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"Undemocratic" Trusts And The Numerus Clausus Principle, E. Gary Spitko

ACTEC Law Journal

In Democracy and Trusts, Professor Carla Spivack argues that, pursuant to the numerus clausus principle, a court is empowered to impair legislation authorizing a certain trust form where the legislation was not the product of "democratic decision-making." This imaginative claim is predicated upon two antecedent claims. First, Professor Spivack argues that the numerus clausus principle should apply to equitable interests. Second, she argues that the numerus clausus principle does not invest legislatures with the sole authority to determine allowable property forms; rather, courts also have an important role to play in composing the list of property forms. This review essay …