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Conservative & Libertarian Legal Scholarship: Trusts & Estates

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XXIV. Trusts & Estates

LAWRENCE W. WAGGONER, ESTATES IN LAND AND FUTURE INTERESTS IN A NUTSHELL (2d ed. 1993). A very clear and concise explanation of concepts that often prove difficult for the student new to the subject.

Robert H. Sitkoff, An Agency Costs Theory of Trust Law, 89 CORNELL L. REV. 621 (2004).  A seminal work of economic analysis on trust law from Prof. Sitkoff, a young expert in the field who argues that the law should minimize agency costs to the extent possible given the settlor’s instructions.

John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 YALE L.J. 625 (1995). Argues that the “conventional account of the trust that we find in the second Restatement and in the treatises simply does not give due weight to the bedrock elements of contractarian principle that inform the norms of trust law, namely, consensual formation and consensual terms.” Explains how a trust law that took due recognition of these elements would be preferable to the status quo.

John H. Langbein, Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?, 114 YALE L.J. 929 (2005).  Argues that trustees should act in the best interest of their beneficiaries, not necessarily in the sole interest of beneficiaries, which is an outmoded legal rule from an era in which fact-finding was inadequate and ineffective.

John H. Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 HARV. L. REV. 1108 (1984). Discusses the eclipse of probate by non-probate institutions (life insurance and pension plan operators, banks, investment companies, and the like) in transferring wealth at death, and the desirability of a unified approach to construing wills and will substitutes.

Stewart E. Sterk, Asset Protection Trusts: Trust Law’s Race to the Bottom?, 85 CORNELL L. REV. 1035 (2000).  An examination of the recent trend to create trusts in domestic and offshore trust havens, in which trusts are designed to protect assets from creditors while simultaneously allowing substantial benefit for the trustee.  Prof. Sterk argues that criminal penalties might be the best remedy for countering the trend toward protecting assets in offshore trusts since civil liability is only effective when barriers to trust establishment are high, and those barriers are falling in the race to the bottom of trusts.

Robert H. Sitkoff & Max M. Schanzenbach, Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes, 115 YALE L.J. 356 (2005).  The first empirical study of competition among states for trust funds that finds strong evidence of a national trust market in which the abolishment of the rule of perpetuities causes trusts to relocate to states that have abolished the rule.

John H. Langbein, The Twentieth-Century Revolution in Family Wealth Transmission, 86 MICH. L. REV. 722 (1988). Traces the implications of the fact that “Fundamental changes in the very nature of wealth have radically altered traditional patterns of family wealth transmission, increasing the importance of lifetime transfers and decreasing the importance of wealth transfer on death.”

Max M. Schanzenbach & Robert H. Sitkoff, Symposium: Trust Law in the 21st Century: Perpetuities or Taxes?  Explaining the Rise of the Perpetual Trust, 27 CARDOZO L. REV. 2465 (2006).  A convincing argument that the rise of trusts in the late 20th century is a direct response to the generation-skipping tax instituted in the 1986 reform.

Last updated January 2009

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