The New Trust Code

Allison Tait–

Legal scholars who care about how law creates wealth and power cannot afford to disregard the trust. As Katharina Pistor mentions in her recent book, The Code of Capital, the trust stands out as one of Anglo-American law’s “most ingenious modules for coding capital.” Trusts are a longstanding component of the “feudal calculus” that Pistor shows us is still “alive and kicking” in our financial regulation. Since their inception in the early eleventh-century in England, trusts have been essential instruments in the great and continuing quest to preserve and protect family wealth.

Trusts have always played a central role because they partition assets, thereby confusing the question of true ownership. That is to say, because trusts divide legal and equitable ownership, the real owner of the assets – the beneficiary – doesn’t have legal title to the assets and the legal owner – the trustee – doesn’t have any real rights to the property. In this way, trusts magically code their managed wealth as obscure and unavailable, without a true owner who can be held accountable for debts and obligations. As Roger Cotterrell pointed out some thirty years ago, “[t]he trust provides a way of freeing the property owner from constraints which the ideology of property otherwise imposes on her or him through its logic.” Accordingly, trusts have helped high-wealth families avoid unwanted taxation, shelter assets from surviving spouses, circumvent all manner of creditors, and protect family fortunes from spendthrift children.

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Financial Regulation and Social Reproduction

Financial Regulation and Social Reproduction

NB: This post is part of the “Piercing the Monetary Veil” symposium. Other contributions can be found here.

Donatella Alessandrini —

Even amongst critical scholars, there is a tendency to treat international regulation of money and finance as “strictly economic”, distinct from the “social” domains of labor, the environment, and socio-economic rights. This conceptual separation cedes the realm of finance to the “neutral” neoliberal technocracy while occluding interrelationships between finance, production, and social reproduction. Placing social reproduction at the center of our analysis forces us to overcome these false dichotomies and confront finance’s role in the shaping of the “social”.

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Gender Equality as Social Reproduction Infrastructure

Julie Suk —

On May 30, 2018 the Illinois legislature voted to ratify the ERA. Thirty-seven states have now ratified the sex equality amendment to the U.S. Constitution, just one state shy of the three-quarters required by Article V to validly amend the Constitution. Legal commentary following this news is primarily focused on questions about the amendment’s legitimacy, such as the status of post-deadline ratifications and attempted rescissions, the constitutionality of ratification deadlines for amendments, and the validity of legislation eliminating the deadline. But it is equally important to contemplate how the ERA could change the political economy of gender inequality. It can be more than a symbol that locks in the sex discrimination law we already have. We can take some inspiration from feminist constitutionalism around the world to imagine a twenty-first century ERA that catalyzes new gender-equal infrastructures, particularly for biological and social reproduction, compatible with a sustainable and more humane political economy.

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Gender Inequality and the Infrastructure of Social Reproduction

Julie Suk – 

Our jurisprudence of sex equality imagines a world without prescribed gender roles in the family and the public economic and political spheres. Almost fifty years ago, the Supreme Court repudiated the “separate spheres” tradition, which confined women to role of unpaid caregiver in the family and home, while reserving breadwinning and public power to men. Yet, neither constitutional equal protection nor statutory employment discrimination law acknowledges that the separate spheres tradition formed the infrastructure of social reproduction in our political economy. Mothers at home raised the next generation of citizens-workers without pay or rights. It was an unjust infrastructure, premised on women’s subordination, but it served an enduring social need.

Today, no alternative infrastructure of social reproduction has emerged to replace the unpaid contributions of full-time mothers and homemakers. School days did not expand to match the schedule of mothers working full-time, and the definition of full-time work did not shrink to enable its participants to devote much time to the duties of child-rearing. In the absence of a robust state system of social support, working families attempt a range of uncoordinated, expensive market-based improvisations towards gender-equal relations in the home and in the public sphere. The result is an eroded and unjust infrastructure of social reproduction whose burdens fall especially hard on women; the remaining gender pay gap is largely a motherhood gap. Furthermore, poor women, often migrants, are doubly burdened when they are employed to meet the care needs of more privileged households, while caring for their own families at home. Employment anti-discrimination law was intended to counteract sexist stereotypes, but a fuller sex equality requires a new infrastructure of social reproduction.

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