Thursday, September 27, 2007
Evelyn Brody (Chicago-Kent) has published From the Dead Hand to the Living Dead: The Conundrum of Charitable-Donor Standing, 41 Ga. L. Rev. 1183 (2007). Here is part of the Conclusion:
The courts' increased and continued confusion over what law to apply to private enforcement of charitable gifts suggests that the existing legal classifications are not working. Charitable trust law does not by its terms apply to restricted gifts not made in trust. To allow the donor to obtain enforcement rights by agreement-and to spell out what could be quite detailed and long-lived powers for the donor and others-fails to take into account the public policy limits on private ordering that should apply to charitable assets. A better solution might be to acknowledge the unique character of these “giftracts” and to craft a tailored legal regime for them. Such a regime would address not only standing but also consider imposing such conditions as notification of the attorney general, time limits on private (but not attorney general) enforcement, and a circumscription of appropriate remedies in order to protect the charity. I have undertaken such a project as part of the larger topic of enforcement (both public and private) of charitable duties in my work as Reporter for the American Law Institute's Principles of the Law of Nonprofit Organizations. Several of the issues, however, will likely require a legislative solution.