittivity, permeability, and bi-anisotropy tensors. A general normalization of resonant states in terms of the electric and magnetic fields is presented.Comment: 4 page

Wills Formalities in the Twenty-First Century

Individuals have executed wills the same way for centuries. But over time, traditional requirements have relaxed. This Article makes two principal claims, both of which disrupt fundamental assumptions about the purposes and functions of wills formalities. First, the traditional requirements that a will must be in writing and signed by the testator in the presence of (or acknowledged before) witnesses have never adequately served their stated purposes. For that reason, strict compliance with formalities cannot be justified by their cautionary, protective, evidentiary, and channeling functions. Reducing or eliminating most of the long-standing requirements for execution of a will is consistent with the true purpose of wills formalities--authenticating a document as the one executed by the testator with the intention of having it serve as the binding directive for the post-mortem distribution of the testator\u27s property. This Article\u27s account has important implications for the way that legal scholars, lawmakers, and lawyers think about wills. The Article\u27s second claim is that the substantive standard of the harmless error rule--that the decedent intended a particular document to be the decedent\u27s last will and testament--should be the only threshold that must be satisfied for a court to admit the document to probate. Widespread adoption of such an intent-based rule is preferable to one that is overly formalistic. Current formalism leads both to false positives (i.e., grant of probate to a document not intended by the decedent as the decedent\u27s will) and false negatives (i.e., denial of probate of a document clearly intended by the decedent as the decedent\u27s will). An intent-based rule would make more likely the valid execution of wills by poor and middle-income individuals who typically cannot or do not consult attorneys. An intent-based standard also sets the stage for widespread recognition of electronic wills, if states are able to address concerns about authentication, fraud, and safekeeping of electronic documents. Technological developments could make estate planning in the twenty-first century more accessible than ever before to people of all wealth and income levels if the legal profession is prepared to embrace new ways of executing wills

Civil Justice Systems in Europe and the United States

Professor Kötz delivered the inaugural Herbert L. Bernstein Memorial Lecture in Comparative Law in 2002 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In order to highlight the similarities and differences in legal regimes between Europe and the United States, Professor Hein Kötz analyzes the German and American civil legal systems and, to a minor extent, the British civil legal system. Specifically, Kötz focuses on one of the distinguishing features of the American legal system, the civil jury, and its impact on the structure and flow of the civil court case. By targeting this feature of the American system, he highlights the differences in values held by each society, the impact these differing values have in altering fairly similar legal objectives, and the mechanisms that are created to fulfill these objectives, as well as the consequences of such mechanisms. Kötz shows how the American preference for a jury over a judge as the trier of fact for a civil trial greatly impacts a number of aspects of the trial, including discovery, the role of the judge, and the approach governing the introduction of expert testimony. This comparison puts into relief not only the differences between the two systems, but also the benefits and drawbacks of each. These differences are highlighted particularly well through the use of examples of solutions found within the legal systems to deal with unique problems – such as the American class-action suit