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The Common Law Corporation: The Power of the Trust in Anglo-American Business History

54 Pages Posted: 25 Jan 2017 Last revised: 16 Mar 2017

John Morley

Yale Law School

Date Written: January 25, 2017

Abstract

This Essay challenges a central narrative in the history of Anglo-American business by questioning the importance of the corporate form. The corporate form was not, as we have long believed, the exclusive historical source of powers such as limited liability, entity shielding, tradable shares, and legal personhood in litigation. These powers were also available throughout modern history through a little-studied, but enormously important, device known as the common law trust. The trust was widely and very effectively used to hold the property of unincorporated partnerships and associations in England and the United States both long before and long after the passage of general incorporation statutes in the mid-nineteenth century. The trust’s success in wielding corporation-like powers suggests that the corporation’s role in legal history was smaller than — or at least different from — the one we have long assigned to it. This Essay thus lays the groundwork for a new account of the corporate form and its place in the development of modern business.

Keywords: Theory of the Firm, History of the Corporation, Trust, Business Trust, Partnership, Joint Stock Company

JEL Classification: L22, N81, N21, K22

Suggested Citation

Morley, John, The Common Law Corporation: The Power of the Trust in Anglo-American Business History (January 25, 2017). Columbia Law Review, Vol. 116, No. 8, 2016; Yale Law & Economics Research Paper No. 573. Available at SSRN: https://ssrn.com/abstract=2905724

John Morley (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
(203) 436-3527 (Phone)

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