Scholarship brings variety. Complex constructions that drag readers through thickets; subtle and sublime ones suggesting some knowing inner ring; irony with head feints that leave the reader thunderstruck when the rug is pulled – each form can delight, with the best scholarship inviting others into the mind (if not heart) of its author. Reading this sort of piece can feel a bit like a temporary possession, every bit as exhausting as its writing may have been.
Richard Ausness pulls no such punches. In These Are a Few of My Least Favorite Things, he squares up unafraid to take down assorted aspects of the 1990 Revised Uniform Probate Code with an approach that is rapid but measured and always direct. There is much to be said for writing that inspires readers to see brand new things. But there is also something thrilling about seeing the same old things anew.
Five provisions of the ’90 UPC draw Prof. Ausness’s ire: Representation, Harmless Error, Revival, Anti-Lapse, and Ademption by Extinction. As he acknowledges, not one of them is new, and he intimates (but sidesteps) the heavy theoretic grounds upon which all of them could have been engaged (some quite recently and brilliantly), and I often found myself disagreeing with his assertions or, at least, wanting more. But I kept coming back. Per capita at each generation is “overly complex“; harmless error, “well-intentioned but problematic”; ’90 UPC treatment of revival is “busy and cluttered,” anti-lapse, “convoluted,” ademption, “worse than” either the intent or identity theories it contains. Whether or not one agrees with his ultimate conclusions, Prof. Ausness’s logic is clear, and the efficiency with which he sets up his issues, hits their historical and modern play, then takes them down by turns is refreshing. This piece does not ask its readers to follow the author’s lead into brand new theory or deep design. It does, however, demand a second look at assorted UPC solutions that were presumably perceived on adoption and since as superior to those they replaced. There is a courage here, not least in taking on the UPC by arguing for its own prior version. Professor Ausness is unafraid to kill off newer and cleverer darlings, and to argue for the retreat to principles of about 50 years past if he perceives a better product would result.
The article rhythmically moves through issue, principle, traditional approach, ’90 UPC treatment, critique. In this way, Prof. Ausness creates an accessible, predictable structure, nicely frames trajectories, and situates the mood about formalism that must have informed the entire ’90 project. As each topic was introduced, I would begin by fretting that I would not learn much new other than how the author “felt.” That I was wrong each time made me reconsider principles that I thought I’d long internalized, agreed with, and even defended, and opened my mind to how a student might confront the issue for the first time. Moreover, I acknowledged that doctrinal approaches I may have considered as my own favorites – horizontal equality, or the switchback presumptions around revocation and revival – were possibly valued more for sudoku-ish fun in game mastery than for how they encouraged or discouraged litigation, affected the efficient probate of estates, or effected a decedent’s last wishes.
That may be what I most admired about Prof. Ausness’s retelling of old stories. He moved past the merely shiny, cozy, or cute – the bright copper kettles, the whiskers or mittens – in favor of that which, to him, most mattered: does the application of X principle generate an outcome that the decedent likely wanted, and at what probable cost? Stern as it may be, he is ill-inclined, for example, to rescue would-be testators from their own failure to achieve what he sees as easy tasks (e.g., executing a statutorily compliant will). I have admittedly argued long and often for the relaxed formalism that doctrines such as “harmless error” – one of those ’90 UPC darlings – allows. But with concise matter-of-factness, Prof. Ausness reminds us that what smart drafters of a uniform act might believe about the implications of testators’ actions (e.g., when they revoke a later will, or mortgage bequeathed property) might be far less obvious than the drafters convinced themselves that they were. He also reminds us that all choices come at a cost.
My Least Favorite Things holds it all there within reach, recounting principled tradeoffs between values that endure: cost and intent, efficiency and justice, games “worth candles” and those less so, marginal improvements for individuals and collective gains for groups. It also sends a more gentle but powerful reminder: things little favored, such as dog bites or bee stings, can be avoided by steering clear of biting dogs or stinging bees. If so, perhaps the best way to avoid convoluted, intent-defeating, tricky or expensive principles that may be found in majority rules, model codes or uniform acts is to draft around them in the first instance, wherever possible, with all of the clarity of intent and purpose, conscientiousness and care, that the situation demands.
The simplest solutions may be those that matter most.
