A New COUNTERPRESS Publication →

Nick Piška and Hayley Gibson (eds.)

B & W 229 x 152 mm | Perfect Bound on White w/Matte Laminate | 242 pages | Paperback ISBN 978-1-910761-23-6 | E-book (ePDF) ISBN 978-1-910761-24-3 | 10 September 2024

In May 2016 a group of trust lawyers and activists met at The Shard, London, to discuss the relationship between pension trusts and global corporate capitalism. During a break, standing at the large glass windows looking down at the City of London, Nick Piška and Adam Gearey reflected on the paucity of critical trusts scholarship given the role of trusts in the global financial crisis and rising wealth inequality. The conversation naturally turned to the work of Roger Cotterrell on trusts,[1] one of the few theoretical-doctrinal interventions to have linked trusts to questions of power and inequality, and the seed of an idea for a symposium revisiting themes in Cotterrell’s work on trusts was sown. In 2017, 30 years since the publication of his first in a trilogy of articles on trusts law, we hosted that symposium in Canterbury.

This edited collection brings together a number of the papers presented at that symposium. Themes explored in the chapters include ideology and the (in)visibility of power; the abuse of trusts; the gendering of trusts; and the implications of trusts regimes for tax, finance and banking. Some set out new agendas for trusts scholarship. Many turn to developments in trusts practice since the publication of Cotterrell’s articles (for example developments in asset protection trusts) attest to the continued prescience of Cotterrell’s critique.

The collection will be of interest to trusts students and researchers looking for critical reflections on trusts law, theory and practice. At Kent Law School we have been setting Cotterrell’s articles on trusts as ‘core reading’ on our undergraduate Equity & Trusts module for many years. Introducing trusts to undergraduate students might appear daunting enough, but introducing the trust idea, trust doctrine, and a critique of the trust form simultaneously has been challenging and exhilarating in (almost) equal measure. Each year we find different nuances and different points to emphasize in Cotterrell’s works as the legal, social, economic and theoretical milieu has shifted—and each year our students bring different questions and ideas to the seminars and assessments.

The collection consists of 13 chapters, including an introduction to and overview of critical trusts scholarship by Nick Piška and an afterword from Roger Cotterrell.

Preface: Nick Piška and Hayley Gibson

1. An Introduction to Critical Trusts Law: Nick Piška

2. The Power of the Settlor: Jonathan Garton

3. Trusts Law and the Problem of Moral Distance: Michael Bryan

4. The Reproduction of Property through the Production of Personhood: The Family Trust and the Power of Things: Johanna Jacques

5. The Myth of the Powerless Beneficiary and Twenty-First Century Trusts: Carla Spivack

6. ‘The More He Argued, The More Technical He Became’: Trusts and Surplus Value: Adam Gearey

7. Subversion as an Agenda for Critical Trusts Law Scholarship: Mark Bennett and Adam Hofri-Winogradow

8. Tax Justice and the Abuse of Trusts: Andres Knobel

9. Trusts Law and Structural Power: T.T. Arvind and Ruth Stirton

10. Charity and Ideology: Henry Jones

11. The Gendered Trust: Lisa Sarmas

12. The Bank of England’s Directors as Trustees in Walter Bagehot’s Lombard Street: Iain Frame

13. Afterword: Trust and Critique after Three Decades: Roger Cotterrell

These chapters provide a snapshot of an emerging body of critical scholarship on trusts. Each of the chapters is oriented, in one way or another, towards social justice. As the chapters in this collection are oriented around the work of Roger Cotterrell, there is an inevitable continuity with Cotterrell’s themes, methods and conceptual framing. There are of course many alternative critical accounts of trusts to be written, using different theoretical frameworks and asking different questions—and we hope the collection inspires them.

Nick Piška and Hayley Gibson

Kent Law School

The book can be purchased in print copy or downloaded as a PDF on a ‘pay what you can’ basis here: https://counterpress.org.uk/publications/critical-trusts-law/

[1] See Roger Cotterrell, ‘Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship,’ Journal of Law and Society 14 (1987); Roger Cotterrell, ‘Some Sociological Aspects of the Controversy Around the Legal Validity of Private Purpose Trusts,’ in Equity and Contemporary Legal Developments ed. Stephen Goldstein (1992); Roger Cotterrell, ‘Trusting in Law: Legal and Moral Concepts of Trust,’ Current Law Problems 46 (1993).