Article On The Story of Cy Pres in the United States and England

 Anton Chaevitch  (Columbia Journal of Transnational Law) recently published an article entitled, When Charity Meets Racism: The Story of Cy Pres in the United States and England, Columbia Journal of Transnational Law, Forthcoming. Provided below is an abstract of the article:

This Note examines the history of the cy pres doctrine in the American and the English law of charitable trusts. This doctrine is the main means by which a charitable trust can be altered if it has become illegal, impracticable, or impossible to maintain it in its original form. This note finds that while the doctrine was essentially identical in the United States and in England until well into the twentieth century, American courts are now far more willing to alter charitable trusts than they were originally, while the approach of English courts has hardly changed. This Note finds that the main reason for this divergence is the move away from discrimination in American law in the 1950s and beyond. Courts were confronted with major charitable trusts – such as universities and hospitals – that had discriminatory charters. Faced with a choice between letting these trusts fail and preserving them, courts generally opted for the latter – which forced them to expand the cy pres doctrine. This development did not take place in England, because trusts can be altered without court intervention in England, and nobody in England seemed willing to fight for racism in the courts. The Note concludes with a legislative proposal that could serve to reign in the doctrine in the United States, while at the same time allowing it to alter unacceptably discriminatory trusts.