Bridget J. Crawford (Pace University School of Law) & Yeewen New (New York University) recently published The Deliberative Trustee, 2026. Provided below is the Abstract:
A transgender woman asks the trustee of a long-term discretionary trust to recognize her as a beneficiary of a trust created for the settlor’s “male descendants.” A second beneficiary of the same trust requests funds to travel across state lines for a lawful abortion. A third seeks support for a state-licensed cannabis enterprise that remains federally unlawful. A fourth requests a trust distribution for legal defense costs arising from a civil rights action against him for on-duty law enforcement conduct. A fifth asks for funds for a firearm purchase that is lawful in her state of residence. Each request falls within the trust’s plain terms but engages the trustee’s commitments in ways that traditional fiduciary doctrine is not equipped to distinguish from ordinary discretionary judgment.
This Article argues that the problem is not fiduciary doctrine’s failure to police trustee misconduct. Self-dealing and bad faith are well handled. The problem is the absence of doctrinal mechanisms for distinguishing permissible fiduciary judgment from the substitution of the trustee’s own commitments. The risk is bidirectional: a trustee whose commitments favor a request may approve distributions deliberative analysis would deny; one whose commitments disfavor a request may deny distributions deliberative analysis would grant. In both cases, the doctrine provides cover.
This Article proposes a process-based approach grounded in the fiduciary duty to inform and paralleled in federal employee-benefit-denial doctrine. Written reason-giving is a foundational process. Outcome audits, diversified decision-making bodies, and counterfactual deliberation extend the records produced. Fiduciary law, which has long been organized around loyalty and prudence, is, and increasingly must become, a body of doctrine about deliberation.