Permanent Collection Discussion Questions
Permanent Collection and the Barnes Foundation litigation both raise interesting and important questions about the role of charitable trusts in society and how the law operates in relation to them. Use these questions to guide your thinking and reading about Permanent Collection and the Barnes Foundation litigation.
- Charitable trusts and foundations allow individuals to use their property to promote activities they deem to be good for society. But what happens when the charitable donor's notion of what is good conflicts with that of society? Whose will should the courts enforce: the donor's or society's? Does the answer depend on whether courts would be enforcing conditions on charitable activity that foster arguably unconstitutional or unacceptable restrictions based on race, gender, religion, or sexuality?
- What level of assurance should donors have that their wishes will be enforced after death? If courts fail to enforce donor conditions on charitable gifts, will people stop making charitable gifts? If so, what will be the impact on society as a whole of such a deterrent effect?
- What principles should we (or courts) use to divine donor intent - should we (or courts) use objective or subjective criteria? Should we hypothesize present intent into changed future conditions.
- If the donor's specific intent can no longer be followed, should the court still try to follow the donor's vision as much as possible? Or should the court be able to do with the trust assets that which it thinks is best?
- Charitable trusts, like private companies, often are governed by a self-perpetuating, insular board. This can lead to mismanagement and abuse. Should the state take an active role in supervising trust activities? If so, should some version of the stringent regulations now being imposed on publicly-held companies be adopted?