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

21 Pages Posted: 13 Jul 2022

See all articles by Naomi Cahn

Naomi Cahn

University of Virginia School of Law

Deborah S. Gordon

Drexel University Thomas R. Kline School of Law

Allison Anna Tait

University of Richmond - School of Law

Date Written: July 13, 2022

Abstract

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.

Keywords: Trusts, Restatements, ESG investing, gender

Suggested Citation

Cahn, Naomi R. and Gordon, Deborah S. and Tait, Allison Anna, The Restatements of Trust – Revisited (July 13, 2022). 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, Available at SSRN: https://ssrn.com/abstract=4161965

Naomi R. Cahn (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Deborah S. Gordon

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

Allison Anna Tait

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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