Abstract

American courts have increasingly considered the possibility of prolonging the life of charitable trusts through cy près and the closely related doctrine of equitable deviation. This requires courts to interpret the material purposes of trusts and even the administrative terms on which settlors of charitable trusts condition gifts in trust made for public benefit. Yet, the implicit reasons why courts might invoke cy près to change a charitable trust’s material purpose have not been explored in significant depth heretofore—and neither has a common but vexing trend of courts conflating cy près with deviation, which negatively impacts charitable trust-making.

I analyze the extent to which judges have struggled with applying these remedies via an empirical analysis of a universe of cases receiving a published opinion from an American court from the nation’s founding through 2019. This study provides an original analysis of the cy près doctrine, including its use and misuse, along an extended timeline in American history. The study’s novel contributions are twofold. First, it teases out the distinction between cy près and like equitable doctrines. In doing so, it elucidates how courts confuse cy près with other equitable remedies. Second, it discusses the sources of the confusion around the cy près and deviation doctrines by empirically testing the factors that bear on a court’s decision to employ them accurately or inaccurately. These findings have implications not only for resolving the boundaries of the cy près doctrine, while encouraging charitable trust-making, but also for defining the critical role that judges play in shaping both the cy près doctrine and trust settlors’ expectations in the past, in the present, and for the future.

Read at SSRN.

Abstract

In the law of charitable trusts, courts wield exceptional power with respect to two equitable remedies—cy près and the closely related doctrine of deviation—they can confer on trusts that have purposes or terms rendered ineffectual. Either doctrine allows the court to prolong the trust’s life, perhaps forever. Historically, the invocation of these remedies was anathema to American courts. But increasingly, they have contemplated the possibility of extending the life of charitable trusts through application of these doctrines. In many ways, the evolution of these doctrines is owing to the jurisprudence involving trusts created for the benefit of a religious congregation or charity. Yet, this connection and the implications of judicial decisions regarding the right to these remedies has not garnered academic attention until now.

In this study, I analyze the extent to which courts have applied these equitable remedies to religious purpose charitable trusts via an econometric analysis of a universe of cases with a published opinion from an American court from the nation’s founding through 2019. This study provides a novel analysis of these equitable remedies and the history of religious purpose charitable trusts along a considerable timeline in American history. First, it explores how the equitable remedies of cy près and deviation were shaped by and shaped the caselaw around religious purpose charitable trusts, elucidating the simultaneity of the recognition of each as valid remedy and trust. Second, it examines the possible bias of the courts in awarding these remedies to certain religious groups but not others, ultimately finding that trusts created for the benefit of Catholic churches and charities were deemed less worthy of these remedies by the courts, all else equal. These findings have implications not only for understanding the application of these equitable remedies more deeply but also for uncovering the implicit and overt bias of the courts in cases where it has no actual basis.

Abstract

Student loan servicers are the face of the U.S. student loan system, and they are not well-liked. Using the Consumer Financial Protection Bureau’s (the CFPB) consumer complaint database, we study borrower perceptions of the student loan system. We qualitatively analyzed a sample of complaint narratives drawn from every student loan complaint ever filed with the CFPB. Our analysis of these complaint narratives reveals clear patterns of discontent in four primary areas: 1) a mismatch between ability to repay and repayment options, including problems with forbearance, deferments, the public service loan forgiveness program, income-driven repayment plans, and loan cancellation options; 2) customer service, including sudden and unexplained changes in payment obligations, 3) inappropriate payment processing, such as misapplying payments; and 4) unauthorized loans or outright scams. The first issue was, by far, the most common. Our results high-light areas where better regulation, whether through contract with the government, ex ante supervision by regulators, or ex post lawsuits in court, has the potential to improve the function of the student loan ecosystem.

Abstract

Universities are encouraged to undertake research through grants from government agencies, foundations, and other organizations. The Bayh-Dole Act reinforces this incentive structure by allowing universities to take ownership of the resultant patents. Included in these rights is the ability to generate income by licensing patents and bringing patent infringement lawsuits. Undoubtedly, exercising these rights to financially benefit the university is economically rational. But might such actions also impose a cost on the public despite the fact that these very patents arose from public research subsidies?

