Friday, July 23, 2010

Sullivan, Katz and Beach on Charitable Trusts in New York, 1777-1893

Legal Change and Legal Autonomy: Charitable Trusts in New York, 1777-1893 is an older article just posted, by Barry Sullivan, Loyola University Chicago School of Law; Stanley N. Katz, Princeton University - Program in Law and Public Affairs; and Capt. Paul Beach, Judge Advocate General's Office - Washington, D.C. The article appeared in the Law & History Review (1985). Here’s the abstract:
The law of charitable trusts in New York provides a wonderful example of the complexity of legal change. We hope to show that the so-called "restrictive" policy followed by New York was not really a legal policy of the state in the sense that it represented a rule deliberately designed to achieve a specific policy goal. On the contrary, it was largely the result of a highly traditional common law judicial response to social policy inputs having nothing at all to do with either the law of charity or the law of trusts. To this extent, it is an example of the "autonomy of law." There were changes in New York law during the period that is the subject of this paper. We trace these developments as they occurred, by first surveying the English law of charity as it existed at the time of the Revolution, and then tracing the development in New York of a state law of charity from that time until 1844, when the New York courts appeared to have established a systematic approach to the subject. We then discuss the political and judicial reforms that were manifested in the Constitution of 1846 and resulted in the abolition of charitable trusts. Finally we recount the failure of Tilden's will and the resulting legislation that ultimately changed the law of charity in New York. We conclude by assessing the importance of this analysis for the history of American charity law and the history of American charity itself.