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M. W. Lau, The Economic Structure of Trusts (Oxford University Press, 2011).

This fascinating book stems from the author’s Ph.D. dissertation at the University of London, supervised by Professor (now the Honorable Mr. Justice) David Hayton and Professors James Penner and Paul Matthews.

The book is a response to academic writing from the United States emphasizing the contractarian or organizational basis of trust law.2

Dr. Lau’s account is also relevant to American trust law, even though our law will never be as proprietarian as the English law from which it descends. Still, American trust law, particularly as articulated in the Uniform Trust Code and the Restatement Third of Trusts, is experiencing a renewed appreciation of the property rights of the beneficiaries.3 Scholars of U.S. trust law will find much of interest in Dr. Lau’s thought-provoking book.

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  1. See John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L.J. 625, 627 (1995) (“Trusts are contracts.”); Robert H. Sitkoff, An Agency Costs Theory of Trust Law, 89 Cornell L. Rev. 621, 623 (2004) (“this Article develops an agency costs theory of trust law as organizational law”). See also Robert H. Sitkoff, Trust Law as Fiduciary Governance Plus Asset Partitioning, in The Worlds of the Trust (L. Smith ed., Cambridge University Press, forthcoming 2012) (“Trust law is organizational law.”).

    For a proprietarian approach to trust law, see, Thomas P. Gallanis, The New Direction of American Trust Law, 97 Iowa L. Rev. 215, 234-37 (2011).

  2. John Mowbray et al., Lewin on Trusts 7 (18th ed. 2008). See also David Hayton et al., Underhill and Hayton: Law of Trusts and Trustees 19 (18th ed. 2010) (referring to “the traditional emphasis on the proprietary nature of the trust”); J.E. Penner, The Law of Trusts 39 (7th ed. 2010) (“Unfortunately the ‘obligational’ view of the trust still occasionally raises its bewildered head to confuse and annoy …”)
  3. See Gallanis, supra note 1, at 237.
Cite as: Thomas Gallanis, Trust as Contract? Organization? Property!, JOTWELL (July 23, 2012) (reviewing M. W. Lau, The Economic Structure of Trusts (Oxford University Press, 2011)),