NickPiška and HayleyGibson <i>(eds)</i> , Critical Trusts Law: Reading Roger Cotterrell, Coventry, Counterpress, 2024, 242 pp, pb £18.00

Trusts are legal arrangements where assets are managed by one party (a trustee) for another's benefit (a beneficiary). But while often framed as neutral tools, Critical Trusts Law: Reading Roger Cotterrell reveals the role of these otherwise innocuous legal arrangements in perpetuating power imbalances and thus emerging as a potent symbol of deep-seated inequalities in contemporary society. Edited by Nick Piška and Hayley Gibson, this timely volume, given growing concerns about global wealth inequality, offshore financial havens, and the erosion of democratic governance – all areas where trusts play a significant but often hidden role, builds on Cotterrell's critical legal scholarship. Drawing on the experience and critical insights from a range of common law jurisdictions, including England and Wales and the United States, but equally exploring the global reach of trusts, contributors dissect cases like offshore asset shielding and exploitative philanthropy to show trusts as political instruments often favouring elites. This review evaluates the collection's critical framework and its proposed new directions, particularly its emphasis on power concentrations, moral distance, and fiduciary erosion – themes central to global discourse on tax justice and social equity. Moving beyond conventional trusts scholarship, which predominantly addresses doctrinal issues, this collection presents trusts as socio-political institutions that actively contribute to economic inequalities. This approach aligns with Cotterrell's socio-legal analysis in his 1987 article ‘Power, Property and the Law of Trusts’ ((1987) 14 Journal of Law and Society 77), which urged a departure from traditional doctrinal focus to examine the ideological and power dynamics within trusts law. As Cotterrell asserted, legal critique fundamentally involves a sociological analysis, seeking to explain legal doctrines and institutions as social phenomena with empirically verifiable causes and effects. Piška's introductory chapter sets the stage, framing critical trusts law not as a monolithic theory, but as a dynamic ethos that challenges the traditional understanding of trusts. And to substantiate this ethos, Piška revisits Cotterrell's key insights, emphasising the ideological function of trusts in obscuring power, and situates the volume within the context of contemporary concerns surrounding financialisation and the ever-widening wealth gap. As I argued in Capitalism and the Equity Fetish (London: Palgrave Macmillan, 2021) the use of trusts for the ideological goals noted by Piška, is driven by Marx's base forces of economy. This includes commercial pressures that promote trusts for both legitimate and abusive purposes, notably offshore ‘wealth management’, a euphemism for complex tax avoidance strategies. The contributors engage with three key themes that animate Cotterrell's original critique: power, ideology, and inequality. Cotterrell's critique challenged the traditional understanding of trusts, arguing that ideological dimensions of the concept of property, extended through the conception of the trust, meant that trusts became and remain indicative of the ideological currents within capitalist societies. Hence, rather than accepting trusts as neutral instruments for estate planning or charitable giving, the contributors reveal how trusts function as technologies of governance that protect and enhance the interests of the wealthy while limiting democratic oversight of capital. Several chapters focus on how trusts redistribute and obscure power relations between different actors and stakeholders. For example, Garton's analysis of settlor power reveals how those establishing trusts (settlors) retain de facto control over assets long after transferring legal title, undermining traditional claims about the free alienation of property. Rather than creating genuine separation between settlor and property, modern trusts developments – particularly offshore – increasingly accommodate settlor desires to maintain influence while gaining the legal benefits of formal separation. Spivack provides a particularly devastating critique of asset protection trusts, highlighting how trusts law prioritises wealthy settlors over tort victims and legitimate creditors. Her analysis of Scheffel v Krueger 782 A 2d 410 (NH 2001), where a child predator could shield $12 million from his victim while the plaintiff, Lorie Scheffel, received only $551,286, powerfully illustrates how trusts can serve as instruments of injustice. As Spivack observes, ‘One might think that there is something wrong with a system of property law that allows such manoeuvres’ (86). Further, for Spivack, at least in the US context, perhaps most concerning is how trusts enable elites to evade democratic oversight of property and thus wealth through the underperformance of legislative oversight ‘due to interest group capture’ in property law (97-98). Similarly, Bennett and Hofri-Winogradow explore the impact on democracy from the ‘subversive’ use of trusts, showing how they enable wealthy individuals to operate in legal grey zones through offshore arrangements and informal ‘letters of wishes’ that circumvent formal legal constraints. Echoing the work of Brooke Harrington in Capital without Borders (Cambridge, MA: Harvard University Press, 2016), their analysis reveals the increasingly global nature of trusts arrangements that transcend national regulatory frameworks, creating strategic disarray in national legal systems through a loosening of constraints on both assets and their owners (131). Meanwhile, Jones offers a particularly insightful critique of charitable trusts, revealing how philanthropy often reflects wealthy donors’ ideological preferences rather than public needs. By directing resources toward causes aligned with their worldview while neglecting systemic issues like racial justice or poverty, charitable trusts enable private interests to usurp democratic decision-making about social priorities. Jones's critique exposes how philanthropy can serve as an ideological control tool, enabling private interests to shape public policy through tax-exempt foundations while legitimising the status quo and masking the need for structural reform. One of the volume's most compelling insights concerns how trusts create ‘moral distance’ between wealth and responsibility, between trustees and the real-world consequences of their decisions, facilitating governance structures that absolve trustees of responsibility beyond narrow legal obligations. Trusts structures, in this sense, often free trustees of ethical responsibility, reducing accountability for their financial decisions. It is to this end that Bryan analyses how trusts repeatedly act as ‘impersonal facultative machinery for the allocation of income derived from the investment of accumulated capital’ (54). Arvind and Stirton's examination of pension trusts similarly highlights a crisis in fiduciary responsibility rooted in structural causes. As trustees become disconnected from beneficiaries – replaced by corporate entities prioritising profit over stewardship – the moral foundation of