Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, June 24, 2020

Article on Against Subversion, a Contribution to the Normative Theory of Trust Law

Mark J. Bennett and Adam S. Hofri-Winogradow recently published an article entitled, Against Subversion, a Contribution to the Normative Theory of Trust Law, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: Eo-scale2

This article closes a gap in the theory of trust law by supplying a normative account of the use of trusts to avoid and subvert other legal norms. While the use of trusts to subvert other law has been a major function thereof since the middle ages, a fact acknowledged by jurists, doctrinal and textbook authors for centuries, theorists of trust law have largely steered clear of this function. We evaluate the two most commonly proffered justifications for the use of trusts to subvert the law: that such use enhances users’ autonomy, and that trusts allow people to avoid or mitigate injustices found in law to which they are subject. We find that such justifications are not plausible in liberal legal systems, and so the subversion use of trusts should be, and usually is, curtailed, principally by anti-subversion norms found outside trust law.


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