This study examines the relationship between a university’s research expenditures and its likelihood to litigate patent infringement claims. It finds that research expenditures increase litigation frequency, suggesting that universities may use funds earmarked for research and innovation on patent litigation. We argue that patent rights provided by the Bayh-Dole Act may motivate this phenomenon—which encourages universities to seek rents, rather than pursue innovation. Our study adds to the extant literature about firm behavior, describing universities as vertical integrators as well as horizontal coordinators. It further suggests that these coordinations inure to a university’s private benefit—but not necessarily the benefit of the public, for which universities are ostensibly organized.

Abstract

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field.

First, through deliberative historical analysis, I offer an in-depth look at the types of cases American courts have heard involving the use of cy près. This historical categorization and explication is itself unique and provides significant insight into the controversies that allowed the doctrine to evolve. Second, the application of empirical methods to examine the doctrine is groundbreaking. By holistically examining the data I collected, I have been able to discern three major themes. The passage of time yields a gradual but greater adoption of the use of the cy-près doctrine. The presence of reversionary, gift-over, or private interests renders the use of the cy-près doctrine less practicable. And finally, courts are overwhelmingly more likely to apply cy près in cases involving public charitable trusts, educational purpose trusts, and medical purpose trusts, even when controlling for other independent variables and typologies of charitable trusts. Last, fifty-state surveys are commonplace; yet, none exists for the doctrine of cy près. I was able to assemble such a survey that not only assisted me in conducting this research but will undoubtedly aid other researchers for years to come, which I have addended to this Article in the Appendix.

Abstract

This paper looks at consumer complaints about student loan lenders and servicers from the Consumer Financial Protection Bureau’s (CFPB’s) consumer complaint database. Using a novel dataset drawn from 30,678 complaints filed against 212 student loan companies, we analyze consumers’ subjective views about whether traditional or fintech student loan lenders and servicers provide a better customer experience. Overall, we find that consumers initiate far fewer complaints against fintech lenders than traditional lenders. But we find that fintech lenders are twenty-eight times more likely than traditional lenders to receive complaints for making confusing or misleading advertisements. Our data also show that complaints against fintech lenders or servicers have not risen in parallel with greater loan volume by those firms, despite the rising number of complaints being filed against traditional lenders and servicers, as those firms continue to dominate the market share of student loan lending and servicing. We consider various reasons for this difference, including whether this means fintech student loan companies are providing a better consumer experience.

Abstract

Despite recent signs of improvement, since 2010, law schools have faced declining enrollment and entering classes with lower predictors of success. At least partly as a result, the rates at which law school graduates pass the bar exam have declined and remain at historic lows. Yet, during this time, many schools have improved their graduates’ chances of success on the bar exam, and some schools have dramatically outperformed their predicted bar exam passage rates. Our study examines which schools do so and why.

We began our research by accounting for law schools’ incoming class credentials to predict an expected bar exam passage rate for each ABA-accredited law school. We then examined each law school’s aggregated performance on the bar exam tests for which its graduates sat based on relative and absolute performance, weighing the difficulty of each state’s bar exam. Through this analysis, we identified law schools that have consistently higher and lower first-time bar exam passage rates over a period of six years: 2014-2019. In addition to identifying overperforming law schools on the bar exam, our methodology is a novel contribution not only to the legal education literature but also to the quantitative methodological literature, given its unique tailoring of the classic value-added modeling design to the realities of the bar exam.

In the second phase of our research, we surveyed administrators at these overperforming and underperforming law schools, as well as law schools in the middle of the distribution, to qualitatively assesses how these law schools approach bar support and bar success of their students. Collectively, this research provides significant insight into how law schools are responding to recent negative trends in bar passage rates, validates successful approaches to mitigate this trend, and recommends a suite of options available to law schools seeking to improve their bar passage rate.