Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, October 30, 2006

Choice of Entity Issues

Douglas Branson (W. Edward Sell Professor of Business Law – University of Pittsburgh School of Law) has posted his article Corporate Governance: Indeterminate or Schizophrenic Choices in the Form and Operation of Legal Entities on SSRN.

Here is the abstract:

Business, mutual benefit and charitable entities often choose a sub-optimal legal form. Alternatively, entities choose one form, only to operate as another, often running afoul of the law, at least historically. A trust may operate as if it were a partnership when, in reality, a corporate governance structure would suit it better. At the extreme, corporations under the Alaska Native Claims Settlement Act, for example, have acted as corporations, charities, political subdivisions, trusts, or tribes of Native Americans, as time passes and their needs change. Prompted by a book (Samuel King & Randall W. Roth, Broken Trust (2006)) chronicling mismanagement at the United States's largest charitable trust, the Bishop Estate, whose trustees acted as though they were partners of a small firm, this article inquires into this common but overlooked matter. One conclusion is that differences in the law applicable to differing legal forms have narrowed. Another is that corporate governance best practices may in reality be governance best practices, as suitable for a large trust, charity, or mutual benefit corporation as for a business entity.


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