Mumford on Holmes and Anglo-American Equity

Ann Mumford, Dickson Poon School of Law, King's College London, has published "Re-Enacting The Judicial Philosophy Of Oliver Wendell Holmes, Jr.: Saunders v. Vautier and Claflin v. Claflin Compared"open access, in Comparative Legal History.

Oliver Wendell Holmes, Jr. (NYPL)

Oliver Wendell Holmes Jr. sat on the Supreme Judicial Court of Massachusetts in 1889, when, in the case of Claflin v Claflin, he joined the decision that a trust may not be modified if the intention of the testator would be undermined. Claflin rejected Lord Cottenham's reasoning in Saunders v Vautier that, under certain circumstances, beneficiaries may compel the termination of the trust and transfer the property to them. Claflin v Claflin and Saunders v Vautier are perhaps the two most famous cases in Anglo-American Equity. Through a detailed examination of manuscripts, this article offers a comparative expansion of the US and English histories, and particularly considers the role played by Holmes. Re-enactment theory offers the possibility of creating, or reliving, the intellectual process that led to Claflin, thus revealing a significant moment in the history of US federalism. 

--Dan Ernst 

Barnett and Barnett on the Burwood Ejectment Case

Katy Barnett, Melbourne Law School, and Lynne Barnett have posted "Equity’s Darling" and the Burwood Ejectment Case: A Turning Point in Colonial Australian Law, which appeared in Australian Law Journal:

The Burwood Ejectment case arose when the ad hoc executor and trustee of a will in early colonial Sydney sold off Burwood Estate to meet the testator's debts, after receiving a court order empowering him to do so. Twenty years later, the testator's de facto wife and children successfully voided the sale. The purchaser was ejected, notwithstanding the fact that he was a bona fide purchaser for value without notice. The decision undermined confidence in security of transactions in the Colony and created a political furore and ongoing disputes. It is suggested that the case was a contributing factor to the creation of the Judge in Equity in New South Wales and illustrates broader issues with security of title and the political and legal organisation of early colonial Australia. 

--Dan Ernst 

Gallanis on Revolutions in American Trust Law

Thomas P. Gallanis, George Mason University Antonin Scalia Law School, has posted American Revolutions in the Law of Trusts, which is forthcoming in the ACTEC Law Journal:

American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan.

This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness. The Article's primary aim is to shape how American trust law is understood, historically and today.

The Article's contribution is as fundamental as periodization. We used to teach that the "Roman Empire" was followed by the "Early Middle Ages." This periodization was transformed by the pioneering scholarship of the historian Peter Brown. Professor Brown is credited with creating the field of Late Antiquity, approximately AD 250-750. Analogously, this Article's framework of the five revolutions is designed to shape our understanding of the history and development of America's distinctive trust law.

Part I of the Article identifies and analyzes the five revolutions. Part II offers a personal assessment of American trust law's distinctiveness. A brief conclusion follows.

--Dan Ernst

Waddilove on Equity in 1600

D.P. Waddilove, Notre Dame Law School, has posted Aspects of Equity in 1600: Wills, Forfeitures, and Trusts, which is forthcoming in Essays on the History of Equity, edited by David Foster and Charles Mitchel:

The Court of Chancery in 1600 stood somewhere on the bridge between medieval dispenser of ad-hoc justice and sclerotically rigid Regency court of punctilio. Equity was in an uncertain state, no longer unpredictably free-form, but not yet driven to the regularity of fully precedential lawlikeness.

At the time, the Great Seal was in the hands of Sir Thomas Egerton, Lord Keeper from 1596 to 1603, and Lord Chancellor (as Lord Ellesmere) from 1603 to his death in 1617. Although recognized in his own day and immediately afterward as particularly significant for the development of equity, legal history has tended to disregard him thanks to overreliance upon printed reports, which begin to cover the court meaningfully only after his tenure.

