Norman Silber's exploration of a near-century of jurisprudential subjectivity reveals an extraordinary hunger for uniformity in the conception of the public good. In 1961, the New York Court of Appeals effectively ended the practice of substantive judicial review of nonprofit charters when it ordered the lower court to approve the articles of a white supremacist group. In the end, judicial discretion over charity incorporation fell during the general social rebellion against orthodoxy, the rise of advocacy and identity groups (notably the NAACP), the legal-process reform against ad-hoc judicial rulings in favor of administrative deliberation and consistency, and the reconception of property rights to include government licenses. The great irony that Professor Silber observes is that the corporate form no longer was the bane of liberals, but rather their salvation: as his book is titled, a 'corporate form of freedom.'
As Professor Silber's study shows, we can add the act of obtaining nonprofit corporate status to the list of once-hotly-debated legal issues that no longer trouble us, but whose ghostly outlines remain. To the perplexity of law students, corporate statutes continue to explicitly grant perpetual life, the right to acquire and alienate property, and the power to sue and be sued. Going forward, the legal system will concern itself more with the harder questions of regulating charitable activity, and less with how charitable activity is organized.
"The Twilight of Organizational Form for Charity: Musings on Norman Silber, A Corporate Form of Freedom: The Emergence of the Modern Nonprofit Sector,"
Hofstra Law Review: Vol. 30
, Article 4.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss4/4