Trust Law

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.