trusts law crumbles. Arvind and Stirton provide several examples of how this relates to what they call the institutional and epistemic closure of structural power (159). The 2001–02 Enron crisis is a key illustration the authors offer of how pension trusts, managed by distant trustees, gambled with retirees’ savings and lead to catastrophic losses. Further, Arvind and Stirton's discussion of the Universities Superannuation Scheme (USS) shows that the stakes here are deeply personal: when trustees prioritise settlor autonomy or market returns over beneficiary welfare, they jeopardise the livelihoods of individuals. This discussion has obvious relevance across jurisdictions, as pension systems worldwide face similar challenges. The contributors convincingly demonstrate how trusts function as engines of wealth inequality. Jacques offers a striking analysis that focuses on a key distinction (and a gap in Cotterrell's own analysis) between the power of things and the social power of persons. As Jacques says, ‘Far from allowing beneficiaries to hide their property ownership, such trusts hide the power of things to ensure, with the help of the beneficiaries, their own reproduction and accumulation’ (70), a theory she illustrates via dynastic trusts, which preserve wealth across generations while simultaneously moulding the identities of beneficiaries to ensure continued stewardship of capital – effectively entrenching class privilege through legal mechanisms. By allowing capital to grow tax-free across generations, Jacques reminds us, trusts fundamentally undermine principles of equal opportunity. Gearey takes a Marxist approach, focusing on law's role in articulating ‘the centrality of surplus value to the chaotic, destructive genius of capitalism’ and arguing that trusts extract surplus value and concentrate wealth (117). While innovative, Gearey's analysis does risk diluting Marx's concept by extending it to dividends and securities, prioritising circulation over production, and applying surplus value to trusts law by claiming trusts mediate its distribution between capital and state. The treatment of ‘fictitious capital’ (for example dematerialised securities) is more coherent, echoing Marx's view of finance as detached from production. However, the analysis of SL Claimants v Tesco [2020] Bus LR 250 prioritises regulatory gaps over systemic critique, missing an opportunity to interrogate how fictitious capital perpetuates exploitation. While Cotterrell's challenge to expose economic power in law is addressed, the chapter leans heavily on doctrinal exegesis rather than structural critique. Knobel's chapter on tax justice underscores how trusts – particularly offshore trusts – deprive states of revenue needed for public services. By referencing the Panama and Paradise Papers, revelations that made headlines worldwide, Knobel connects specialised legal scholarship to broader public concerns about tax avoidance and evasion. This matters because the offshore dimension, as Shaxson documented so incisively in Treasure Islands: Tax Havens and the Men Who Stole the World (London: Vintage, 2011), represents a significant aspect of how states such as Britain managed to turn ‘semi-colonies into secrecy jurisdictions’ (Shaxson, ibid, 106). While the volume effectively extends Cotterrell's original critique, certain limitations warrant consideration. The collection could have more fully engaged with how digital technologies and financialisation have transformed property relations and trust arrangements. For example, the way information systems, blockchain technologies, machinic fiduciaries, algorithmic and generative AI agents, delegation, and governance models are and will impact trusts represents a significant area for continuing and future critical work. Additionally, while the collection is strong in its focus on economic power, it could have further explored the intersections of trusts law with race and postcolonialism. This would have provided a much-needed critical counterpart to collections like Asia-Pacific Trusts Law, which tends to downplay the colonial project of common law subjection and diversification. As noted in the introduction to that work by Liew and Harding, ‘despite having achieved political and legal independence from Britain, these [former colonies of the British Empire] are jurisdictions in which the common law (including equity) of England remains highly persuasive in local courts, including in relation to trusts’ (3). This euphemistic framing obscures the ongoing influence of colonial legal frameworks pointed to by the likes of Shaxson. The introduction to Critical Trusts Law, while effective, could have delved deeper into the intersections of trust law with broader socio-economic forces. A more explicit engagement with law and political economy, drawing on the likes of Cohen's critique of political economy in Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008) that questions whether ‘a society without an ethos in daily life that is informed by a broadly egalitarian principle for that reason fails to provide distributive justice’ (Cohen, ibid, 2), could have further underscored the systemic nature of the issues at hand. The implications of this collection extend far beyond legal academia. By exposing trust law as a key technology of economic and legal governance, the contributors reveal how seemingly technical legal arrangements fundamentally shape wealth distribution and social mobility. When trusts shield wealth from taxation, evade regulation, and perpetuate inequality, they undermine the social contract and erode public trust in institutions. The collection calls for reimagining trusts law – transforming it from a tool that entrenches inequality into a potential instrument of social justice. This would require greater transparency in trusts arrangements, stronger accountability for trustees, more equitable tax laws, and robust democratic oversight of wealth concentration. Such reforms would have significant implications across jurisdictions grappling with growing wealth inequality and challenges to democratic governance, but the arguments (like the need) for governments to act are getting stronger and more persuasive. Critical Trusts Law: Reading Roger Cotterrell makes an important contribution to our understanding of how legal structures shape economic power and social relations. While primarily aimed at legal and socio-legal scholars, its analysis should resonate with anyone concerned about wealth inequality, democratic accountability, and social justice. The volume succeeds in pulling back the veil on the seemingly neutral façade of trusts, exposing the role as a powerful instrument for perpetuating wealth concentration and undermining democratic principles. The book challenges us to confront the uncomfortable truth that seemingly neutral legal instruments can serve as powerful tools for maintaining existing power structures. Only by understanding these dynamics can we begin the work of building more equitable legal frameworks. For scholars, policymakers, and citizens across jurisdictions, this volume offers valuable insights into how technical legal arrangements fundamentally shape our social world – and how they might be reimagined to serve more democratic ends.