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Hyperbole, calumny, and apocalpytica enveloped the Buck Trust litigation ever since the San Francisco Foundation ("Foundation") filed its cy pres petition in January 1984. The petition was characterized as a threat to the sanctity of wills and the health of philanthropy, and as an offense against capitalism, the American way of life, and God. Foundation personnel were said to be corrupt and dishonest and, in the language of a Marin County Supervisor, "grave-robbing bastards."
To consider the merits of this case, we must hack our way out of this thicket of rage and follow the advice Hamlet's mother gave to Polonius, "More matter, with less art." Here, the "matter" is to be discovered by looking at the Foundation's petition itself, the rationale that undergirds it, and the relationship between that rationale and the concept of cy pres. That is the primary focus of this Article, which is in large part adapted from two documents I filed in support of the petition during the course of the litigation.
This Article commences with a brief look at the two dominant factors that informed the petition and their congruence with the principles of cy pres. Next, these factors and principles, as they arose in the Buck Trust litigation, are examined more closely, paying special attention to an over-arching theme that helps us to understand the petition: the role of the nonprofit sector, the "voluntary" or "independent" or "third" sector, in the American legal order. The Article concludes with some conjectures about the consequences that would have flowed from granting the petition and with a comment on the actual, rather startling denouement of the case.
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