This paper, based on a comprehensive review of the daily record of the court, the Chancery Register, for the legal year beginning 1600 (9 October 1600 - 8 October 1601), considers aspects of equity to assess their state of development and shed light on Egerton's influence. Supplemented with the manuscript Chancery reports first printed by Professor Hamilton Bryson in Selden Society volumes of 2000-2001, it considers three major areas of equitable jurisdiction. Two of these, securities (such as bonds and mortgages) and trusts, are often considered the main jurisdictions of Chancery. The third, disputes over testamentary matters and decedents’ estates, became stereotypically associated with Chancery in Dickens's Bleak House, and also formed a major aspect of equitable jurisdiction. This paper thus sheds light on the nature of equitable development in these major areas in an under-studied period.

--Dan Ernst

Foster on Enforcing Crown Forfeitures in Equity

David Foster, University College London Faculty of Laws, has posted Fraud, Trusts and Trusting: Enforcing Crown Forfeitures in Equity, c.1570–1620, which is forthcoming in the Journal of Legal History:

Sir Edward Coke (NYPL)

Conveyances with informal agreements to hold for the benefit of the transferor initially proved efficacious in avoiding statutory forfeiture provisions. In the late sixteenth century, the equity side of the Exchequer developed a capacious doctrine of revenue fraud designed to capture such informal arrangements and to subject the transferor to liability for crown forfeitures. Initially drawing inspiration from the ‘badges of fraud’ in the Statute of Fraudulent Conveyances 1571, the Exchequer quickly lowered the evidentiary threshold required to prove a conveyance fraudulent. A key badge of fraud was an ‘entrusting’ of the transferee by the transferor. The presence of a conveyance ‘in trust’ eventually became the sole evidence required to hold certain conveyances fraudulent under the statute. In the longer term, these cases became the precedential basis for holding the beneficiary’s right under a trust liable to forfeiture as a matter of doctrine.

--Dan Ernst

Foster on the Express Trust

David Foster, University College London Faculty of Laws, has posted Historical Conceptions of the Express Trust, c 1600-1900, which is forthcoming in Philosophical Foundations of the Law of Trusts, ed. Degeling, Simone and Hudson, Jessica and Samet, Irit, a volume in the Oxford University Press's series, Philosophical Foundations of Law,

This chapter discusses the historical and analytical conceptions of the express trust in the period c 1600 – 1900. Particular emphasis is placed upon the historical conception of the trust as a ‘confidence annexed in privity’ and the slow reification of the beneficiary’s right under a trust in the case law and treatise literature of the period. This aspect of the trust’s history is explored through the development of rules governing the exigibility and enforceability of the beneficiary’s right and provides historical context to the more analytical treatments of the trust in the mid-to-late nineteenth century. The chapter concludes with a consideration of the significance of the school of analytical jurisprudence in shaping modern conceptions of the trust – most notably by applying the language of rights in rem and rights in personam to equitable rights. 

--Dan Ernst

ALI: A Centennial History

The American Law Institute: A Centennial History, edited by Andrew S. Gold and Robert W. Gordon, has been published by Oxford University Press:

This book collects together a series of original essays in honor of the American Law Institute’s (ALI’s) Centennial. The essays are authored by leading experts in their fields, often including current and former Restatement Reporters. The essays also provide a wide range of perspectives on both methodology and the law. The volume coverage focuses on specific ALI undertakings, including some of the more important Restatements and Codes; several leading Principles projects; statutory projects such as the Model Penal Code and the Uniform Commercial Code; themes that cut across substantive fields of law (such as Restatements and codification or Restatements and the common law); and the ALI’s institutional history over the past century. The resulting book is a unique and compelling contribution to its fields of study.

TOC here, but but note that many of the chapters are open access, including Robert W. Gordon's Restatements and Realists.

--Dan Ernst

Zier on "Feminism, Insanity, and Property Rights in 1940s America"

Magdalene Zier (JD/PhD candidate, Stanford Law School) has posted "'Champion Man-Hater of All Time': Feminism, Insanity, and Property Rights in 1940s America," which is forthcoming in the Michigan Journal of Gender & Law. Here's the abstract:

Legions of law students in property or trust and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 New Jersey supreme court decision as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on the overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist.

