"Nonprofits, Speech, and Unconstitutional Conditions" Free Download
Connecticut Law Review, Vol. 46, 2014, Forthcoming
Notre Dame Legal Studies Paper No. 1407

LLOYD HITOSHI MAYER, Notre Dame Law School

This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding received by nonprofits and demonstrates the application of this framework by applying it to the disputes that have reached the Supreme Court in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government – whether direct or indirect – is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech (or silence) absent a compelling governmental interest in doing so and then only if the purchase is done in a manner that is narrowly tailored to serve that interest.

This Article’s approach contrasts with the current approach of the Court to this area, which in its various attempts to resolve disputes centering on such conditions has left courts, governments, and private parties understandably confused about the applicable constitutional standard. This confusion stems in large part from the Court’s tendency to subtly recharacterize its earlier decisions, which unnecessarily throws into doubt the reasoning and previously settled readings of those cases. Most recently, in Agency for International Development v. Alliance for Open Society International opinion, the Court both muddied the waters further and also moved away from the correct application of the unconstitutional conditions doctrine in this context. In that decision, the Court, without acknowledgement, shifted from its longstanding focus on whether the government funding was for government speech to instead focus on whether the speech affected by the condition was within or outside of the program funded by the government, thereby opening the door to significantly more burdensome limits on speech by recipients of government funding.

This framework also has two broader ramifications. First, it may prove useful for resolving constitutional disputes relating to other speech-related conditions, such as campaign finance limits tied to government funding or other government benefits. Second, it demonstrates that by drawing on the extensive unconstitutional conditions literature to create an approach customized to a particular constitutional context it may be possible to salvage the unconstitutional conditions doctrine even given its widely acknowledged incoherence. Salvaging the doctrine is particularly important in a world where government benefits both permeate almost every type of activity and are often accompanied by constitutionally suspect restrictions.

"Relational Sanctions against Non-Profit Organizations: Why a Selfish Entrepreneur Would Organize a Non-Profit Enterprise" Free Download
Virginia Law and Economics Research Paper No. 2014-07
Virginia Public Law and Legal Theory Research Paper No. 2014-19

ALBERT H. CHOI, University of Virginia School of Law

This paper examines how relational sanctions can affect organizational choice. An entrepreneur can set up either a for-profit or a non-profit organization in selling product or service to customers. While the entrepreneur can distribute all the profits from a for-profit organization to herself, she faces a non-distribution constraint with respect to a non-profit organization and has to convert a non-profit firm’s profits into private benefits (such as perquisites). Because realized quality is not verifiable and is subject to error, customers, in equilibrium, impose relational sanctions against the firm when low quality product or service is delivered. With the relational sanctions, for-profit and non-profit firms provide the same (expected) level of quality to the consumers. The size of the relational sanctions and the entrepreneur’s preference over the organizational form differ, however. When converting profit into private benefits becomes more difficult at the margin, i.e., conversion exhibits decreasing returns to scale, because temptation to shirk from investing in quality gets weaker (but still positive), a non-profit organization is subject to shorter (less severe) relational sanctions. Shorter relational sanctions, in turn, can make a non-profit organization’s long-run return to the entrepreneur (in terms of private benefits) higher than that from a for-profit organization (in terms of distributed profits). Hence, even if the entrepreneur has no altruistic motive and cares only about the returns she derives from the organization, she may still choose a non-profit form. The entrepreneur is more likely to organize a non-profit firm (1) as the correlation between investment and quality gets weaker; (2) as the non-distribution constraint gets stronger at the margin; (3) when a for-profit firm is subject to tax; or (4) and as the profit margin gets smaller due, for instance, to stronger competition in the market.

"Perpetual Conservation Easements in the 21st Century: What Have We Learned and Where Should We Go from Here?" Free Download
Utah Law Review, Vol. 3, p. 687, 2013
University of Utah College of Law Research Paper No. 62

NANCY A. MCLAUGHLIN, University of Utah S.J. Quinney College of Law

The public is investing billions of dollars in conservation easements, which now protect an estimated 40 million acres throughout the United States. But all is not well. Uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of conservation easements as a land protection tool. This short article is part of a series of articles published in the law review discussing conservation easements, with a focus on what we have learned thus far and where we should go from here. This article sets the stage by describing the dramatic growth in the use of conservation easements, the various laws that impact easement creation and administration, a timeline of important legal and policy developments, and the recent surprising lack of certainty and consensus regarding what it means to protect land “in perpetuity? or “forever? with a conservation easement. The article concludes by discussing how the perpetuity issue might be productively resolved.


About this eJournal

This eJournal distributes working and accepted paper abstracts in the fields of nonprofit law and policy, philanthropy law and policy and related areas of scholarship. Thus, drafts and articles that concern nonprofit corporations, charities, charitable corporations, charitable organizations, charitable donations, charitable foundations, charitable fundraising, charitable solicitation, charitable trusts, philanthropy, private foundations, nongovernmental organizations, tax-exempt organizations, tax-exempt corporations, private clubs, membership clubs and similar topics are appropriate for this journal.


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Advisory Board

Nonprofit & Philanthropy Law eJournal

John E. Anderson Professor of Tax Law, Associate Dean for Academic Programs, Loyola Law School Los Angeles

Professor of Law, Chicago-Kent College of Law

Albert E. Jenner, Jr. Professor of Law, University of Illinois College of Law

University Professor of Philanthropy and the Law, Director - National Center on Philanthropy and the Law, New York University School of Law

Professor of Law, Stetson University College of Law

Professor of Law and Sociology, Vanderbilt University - Law School

Professor of Law Emeritus, University of California, Hastings College of the Law

Professor of Law, University of Florida - Fredric G. Levin College of Law