{"title":"The Rule of Law","authors":"Lisa M. Austin","doi":"10.1093/oxfordhb/9780190919665.013.30","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190919665.013.30","url":null,"abstract":"This chapter argues that the relationship between private law and the rule of law has been underdeveloped, or ignored, by private law scholarship until recently. Indeed, until recently, there has been relatively little attention to what the rule of law, as a conceptual and critical framework, could bring to private law theory itself. Why this lacuna in the literature? The chapter offers two speculative reasons that take up some of the themes and concerns of the New Private Law. The first reason concerns the U.S. legal academy, while the second reason concerns private law theory in the commonwealth. The chapter then outlines potential critical pathways for reclaiming a rule-of-law perspective on private law that address some of the reasons for its underdevelopment. It also explains how a focus on the rule of law in general, and in relation to some of its specific commitments and virtues, provides an important critical lens in relation to understanding and responding to the way that private power operates in the twenty-first century within what can be called the “global data economy.”","PeriodicalId":337737,"journal":{"name":"The Oxford Handbook of the New Private Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132629477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Trust Law","authors":"J. Morley, Robert H. Sitkoff","doi":"10.1093/oxfordhb/9780190919665.013.19","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190919665.013.19","url":null,"abstract":"This chapter identifies the principal ways in which the common law trust has been used as an instrument of private ordering in American practice. It argues that in both law and function, contemporary American trust law has divided into two distinct branches. In the chapter’s taxonomy, one branch involves donative trusts and the other involves commercial trusts. The donative branch divides further to include three separate sub-branches for revocable and irrevocable private trusts plus charitable trusts. The different branches of contemporary American trust law have distinctive functional purposes rooted in freedom of disposition for donative trusts and freedom of contract for commercial trusts. The chapter explains the logic of this branching in both practical function and doctrinal form.","PeriodicalId":337737,"journal":{"name":"The Oxford Handbook of the New Private Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125627366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}