This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy. 

The full article is available here.

-- Karen Tani

Langbein on the the Nonprobate Revoutlion

Props to a master.  John H. Langbein, Yale Law School, has posted Because Property Became Contract: Understanding the American Nonprobate Revolution:

In modern American practice the state-operated court system for transferring wealth on death, called probate, is being displaced. The wealth-transfer process has been increasingly privatized, conducted now mostly in the back offices of financial institutions rather than in the probate courts. Driving this privatization of wealth transfer has been a profound change in the nature of personal wealth, away from land and tangibles into contract claims against financial intermediaries such as banks, securities issuers, mutual funds, brokerage houses, insurers, and pension funds. Financially intermediated wealth has the distinctive attribute that it arises from the administrative processes of these institutions, work that entails recurrent transactions and communications. Once a staff is in operation to perform such tasks, extending its role to include the transfer of account balances on death has been easy. The account owner shunts the asset away from probate by completing a beneficiary designation form directing the institution to distribute the account asset in designated shares to designated persons. The emergence of this free-market transfer system has disrupted the application of a variety of the default features of the probate process, most ominously, the creditor protection function. 

--Dan Ernst

Advance Articles from AJLH

Have you signed up for Advance Alerts for the American Journal of Legal History?  Articles appearing on-line since November 8 are:

Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961, by Coel Kirkby

Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter with Forced Heirship, by Lloyd Bonfield

Italian judges and judicial practice in Libya: a legal experiment in multinormativity, by Alessia Maria Di Stefano
The Jury Speaks: Jury Riders in the Nineteenth and Twentieth Centuries, by Mark Coen and Niamh Howlin

Ramaswamy on a philanthropist in Tamil country

Earlier this year, Sumathi Ramaswamy, Duke University, published "Giving Becomes Him: The posthumous fortune(s) of Pachaiyappa Mudaliar" in Modern Asian Studies (January 2018), 35-61. Here is the abstract: 

This article explores the ways in which Pachaiyappa Mudaliar (1754?–1794) has been panegyrized as the quintessential benefactor of our times in Tamil prose, poetry, and pictures over the course of the past century and a half. In the bureaucratic and legal documents of the colonial state, he appears as a rapacious moneylender and behind-the-scenes wheeler-dealer, a member of that hated class of ‘Madras dubashes’, a ‘most diabolical race of men’. In contrast, Tamil memory work since at least the 1840s has differently recalled this shadowy eighteenth-century man as a selfless philanthropist whose vast wealth financed some of the earliest educational institutions in the Madras Presidency. I track the posthumous fate of Pachaiyappa's bequest to argue that even as the founding of the public trust and its educational philanthropy departed radically from his willed intentions, a new complex of living, dying, and giving for the sake of native education was put in place in the Tamil country in the age of colonial capital and pedagogic modernity.

More information is available here. 

Birla on philanthropy and profit in modern India

Earlier this year, Ritu Birla, University of Toronto published "C=f(P): The trust, 'general public utility,' and charity as a function of profit in India" in Modern Asian Studies (January 2018), 132-62. Here is the abstract: 

With an interest in historicizing contemporary philanthropic formations such as corporate social responsibility, this article outlines the modern Indian governmental coding of charity as a function of profit. To do so, it charts a trajectory of legal-fiscal policy on charitable tax exemption in India, especially since the 1940s. Informed by the study of vernacular capitalism, research on economization and on epistemologies of calculation, the analysis maps juridical trajectories on the idea of charity, its relationship with trade, and, more specifically, profit-making. It demonstrates how the legal mechanism of the public trust, which serves in the late nineteenth century to institutionalize a strict distinction and separation between charity and profit-making, later reconfigures and connects them by buttressing the main legal criterion for charity in India, that is, ‘general public utility’. This legal story is deployed to draw attention to philanthropy more broadly as a key terrain for research on processes of economization and neoliberal governing. At the same time, the argument also works against the grain of palimpsests in contemporary public discourse which stage a continuous and direct line from pre-colonial vernacular practices to Indian philanthropy today.

Further information is available here.