The fun of being that “climate strategist who stumbled into trust law — and hasn’t come back out” is discovering that some of the most promising ideas for climate litigation only appear once we stop looking at climate.
My working theory is that today’s downstream poly-crises — climate, disinformation, health, education and others — persist because of an upstream misalignment between how obligated capital is governed and how that same capital is deployed in the economy. That “money with strings”, held in trust or otherwise subject to fiduciary obligations, amounts to tens of trillions of dollars globally and represents one-third of the world economy. Governance is upstream. The economy is downstream.
Pensions are the most familiar example, but the idea extends to insurance companies, sovereign wealth funds, endowments and foundations. These institutions finance every sector of the economy. How that capital is governed — and ultimately spent — leaves a mark far beyond the beneficiaries it formally serves. It shapes economic conditions that affect all of us, including those who will never belong to a pension plan.
Perhaps we can improve our response to immediate crises like climate not by arguing more forcefully about climate itself, but by repairing a legal alignment issue so far upstream that it has nothing to do with climate and everything to do with fiduciary care. If fiduciary governance changes, the economy financed by fiduciary capital changes with it.
In the US alone, public pension systems are valued at $10 trillion. Much of the climate movement has focused on persuading those institutions to divest from fossil fuel companies because of their financial risks or environmental consequences. Yet litigation often begins with the desired investment outcome rather than the legal framework governing how fiduciaries must reach investment decisions. If the governing doctrine is misunderstood or displaced by investment convention, the argument for divestment never reaches its strongest legal footing.
One of the recurring themes in these trust law essays is that contemporary institutional investment practice speaks a different language from trust doctrine. Trust law contains concepts that are mostly invisible in status quo fiduciary administration. Prudence. Loyalty. Impartiality. “Circumstances then prevailing.” These doctrinal requirements coexist with securities-market conventions such as benchmarks, peer comparisons, diversification metrics and market performance. Those conventions may inform fiduciary judgment, but they do not substitute for fiduciary judgment.
If institutional practice has gradually come to rely on one governance framework while trust law continues to require another, that is not simply an investment question. It becomes a legal question.
The next three SSRN essays explore that possibility by returning to trust law essentials.
Of This Trust asks why prudence is always exercised for this trust rather than for trusts in the abstract. Fiduciary judgment is necessarily particular, shaped by the purposes, beneficiaries and circumstances of the specific trust under administration.
Estranged Prudence examines what happens when one governance framework gradually substitutes for another, leaving investment conventions to perform work that trust law reserves for fiduciary judgment.
Beneficiary Condition revisits the phrase “circumstances then prevailing” and asks whether the continuing condition of beneficiaries is itself part of the ongoing inquiry required of prudent administration.
If the objective is divestment — or any other future-oriented financing decision — the legal question begins well before portfolio construction. It begins with the fiduciary architecture governing the capital itself. That is where trust law starts. It is also where climate litigation becomes most interesting.