Thursday, March 1, 2007

Hershey Trust

Milton_hershey We talk a lot here at propertyprof about new cases to add to the property curriculum, like what case ought to be first, a Hawaii substitute for Pierson v. Post, how to teach environmental justice, and RLUIPA

I'm teaching an advanced wills and trusts class for the first time this semester and am more excited about it than any class I've taught in years--in part because it has a seminar-like enrollment and I'm able to have a conversation with the students in a way that is difficult in lecture classes.  I'm also excited, though, because we're doing a bunch of fun stuff.  Much is on charitable trusts, though I'm also incorporating a practical component.  Working with a couple of colleagues in our clinic, the students work on quieting title to land that was inherited years ago (and now has a bunch of co-tenants), as well as a bunch of related issues.  Suffice it to say, I'm really enjoying the experience.

A few weeks ago we talked about the Hershey Trust case.  I thought that would be a great way to begin, because it deals with a company near and dear to the heart of this Pennsylvania boy.  And also because it's such an unusual case.  Perhaps this post would go better over at Gerry W. Beyer's shop, but I'm so excited by the case and our discussion that I thought I'd talk a little about it here.

The case arose back in the fall of 2002 when the Hershey Trust Company--perhaps at the instigation of Pennsylvania Attorney General--decided that it ought to diversify and, thus, moved to sell its controlling interest in the Hershey Chocolate Company.  That, then, led to a request for a preliminary injunction by the Pennsylvania Attorney General, under its parens patria power.  Not surprisingly, the trial court granted a preliminary injunction (the harm of sale was enormous), which was affirmed by the Commonwealth Court (over a vigorous and thoughtful dissent).  (The trial court's opinion is reprinted in an appendix to the Commonwealth Court's opinion available here.)  What particularly interests me about this case was the assertion of some kind of public right in the trust.  And while I certainly understand that the A.G. has the authority to look out for the trust beneficiaries, I was somewhat surprised to see the assertion of the public's right in the Hershey Company.

Seems to me that this is a great example of Joseph Singer's Reliance Interest in Property in action--and that the case has a lot of possibilities for future assertion of public rights.  Or maybe not, given how even the trial court judge recognized how unusual it is to have a charitable trust, established by the person for whom the town is named, which owns the major business in the town.  And even more unusual to then have the trust contemplating selling its business, when there is no apparent need for the money.  Here's a thoughtful and balanced and brief analysis of the case.  There have been three law review pieces devoted to the case--one by Mark Sidel in the Pitt Law Review (available through hein online here),one  by Evelyn Brody in the Indiana Law Journal (available here) and one by Jennifer L. Komorowski in the William and Mary Law Review (available through hein online here).

Anyway, it may be hard to work that case into the first year property class; it's unusual to do that much with trusts in the first year class; I hope that casebook authors will at least think about noting it.  It's an important example of progressive property jurisprudence, I think.

The image of Milton Hershey is from the Hershey Company website.

Alfred L. Brophy
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