American Trust Law in a Chinese Mirror

51 Pages Posted: 10 Jun 2012

See all articles by Frances H. Foster

Frances H. Foster

Washington University in St. Louis - School of Law

Date Written: 2010


Comparative law scholars have produced a vast literature documenting and analyzing legal transplants. Thus far, however, comparative law scholars have focused principally on legal transplants’ impact on the “recipient” country. In so doing, those scholars have missed an equally important phenomenon — the impact of the process on the “donor” country. This article seeks to fill this gap in the literature. It argues that legal transplants can provide a mirror for donor countries to see flaws in their own systems and new directions for reform.

The article uses one example — China’s 2001 import of the classic “Anglo-American” concept of trust — to illustrate the advantages of a more balanced study of legal transplants. China has produced a voluminous and impressive comparative trust law literature. This literature is important for understanding the trust law model China transplanted as well as the legislative product of that transplant. Yet, because nearly all texts are available only in Chinese, these publications and the lessons they provide have been inaccessible to those who could most profit from them — trust law scholars and reformers in the United States. This article thus presents the first study of China’s critique of American trust law. It shows that close analysis of Chinese commentary, legislative history, and statutory text exposes a systemic flaw that U.S. scholars and reformers should address: inadequate checks and balances on trustees.

The article concludes that this finding raises serious questions about the current direction of American trust law. Rather than strengthening the traditional legal and moral constraints on trustees, reformers are actually weakening those constraints. Thus, the mirror China provides should inspire reformers to see our trust system as it really is and to abandon their ill-advised reform agenda.

Keywords: Chinese trust law, U.S. trust law, comparative law, constraints on trustees, legal transplants

Suggested Citation

Foster, Frances H., American Trust Law in a Chinese Mirror (2010). Minnesota Law Review, Vol. 94, No. 602, 2010; Washington University in St. Louis Legal Studies Research Paper No. 12-05-24. Available at SSRN:

Frances H. Foster (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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