Trust Law: Private Ordering and the Branching of American Trust Law

Abstract

In this chapter, prepared for The Oxford Handbook of New Private Law, we identify the principal ways in which the common law trust has been used as an instrument of private ordering in American practice. We argue that in both law and function, contemporary American trust law has divided into distinct branches. In our taxonomy, one branch involves donative trusts and the other commercial trusts. The donative branch divides further to include three separate sub-branches for revocable and irrevocable private trusts plus charitable trusts. We explain the logic of this branching in both practical function and doctrinal form.

Keywords: private law, new private law, trust law, private ordering, donative trust, business trust, commercial trust, irrevocable trust, donative trust, freedom of contract, freedom of disposition, fiduciary

JEL Classification: K11, K22, K36