Hastings Law Journal
In this Article, Professor Atkinson examines the movement among legal scholars to reform the ancient doctrine of cy pres, by which courts use their equitable powers to modify the use of charitable trust assets when the original purposes of the trusts become impossible to carry out. Traditional cy pres doctrine strikes a balance between donors' perpetual control over the use of their wealth (for charitable purposes) and broad judicial discretion to modify the charitable purpose of the trust. Professor Atkinson first describes the dilemmas posed by traditional cy pres reform. Because they work within this bipolar framework, reformers' efforts to inject flexibility into cy pres inevitably increase either dead hand control or state involvement, destabilizing the balance between the two.
As a solution to this dilemma the Article suggests a third option: leaving the disposition of charitable assets to the discretion of their trustees. Professor Atkinson argues that legal enforcement of dead hand control is not as critical as reformers have assumed, and that the notion of charitable efficiency-the standard by which reformers hope to strengthen the courts' powers to modify charitable trusts-is inadequate. Finally, he demonstrates the political and economic benefits of placing control over trust assets with trustees, and then addresses potential problems with his proposal.
Reforming Cy Pres Reform,
44 Hastings L.J. 1111
Available at: https://repository.uchastings.edu/hastings_law_journal/vol44/iss5/4