Person:

Mann, Bruce

This Article makes a small effort toward an alternate explanation of formalism in wills adjudication. It is prompted by an odd and rather perverse line of cases from Texas. The cases are interesting not for their content or logic, but because they provide a rare opportunity to observe the creation, elaboration, and entrenchment of a new formality for the proper execution of wills—one that treats the use and misuse of self-proving affidavits. That the cases are from Texas is incidental. Their value lies in their suggestion that formalism in wills adjudication may persist because of the structure of the probate process and its historical position within the legal system. As an explanation of formalism, this Article can only be partial, but it may suggest a useful way of looking at an old and intractable problem.

The articles in this issue are drawn from the papers delivered at the conference “Ab Initio: Law in Early America,” held in Philadelphia on June 16–17, 2010—the first conference in nearly fifteen years to focus on law in early America. It was sponsored by the Penn Legal History Consortium, the McNeil Center for Early American Studies, the American Society for Legal History, the University of Michigan Law School, and the University of Minnesota Law School, under the direction of Sarah Barringer Gordon, Martha S. Jones, William J. Novak, Daniel K. Richter, Richard J. Ross, and Barbara Y. Welke. For two days, fifteen mostly younger scholars presented their research to a packed house, with formal comments by senior scholars and vigorous discussion with the audience. That earlier conference, “The Many Legalities of Early America,” which convened in Williamsburg in 1996, had illustrated the shift from what was once trumpeted as the “new” legal history to something that never acquired a name, perhaps because it was less self-conscious in its methodology. “Ab Initio” offered the opportunity to ask how the field has changed in the years since.