Clarifying Justice Marshall’s contract-based constitutional analysis in Trustees of Dartmouth College v. Woodward, which confirmed that the cy pres power is a judicial prerogative.

In prior postings we have considered how the plethora of hyper-technical legislative tweaks to and partial codifications of the principles-based law of trusts, such as the Uniform Trust Code and the Uniform Trust Decanting Act, are perversely rendering the law of trusts less uniform across the jurisdictions, as well as ever more hyper-technical, incoherent, and inaccessible to all but the initiated. For a detailed brief in support of the case against codifying aspects of equity doctrine see generally Chapter 1 of Loring and Rounds: A Trustee’s Handbook (2021). We cannot forget that the institution of the trust itself is a creature of equity, not of legislation or executive order.

In this posting we consider a related matter, namely whether a state legislature may constitutionally, other than via a compensated taking, tamper with the particular terms of a trust that is already up and running. This is a topic that is taken up in §9.4.4 of Loring and Rounds: A Trustee’s Handbook (2021). An enhanced post-publication version of the section is reproduced in its entirety in the Appendix immediately below.