"Libertarianism and the Charitable Tax Subsidies" Free Download
Boston College Law Review, Vol. 56, September 2015
San Diego Legal Studies Paper No. 15-189

MIRANDA PERRY FLEISCHER, University of San Diego School of Law

Tax scholarship is largely silent about the interaction between libertarian principles and the structure of our tax system. If all taxation is indeed slavery, as Nozick suggested, why bother analyzing libertarianism for insights into our tax system? This dismissal, however, ignores the diversity of libertarian thought. To that end, this Article mines the nuances of libertarian theory for insights into one feature of our tax system: the charitable tax subsidies.

One strand of libertarianism suggests that the charitable tax subsidies are in and of themselves illegitimate. Yet several other understandings of libertarianism see a role for the state to engage in a varying amount of redistribution or to provide varying amounts of public goods. One reading of minimal state libertarianism, for example, suggests that only charities that help the very poor should be subsidized, while another implies that only organizations assisting individuals who have been harmed by past injustices should be subsidized. A strict reading of classical liberalism suggests that groups providing public goods should be subsidized regardless of whether they assist the poor, but would likely narrow the definition of what counts as a public good suffering from market failure. Only a more lenient interpretation of classical liberalism that conceives of a vibrant nonprofit sector as a public good in and of itself and an expansive reading of left-libertarianism support something akin to our current structure, in which elite cultural institutions such as the opera are subsidized even if they provide no free or discounted services to the poor.

"Moving Targets: Religious Freedom, Hobby Lobby, and the Future of LGBT Rights" Free Download
Alabama Civil Rights & Civil Liberties Law Review (Vol. 7, Issue #1, Fall, 2015), as part of a Symposium on "Anti-Discrimination Law & Policy after Hobby Lobby", Forthcoming
GWU Law School Public Law Research Paper No. 2015-15
GWU Legal Studies Research Paper No. 2015-15

IRA C. LUPU, George Washington University Law School

The imminence of nationwide marriage equality in mid-2015, close on the heels of the Hobby Lobby decision, suggests that LGBT rights and religious freedom are on a collision course. This paper is an attempt to navigate the spaces where such a collision is most likely.

Parts I and II both focus on federal law, where Hobby Lobby’s impact will be most immediate and direct. Part I sketches current LGBT rights under federal law, and then analyzes potential conflicts between that body of law and the federal Religious Freedom Restoration Act. Part II focuses on the ways in which Hobby Lobby is likely to color the conversation, legal and political, about expanding federal law protections against discrimination based on sexual orientation and gender identity. Part II includes consideration of arguments about accommodation of religious non-profit organizations.

Part III turns to state law, where the recent battles in Indiana, Arkansas, and elsewhere have been nationally explosive. In current state law, the geographical disconnect between religious freedom principles and LGBT rights is significant. Where state-based rights of religious freedom appear to be strong, LGBT rights are frequently weak; where statewide LGBT rights are strongest, religious exemption rights tend to be weak.

Part III.A. addresses current legal circumstances, including ongoing cases of vendors who refuse to serve same sex weddings, in light of this disconnect. Part III.B. analyzes recent and anticipated legislative fights, and the role that Hobby Lobby has played and will continue to play within those conflicts. Part III.B. includes the policy choices involved with respect to religious non-profit entities. Part III.C. focuses on the adjudicative battles that lie ahead between LGBT rights and religious freedom, the potential significance of Hobby Lobby for those contests, and the reasons that religious freedom claims in the commercial context are unlikely to succeed.

"Pay It Forward? Law and the Problem of Restricted-Spending Philanthropy" Free Download
Washington University Law Review, 2016, Forthcoming

BRIAN D. GALLE, Boston College Law School

American foundations and other philanthropic giving entities hold about $1 trillion in investment assets, and that figure continues to grow every year. Even as urgent contemporary needs go unmet, philanthropic organizations spend only a tiny fraction of their wealth each year, mostly due to restrictive terms in contracts between donors and firms limiting the rate at which donations can be distributed. Law has played a critical role in underwriting and encouraging this build-up of philanthropic wealth. For instance, contributors can typically take a full tax deduction for the value of their contribution today, no matter when the foundation spends their money, and pay no tax on the investment earnings the organization reaps in the meantime.

What, if anything, justifies public support for “restricted spending? charity? This Article offers the first comprehensive assessment of that question, and supplies original empirical evidence on several key aspects of it. I argue that restricted spending sacrifices crucial information, introduces unnecessary agency costs, and on average transfers funds to times when they are less useful. While there is a place for large and long-lived philanthropic organizations in American society, that role does not require public support for restricted spending. As long as foundations can demonstrate their value to new donors, they will continue to thrive. I therefore set out a series of policy recommendations aimed at better reconciling nonprofit law and the principles that justify it.

I support my claims with new evidence drawn from a data set of over 200,000 firm-year observations of private foundations. For example, I find that foundations earn about twice as much money per year as in earlier studies funded by foundation-industry lobbyists, and that they are growing three times faster than those earlier studies suggest. This finding implies that law could require a much higher annual “payout? from foundations. I also find that new laws introduced in about a dozen states since 2006 have significantly slowed foundation spending in the enacting states. And I offer simulations of several policy proposals for making foundations more effective at fighting recessions.

"Strengthening Charity Law: Replacing Media Oversight with Advance Rulings for Nonprofit Fiduciaries" Free Download
Tulane Law Review, Vol. 89, No. 3, 2015

LINDA SUGIN, Fordham University School of Law

This Article considers three urgent challenges facing the charitable community and its state regulators: too little fiduciary duty law for nonprofits, the rise of media enforcement of wrongdoing in charities, and an inherent tension in the state’s dual role as enforcer and protector of the nonprofit sector. It analyzes whether the scarcity of law is really a problem by comparing nonprofit organizations with business organizations and concludes that charities lack the self-enforcement mechanisms of businesses and therefore need more government guidance. It evaluates whether the media has made governmental supervision obsolete and expresses skepticism about the press displacing state oversight. The solution presented, an advance-ruling procedure for fiduciary duty questions, proposes that states shift their focus from better enforcement against wrongdoers ex post to better charity governance ex ante by devoting more attention and resources to assisting well-meaning charity directors in carrying out their fiduciary obligations.


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.

Editor: David A. Brennen, University of Kentucky


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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)

Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

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