This spring, two faculty members, Bruce Mann, the Carl F. Schipper, Jr. Professor of Law, and Robert Sitkoff, the John L. Gray Professor of Law, gave lectures to commemorate their appointments to endowed chairs. View webcast.
Mann: Law and society in the American Revolution
A legal historian who studies the relationships among law, economy and society in early America, Mann presented his current research in a lecture titled “Revolutionary Justice: Law and Society in the American Revolution.”
“Legal histories of the 18th century invariably stop when the Revolution begins and resume only after the Revolution has safely ended,” said Mann. “People hardly stopped trading with one another, assaulting one another or cheating one another just because there was a war going on.”
The war affected different parts of the country in different ways at different times with different intensities as theaters of military action shifted, he said.
During the war, Mann said, law and violence were never very far apart. Recognizing this is key to understanding “the many diverse ways in which people in the Revolution tried to hold on to, refashion, and reinvent law and legal order.” Courts throughout the new states were suspended and weren’t restored until formally constituted governments could authorize them to resume. “Even in the middle of war and occupation, Americans tried to give legal legitimacy to their actions,” he said.
Mann discussed the provisional measures states took until civil authority could be restored—the committees of safety, which had limited judicial authority in the absence of formal courts, and, in New York, the Committee for Detecting and Defeating Conspiracies, which had subpoena power, the authority to proceed in secret if they chose to and the authority to call out the militia to arrest “such persons whom they shall judge dangerous to the safety of the state.”
Sitkoff: A revolution in trust law
In an April lecture titled “Lawyers, Banks, and Money: The Quiet Revolution in American Trust Law,” Sitkoff discussed the causes and consequences of revolutionary changes in American trust law.
Highlighting some of the key changes in the trusts and estates canon, he said the “trinity” of trust law—revocable trusts, business trusts and irrevocable trusts—has been transformed over the last generation. Among those changes, revocable trusts have come to be recognized as will substitutes, and business trusts have increasingly become codified into statutory trusts, primarily in Delaware.
Wealth today is held in liquid financial assets, not in land, and as a result have come numerous implications for trust law and practice, including the rise of professional fiduciaries such as banks, and increasing jurisdictional competition among states to enact trust laws that will attract other states’ trust funds.
Some changes in trust law have been top-down, driven by elites through the Uniform Law Commission and the American Law Institute. Others have been bottom-up, driven by local bankers and lawyers, who lobbied state legislatures for trust laws likely to attract new business.
As an example of a top-down reform, Sitkoff pointed to the new prudent investor laws adopted in every state. His empirical study shows those laws resulted in widespread trust portfolio allocation by professional trustees.
Looking toward the future of trusts and estates law, he suggested among other things that the increasing codification of American trust law has resulted in the state legislatures supplanting the courts as the “superintendent of trusts and estates law,” with responsibility for continued doctrinal maintenance.