Family Law Book Review 126 Harv. L. Rev. 2289

All Unhappy Families: Tales of Old Age, Rational Actors, and the Disordered Life

How family members and legal actors make sense of the conflicts of eldercare


Professor Hendrik Hartog revels in mess. Domestic messes of every variety fill the pages of Someday All This Will Be Yours: A History of Inheritance and Old Age. Hartog serves as a brilliant navigator of this complex and potentially befuddling cacophony of family scenes and conflicts. He guides us through families’ domestic and legal battles, bringing family members’ daily lives and experiences into the center of inheritance law and the legal history of the family.

Someday All This Will Be Yours is about the ways that older people, terrified of being left alone in their final years of life, used promises of future wealth transfers to ensure that younger members of their households would care for them in their old age. It is about how those promises shaped family arrangements, domestic duties, and, particularly, the provision of end-of-life care. And it is about what happened when, unsurprisingly, some promises of future riches went unfulfilled and some disappointed promisees turned to the courts for redress. Ultimately, Someday All This Will Be Yours is about the blurry and mutually constitutive spheres of family life and family law, viewed through the prism of New Jersey families stumbling through the pitfalls of old age and complex familial relationships.

Hartog is a master storyteller, and the core of Someday All This Will Be Yours is stories: stories of deals made between hopeful (or, sometimes, desperate) relatives, stories of grueling illness and nursing care, and stories of despair at promises and expectations unfulfilled. These tales of anticipation and disappointment are relentlessly messy – unruly collections of people living together as households, physical spaces falling into disrepair, and elderly bodies confronting the impending end of life with all the accompanying bodily decay.

The pages of Someday All This Will Be Yours brim with metaphorical and literal blood: not only hard-to-characterize configurations of people and conflicting legal doctrines, but also emotionally devastating encounters with mental breakdowns, the tortured administration of enemas, caretakers “smeared up” with fecal matter (p. 255), old people with “suppurating wounds” (p. 157), and one man with swollen testicles “as big as a small muskmelon” and “as black as ink” (p. 262).

Amidst countervailing forces of familial disorder and legal tidiness lies the central drama of Someday All This Will Be Yours: how family members and legal actors made sense of the disconcerting conflicts and oozing bodily fluids that accompanied familial decisions around what we would now call eldercare. Drawing on a treasure trove of carefully mined sources, Hartog again and again pulls all the familial junk back out from under the law’s rug. He unapologetically brings families’ struggles back into plain view where he can ponder the significance of the disordered life, as well as the law’s valiant, but ultimately futile, attempts to impose a patina of order upon familial states of disorder.

In the end, though, Someday All This Will Be Yours forces us to reckon with the fact that order and disorder are themselves hard to separate. The rug cannot be separated from all that it is trying to hide. Despite the rigorous efforts of judges, the law too is a messy business.

Ultimately, Hartog’s stories reveal just how hard it is to restore order convincingly to either the family or the law. While judges, desperate to dispose of the claims of feuding relatives, often presumed a rationality to the decisions made by parents and children, scraps of evidence almost inevitably hint at the possibility of other motivations. Time and again, Hartog’s stories subtly suggest that, although family members might bargain for what they need, it is hard to transform all familial relationships into purely rational transactions based on costs and benefits.

Yet, the impulse toward order must be a deep one. And even as Hartog reveals law and family life as inextricably intertwined social spheres, forms of thematic order emerge in his own narrative. Moreover, even as Hartog forces us to recognize the disorderly heart of the law, he seems drawn to his own sense of order based on family members’ roles as rational actors engaged in calculated deals. Hartog’s own narrative, then, often seems to understand family arrangements as the reasoned outcomes of bargained-for goods, albeit with calculations made in suboptimal circumstances.

But this order too almost begs to be unmasked. In particular, these tales might force us to reckon with the role of far less rational emotions – particularly, love – in guiding the familial structures crafted by aging parents and their grown children. Indeed, Someday All This Will Be Yours subtly expresses a profound ambivalence about the role of love and altruism in familial negotiations. Hartog seems unable to banish love fully from the familial realm and, simultaneously, unable to grant it significant explanatory power.

So too the law. Just as Hartog occasionally concedes that a parent or child might have acted not out of rational self-interest but rather out of emotional connection, the law cannot entirely figure out what to do with love’s messy impact on the otherwise rational actors that make up the legal family. In Someday All This Will Be Yours, then, narrator and subjects alike seem deeply ambivalent about whether family members act out of their own self-interest or out of commitments that might be deeply out of sync with their own well-being.

These tensions are not simply an artifact of history. The ambivalence that weaves through Someday All This Will Be Yours lurks deep within contemporary family law, as well. In fact, through the lens of nineteenth- and early-twentieth-century New Jersey inheritance law, Hartog offers us a rich view, more generally, of the multifaceted, fraught relationship between the messy, mutually constitutive arenas of the family and the law. In this respect, Someday All This Will Be Yours offers not only a history of a narrow set of familial practices in one period of New Jersey legal history, but also the critical antecedents of the central themes and struggles of family law today as judges continue to confront the order and disorder, and the rationality and irrationality, that burn alongside each other at the core of the legal family.