Thursday, July 14, 2022

Critique of the Restatements of Trust

Naomi Cahn (University of Virginia School of Law), Deborah S. Gordon (Drexel University Thomas R. Kline School of Law), and Allison Anna Tait (University of Richmond School of Law) have recently posted on SSRN their article The Restatements of Trust — Revisited, The ALI at 100: Essays on Its Centennial (Andrew S. Gold & Robert W. Gordon, eds., 2023 forthcoming) Virginia Public Law and Legal Theory Research Paper No. 2022-45. Here is the abstract of their article:

As part of a volume commemorating the American Law Institute on its centennial, this Essay reflects on the Restatement of Trusts, which was one of the first of the ALI’s projects. The Restatement of Trusts, along with its two successors, has profoundly influenced both the common law and statutes in the field. As this chapter traces, the three trust Restatements reflect the development of the “modern trust,” whether private or charitable, which holds a variety of financial interests just as they reflect economic, social, and cultural changes that have occurred over the last century.

After providing a brief history of the trust Restatements, this chapter then turns to trace three throughlines: first, it threads together how the three Restatements address the question of shifting social and legal norms, including how diverse populations across the wealth spectrum engage with wealth transfer through trusts; second, the chapter focuses on the “public policy” provision in each of the three trust Restatements and tracks that provision’s focus on gender roles, marriage, religion, and “detriment to community”; third, it traces provisions relating to trustees’ fiduciary responsibilities to beneficiaries, including decisions about distributions and investments. As this chapter celebrates the positive impact of the Restatements of Trusts on the development of trust law, the chapter also provides suggestions for a Restatement (Fourth) of Trusts that, as has been true of the previous Restatements, would reflect contemporary developments in trust law itself and in society. In so doing, this chapter also steps back to provide a tempered critique of the role of trusts in perpetuating inequality, albeit with an understanding that the goal of the Restatement is not to transform the law but rather to reflect its development.

https://lawprofessors.typepad.com/trusts_estates_prof/2022/07/critique-of-the-restatements-of-trust.html

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