Gerald P. Moran


This article will apply the jurisprudential thesis that law is essentially the naked preference of the Decisionmaker in examining the judicial enactment of Ohio's spendthrift trust doctrine. With some degree of hope, such an examination will clarify the Decisionmaker's institutional role in the Ohio Supreme Court's determination of whether a spendthrift trust is valid. In doing so, the article will ask why the Court adopted one line of legal reasoning over another? To this end, the often noted observation of the great sage Holmes enlightens us to the principle that an explanation is not found in the exercise of logic, it lies in experience. Thus, in pursuit of the answer, this article will clarify the Decisionmaker's experiences; i.e., his or her relationship to the community as part of the decisionmaking process. Experience is not, of course, perfectly quantifiable either from the Decisionmaker's perspective or the observer's perspective. From a law professor's point of view, the Decisionmaker's unique experience's can only be summarized as a creative abstraction' because judges expertly create the appearance of neutrality and conceal their unique individual motivations. What attracts or drives ajudge to a particular answer and how or why that decision is made often remains obscured to all but the judge. Yet, in order to understand the judge's decision, one must delve into that which is the asserted principal ingredient of a decision, i.e., the idiosyncratic experience of that individual Decisionmaker. Only because we do not know how to scientifically obtain such data regarding the experience of the Decisionmaker, we have omitted its study. " Among the intriguing aspects of the spendthrift doctrine's birth are: (I) it was delivered largely through judicial edict; and (2) it necessarily inhibits the alienation of property by a trust beneficiary in a direct and, in some respects, costly fashion. These characteristics raise the question: to what extent can consumers of political preferences seek and secure further protection for their definition of property? In this context, we are familiar with the fact that certain legal and social institutions have acquired potential immortality, i.e., they exist in perpetuity. Among such favored institutions are corporations, charitable trusts, and religious institutions,' all of which acquired their favorable entitlements during a particular time and social milieu.

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