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90 Tul. L. Rev. 129 (2015-2016)

handle is hein.journals/tulr90 and id is 149 raw text is: ESSAY The Advisory Function of Law Reid Kress Weisbord* The immense volume of law in the United States has produced a legal system that is complex, pervasive, and for many individuals and finMs, chificult to navigate. Despite a chorus of critics calling for the simplification of law and reduction of regulation, political inertia has proven this aspect of our legal system highly resistant to reform. It is therefore common for individuals to lack sufficient legal knowledge to accomplish the countless ordinary 4uks now governed by a complex legal and regulatory fiamework .I response, this Essayproposes a new theory of law refom--4he advisory function of law-as a minimally invasive approach for mitigating the problems oflegal enorandlegalignorance. Under the advisory function, the law would seek to (1)identify tnsactions and activities in which legal errors and information deficits frequently cause harm to the actor himself or third parties and (2) supply advice in the fom of guidance through innovative channels of legal information, bridge rules, and technology-enbancedprocesses to facilitate the accomplishment of legally complex tasks. This approach is minimally invasive because it would not require the actor to acquire intricate legal knowledge or complete mastery of the law, and it would not generally displace the underlying substantive law As a blueprint for applying the advisory function in a variety of legal settings, tivs Essay will present a detailed exposition of this theory in the context of wealth transfer law I. INTRODUCTION ............................................................................. 130 II. THE ADVISORY FUNCTION OF LAW .............................................. 135 A. Compensating for LegalInfomation Deficits ................. 143 B. Curing Legal Information Deficits .................................... 144 III. WEALTH TRANSFER LAW: A LABORATORY FOR DEVELOPING THE ADVISORY FUNCTION OF LAW ........................ 147 IV. ERROR-RESISTANT PROCESSES .................................................... 156 A. Statutory Form Affidavits for Self-Proving Wills ............. 158 B. Statutory Form Wills .......................................................... 162 C StatutoryDeath BeneficiaryForms .............................. 164 IV HEIGHTENED SPECIFICATION AND SYNTHESIS OF LAW: AN ILLUSTRATION FROM TRUST LAW ................................................ 170 A. Omission ofMatenal Trust Purposes ................................ 173 B. Early Termination of Trusts ............................................... 175 C No-Fault Trustee Removal ................................................. 179 * © 2015 Reid Kress Weisbord. Vice Dean, Professor of Law, and Judge Norma L. Shapiro Scholar at Rutgers Law School. The author would like to thank the following scholars for helpful feedback on prior drafts of this Article: Naomi Cahn, Gary Francione, Suart Green, David Horton, George Thomas, and Stephen Urice.

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