720. John C.P. Goldberg & Robert H. Sitkoff, Torts and Estates: Remedying Wrongful Interference with Inheritance, 07/2012; forthcoming in Stanford Law Review, Vol. 65, 2013.
Abstract: This paper examines the nature, origin, and policy soundness of the tort of interference with inheritance. We conclude that the tort should be repudiated because it is conceptually and practically un-sound. Endorsed by the Restatement (Second) of Torts and recognized by the U.S. Supreme Court in a recent decision, the tort has been adopted by the courts of nearly half the states. But the tort is deeply problematic from the perspectives of both inheritance law and tort law. It undermines the core principle of freedom of disposition that undergirds all of American inheritance law. It invites circumvention of principled policies encoded in the specialized rules of procedure applicable in inheritance disputes. In many cases, it has displaced venerable and better fitting causes of action for equitable relief. It has a derivative structure that violates the settled principle that torts identify and vindicate rights personal to the plaintiff. We conclude that the emergence of the interference-with-inheritance tort is symptomatic of two related and unhealthy tendencies in modern legal thought: the forgetting of restitution and equitable remedies, and the treatment of tort as a shapeless perversion of equity to provide compensation for, or deterrence of, harmful antisocial conduct.