The Dark Side of Codifying U.S. Trust Law

ABSTRACT:

For most of Anglo-American history, trust law was case law. The law of trusts was born and molded in the English Court of Chancery and then re-shaped by the courts of the U.S. states. The U.S. law of trusts primarily was to be found in the decisions of state courts and in respected secondary sources digesting and refining the rules from those decisions, such as the American Law Institute’s Restatements and the multi-volume treatises on trust law originally authored by Austin Wakeman Scott or George Gleason Bogert.

U.S. trust law no longer is primarily case law. In 2000, the Uniform Law Commission published the Uniform Trust Code. Thirty-five U.S. states and the District of Columbia have enacted enough of the Code to be counted by the Uniform Law Commission as enacting jurisdictions. The Commission also has enacted other statutes in or allied to trust law, such as the Uniform Powers of Appointment Act and the Uniform Statutory Rule Against Perpetuities.

This Article examines some of the consequences of this shift in the U.S. law of trusts from case law to statute law. For convenience, this shift is termed “codification” because we have no word in English for “statutification.”

Perversely, the codification itself of trust law sometimes has opened the door to outcomes diametrically opposed to the goals of the Uniform Law Commission and the American Law Institute. The perverse outcomes were not intended but should have been foreseen.

This Article analyzes the dark side of the codification of U.S. trust law and offers a path for future law reform.