E Gary Spitko, ‘“Undemocratic” Trusts and the Numerus Clausus Principle’

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 first briefly considers the two antecedent arguments before evaluating Professor Spivack’s main claim that, in certain circumstances, the numerus clausus principle bestows upon courts a type of veto power over trust legislation.

Spitko, E Gary, ‘Undemocratic’ Trusts and the Numerus Clausus Principle (2018) 43 ACTEC Law Journal 325 (2018).

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