Forever is a Long Time: Charitable Perpetuity Maintaining the Nonprofit Industrial Complex

This paper uses critical legal studies (CLS) and critical nonprofit studies (CNS) to examine the charitable exception to the Rule Against Perpetuities (RAP). In the middle-ages, RAP sought to lessen the worry that the so-called “dead-hand” of landholders would exert outsized influence over subsequent generations. RAP forbids people from putting conditions on property transfers unless those conditions expire no later than 21 years after a life in being, but an exception is made for charities. The exception exists because charities are assumed to be almost always beneficial to society; an assumption CLS and CNS question. By questioning such assumptions about the charitable exception to RAP, we reveal the extent to which the nonprofit sector is deliberately constructed to benefit the powerful, and the extent to which it can be deliberately remade.