chapter  4
44 Pages

The Corrosion of the Discretionary Conception

ByNorman I. Silber

Courts previously interpreted nonprofit incorporation statutes to contain an invitation to judges to apply personal standards to protect public values. The negative implications of chartering the "wrong" nonprofit corporations had appeared to justify discretionary elements in the process. The competitive educational process, the professorate, and the experience on the law journals reinforced student understanding that student legal scholarship, especially first-rate law notes, could redirect legal doctrine and even rearrange the social order. In combination with the substantive education they were receiving about the nature of judicial behavior and judicial authority. The discretionary conception for chartering groups also conflicted with broadly held views about steps that were needed to advance democracy in modern America. By 1955, business corporations sponsored almost all television, radio, and newspaper communications. The problems with the discretionary model were nowhere as apparent to the public, and especially to college and law students, as in the civil rights movement.