The Advisory Function of Law
56 Pages Posted: 4 Nov 2015
Date Written: November 3, 2015
The immense volume of law in the United States has produced a legal system that is complex, pervasive, and, for many individuals and firms, difficult 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 tasks now governed by a complex legal and regulatory framework. In response, this Essay proposes a new theory of law reform — the advisory function of law — as a minimally invasive approach for mitigating the problems of legal error and legal ignorance. Under the advisory function, the law would seek to (1) identify transactions 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 form of guidance through innovative channels of legal information, bridge rules, and technology-enhanced processes 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, this Essay presents a detailed exposition of this theory through three illustrations in the wealth transfer law context: (1) processes facilitating proper will execution; (2) processes facilitating proper completion and timely updating of non-probate death beneficiary designation forms administered by financial intermediaries (including retirement account custodians and life insurance providers); and (3) bridge rules encouraging the drafting of trusts that properly and affirmatively articulate the settlor’s material purposes. Applying the advisory function theory, the essay also identifies features of wealth transfer law that not only fail to prevent legal error but invite it.
Keywords: advisory function, information deficit, choice architecture, error prevention, wealth transfer, trusts, wills, non-probate
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