In an April 29 lecture, Harvard Law School Professor Robert H. Sitkoff discussed the causes and consequences of revolutionary changes in American trust law. The talk, entitled “Lawyers, Banks, and Money: The Quiet Revolution in American Trust Law,” was part of an event honoring Sitkoff on his appointment as the John L. Gray Professor of Law. (Watch a webcast of the event.)
“Rob has become already one of the preeminent scholars of trusts and estates in the country,” said Acting Dean Howell Jackson ’82 in his introduction of Sitkoff. “His work combines rigorous legal analysis and empirical grounding, his scholarship is the finest now being written in this important field, and his presence really has restored Harvard to its traditional prominence in this field.”
Sitkoff highlighted some of the key changes in the trust and estates canon. The “trinity” of trust law—revocable trusts, business trusts, and irrevocable trusts—has been transformed over the last generation, he said. Among those changes, revocable trusts have come to be recognized by the law as will substitutes, and business trusts have increasingly become codified into statutory trusts, primarily in Delaware.
The third branch of the “trinity”—the irrevocable trust—has likewise experienced significant change, Sitkoff said. Wealth today is held in liquid financial assets, not in land, and with that change came 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 trust funds from other states.
Sitkoff went on to describe the mechanisms for the quiet revolution in modern American trust law. Some changes 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 have lobbied state legislatures for trust laws likely to attract new trust business to the state.
As an example of a top-down reform, Sitkoff pointed to the new prudent investor laws adopted in every state. He cited his empirical study showing that the new prudent investor laws resulted in widespread trust portfolio allocation by professional trustees. As an example of a bottom-up reform, Sitkoff pointed to the abolition of the Rule Against Perpetuities, and he cited another empirical study in which he showed that over $100 billion in trust funds has poured into the abolishing states.
Sitkoff concluded by looking towards the future of trusts and estate law. Among other things, he suggested that the increasing codification of American trust law has resulted in the state legislatures supplanting the courts as the “superintendant of trust and estate law,” with responsibility for continued doctrinal maintenance.
With his appointment as the John L. Gray Professor of Law, Sitkoff became the youngest tenured faculty member to receive a chair in HLS history. Aged 32 at the time of his appointment, Sitkoff narrowly beat former HLS Dean James Bar Ames, who was 33 when he was appointed Bussey Professor of Law in 1879.
Sitkoff is a co-author of “Wills, Trusts, and Estates,” the leading American casebook on trusts and estates. His work has appeared in leading scholarly journals such as the Yale Law Journal, the Columbia Law Review, and the Journal of Law and Economics.
In 2007, Sitkoff was named one of eight up-and-coming young lawyers by Lawyers Weekly USA, and his research has been featured in an array of popular publications including the Wall Street Journal, Business Week, and the Financial Times.
In addition to his academic research and writing, Sitkoff is an active participant in trusts and estates law reform, serving under gubernatorial appointment on the Uniform Law Commission, which drafts uniform legislation for adoption by states. He is the reporter, or principal drafter, for the Uniform Statutory Trust Entity Act. As an elected member of the American Law Institute, he participates in the Institute’s Members Consultative Groups for the Third Restatements of Trusts and Property.
Sitkoff holds a bachelor’s degree from the University of Virginia and received his J.D. from the University of Chicago Law School, where he was managing editor of the Law Review, selected for Order of the Coif, and chosen by the faculty of the Olin Prize as the outstanding graduate of his class in law and economics.
Sitkoff began his academic career at Northwestern University and later taught at New York University School of Law, where he was appointed Professor of Law in 2006—shortly before joining the HLS faculty in 2007. Before entering academia, Sitkoff clerked for Chief Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit.
The John L. Gray Professorship of Law was established in 1983 through a gift from the William R. Kenan Jr. Charitable Trust in memory of its trustee, John Lathrop Gray, Jr., who received his LL.B. from Harvard in 1930. Gray was a specialist in wills, trusts, and estates with the New York firm of Root, Clark, Buckner & Ballantine—later Dewey, Ballantine, Bushby, Palmer & Wood.
The chair named for John L. Gray was established on the understanding that it would “be awarded to a professor whose field is trust and estate law” so long as those subjects were taught at the School—and if not, in something as closely related as possible. Until 2005, the chair was held by Professor David Westfall, its only previous occupant.