Article by David Horton
Commentators once thought that contracts were the product of natural selection. Supposedly, over time, drafters learned to keep useful clauses and delete the others. More recently, though, scholars have challenged this assumption by demonstrating that contractual provisions and gaps can be resistant to change, or “sticky.”
This symposium Article adds to this literature by examining the puzzling absence of choice-of-law clauses in heir hunting contracts. Because states disagree about whether heir hunting is legal and most heir hunters hail from permissive jurisdictions, one would expect heir hunters to select the law of their domicile. However, this Article's review of 558 contracts reveals that heir hunters rarely use choice-of-law provisions. This Article explores potential explanations for this discovery and analyzes how they inform the debate over sticky terms.
About the Author
David Horton. Martin Luther King, Jr. Professor of Law, University of California, Davis, School of Law. Thanks to John Coyle, Reid Weisbord, and participants at the Tulane Law Review and American College of Trusts and Estates Academic Symposium for helpful comments and to Joe Harrison and Cooper Michael for excellent research assistance.
Citation
97 Tul. L. Rev. 847