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107 Yale L.J. 165 (1997-1998)
The Secret Life of the Trust: The Trust as an Instrument of Commerce

handle is hein.journals/ylr107 and id is 199 raw text is: Essay The Secret Life of the Trust: The Trust as an Instrument of Commerce John H. Langbein' In the culture of Anglo-American law, we think of the trust as a branch of the law of gratuitous transfers. That is where we teach trusts in the law school curriculum,' that is where we locate trusts in the statute books,- and that is where American lawyers typically encounter the trust in their practice. The trust originated at the end of the Middle Ages as a means of transferring wealth within the family,' and the trust remains our characteristic device for organizing intergenerational wealth transmission when the transferor has substantial assets or complex family affairs. In the succinct formulation of Bernard Rudden, Anglo-American lawyers regard the trust as essentially a gift, projected on the plane of time and so subjected to a management regime.4 t Chancellor Kent Professor of Law and Legal History, Yale University I acknowledge with gratitude the able research assistance of Marie DeFalco. I have discussed the subject of this Essay in lectures at the University of Tennessee College of Law (Knoxville, September 1996) and at the Trust Companies Association of Japan (Tokyo, October 1996). 1 am grateful for references and suggestions from those learned audiences and from Anne Alstot. Mark Ascher. Ian Ayres. Robert Ellickson. Tamar Frankel. Henry Hansmann, John Harvey. Howell E. Jackson, Kent H. McMahan, Thomas E Plank. Robcrta Romano. Steven A. Sass, Steven L. Schwarcz. John Simon, Gregory M Stein. Liwrence W Waggoner. and Robert J. Zutz. Many trust and investment industry professionals have helped me to learn about commercial practice, and some are acknowledged in the notes. I wish especially to thank David M Elwood. Eric P Hayes, and Catherine Shavell, all of the State Street Bank & Trust Co. Boston. 1. See, e.g., JESSE DUKEMINIER & STANLEY M. JOHANSON. WiLLs. TRUSTS. AND ESTATES (5th ed 1995); JOHN RITCHIE ET AL., DECEDENTS' ESTATES AND TRUSTS. CASES AND MATERIALS (8th ed 1993). EUGENE F. SCOLES & EDWARD C. HALBACH, JR.. PROBLEMtS AND MATERIALS ON DECEDENTS' ESTATES AND TRUSTS (5th ed. 1993); LAWRENCE W. WAGGONER E7 AL.. FAMILY PROPERTY LAw CASES AND MATERIALS ON WILLS, TRUSTS. AND FUTURE INTERESTS (2d ed 1997) 2. See, e.g., CAL. PROB. CODE §§ 10400-21406 (West 1993), UNIF PROBATE CODE §§ 7-101 to -307 (1983). 3. I have recently summarized the historical literature on the origins of the trust in John H Langbcm. The Contractarian Basis of tire Law of Trusts, 105 YALE L.J 625. 632-43 (1995) 4. Bernard Rudden, John P. Dawson s Gifts and Promises, 44 MOD L. REv 610. 610 (1981) (book review).

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