NONPROFIT & PHILANTHROPY LAW eJOURNAL

"Long Day's Journey: The Charities Act 2009 and Recent Developments in Irish Charity Law" Free Download
Charity Law and Practice Review, Forthcoming
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 10

OONAGH B. BREEN, UCD
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It is now twelve years since the Irish Government committed in its Agreed Programme for Government to the introduction of a modern statutory framework for the regulation of Irish charities. Twelve years on, in 2014, the promise of reform to ensure “greater accountability and to protect against abuse of charitable status and fraud . . . [and increased] transparency in the sector has never been more necessary and yet still remains to be delivered. Despite the passage of the Charities Act 2009, its non-implementation has created a regulatory void into which allegations of charity maladministration and misfeasance have filled the public consciousness.

In his seminal work on the formation of public policy, John Kingdon provides a persuasive theory to explain the opening, operation and outcomes of so-called ‘policy windows.’ According to Kingdon, at any given time, a ‘problem stream’ exists representing all the issues that are wrong in a given system. Running (often) parallel to the problem stream will be a ‘solution stream’ containing all of those suggested fixes to make a system work better. It is only when there is a convergence of those two streams within a third ‘political stream’ that policy change occurs. The nature of the political stream within which this convergence occurs can take many forms. In the words of Kingdon, it can comprise “public mood, pressure group campaigns, election results, partisan or ideological distributions in Congress and changes of administration.? The collision of problem and solution streams within this political stream results in the temporary opening of a policy window, allowing policy change to occur. The form of such resultant change may be shaped further by coincidental influences or agenda issues hovering in the vicinity of the window which attach themselves to the coat tails of the newly minted policy outcome. This conception of the policymaking process is useful, providing as it does some insight into how certain policy solutions come to be expectations or have other unintended consequences.

In an Irish context, Kingdon’s framework provides a useful lens through which to analyse the ‘fits and starts’ approach to charity law reform. Against the backdrop of the recent revelations concerning the Central Remedial Clinic and the Rehab Group charities and the catalytic effect of these scandals on the Irish charity sector and charity regulation more generally, this article reviews the current progress in the implementation of the Charities Act 2009, recent moves towards the establishment of the long awaited Charities Regulatory Authority and the prospects and challenges for better charity governance ahead.

Part I of this article reviews the existing Irish ‘problem’ and ‘solution’ streams in the context of charity regulation and outlines the political catalysts that are now instrumental in driving reform. Part II outlines the pending changes to be introduced over the coming months and the implementation challenges that will face the new Charities Regulator. Part III attempts to align the recent shortfalls in charity governance with the forthcoming statutory requirements and assesses whether the policy changes that the public are so desperately seeking will be delivered by the much anticipated commencement of the Charities Act 2009.

"What Went Wrong: Prudent Management of Endowment Funds and Imprudent Endowment Investing Policies" Free Download
Journal of College and University Law, Vol. 40, No. 2, 2014

JAMES FISHMAN, Pace University - School of Law
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Most colleges and universities of all sizes have an endowment, a fund that provides a stream of income and maintains the corpus of the fund in perpetuity. Organizations with large endowments, such as colleges, universities, and private foundations, all finance a significant part of their operations through the return received from the investment of this capital. This article examines the legal framework for endowment investing, endowment investing policies, their evolution to more sophisticated and riskier strategies, and the consequences evinced during the financial crisis of 2008 and beyond. It traces the approaches to endowment investing and chronicles the rise and, if not the fall, the challenges to modern portfolio management. It examines the impact of endowment losses on colleges and universities and their constituencies, as well as the problem of trustee deference to boards' investment committees. This article concludes that universities have learned little from the financial crisis and are more invested in illiquid, nontransparent assets than before the financial crisis. Finally, this article recommends the establishment of board level risk management committees to evaluate endowment investing policies.

"Signaling Responsibility, Deflecting Controversy: Strategic and Institutional Influences on the Charitable Giving of Corporate Foundations in the Health Sector" Free Download
“Signaling Responsibility, Deflecting Controversy: Strategic and Institutional Influences on the Charitable Giving of Corporate Foundations in the Health Sector.? Research in Political Sociology 21: 181-214.

EDWARD T. WALKER, University of California, Los Angeles (UCLA) - Department of Sociology
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Corporate foundations – entities established to regularize corporate giving at an arm’s length removed from the firm – command substantial resources, root companies in the nonprofit sectors of their host communities, indirectly augment perceptions of corporate responsibility, and help firms to deflect controversies in an attentive global media environment. Despite these important roles, relatively little research has examined the institutional and strategic factors that influence such proximate charitable giving by firms. Using systematic data on foundations linked to S&P 3,000 firms in the health sector – a growing domain in which public trust in high-stakes products and services is critical – fixed-effects models illustrate the primary role of network influences on giving: corporate foundations give substantially more in years following higher contributions by other (non-corporate) foundations in the health sector in a firm’s headquarters locality and also following increased contributions by industry peers through their corporate foundations. Giving also appears to reflect strategic reputational concerns, in that foundation contributions increase significantly following controversies associated with the corporate parent’s products and/or services. By contrast, giving tends to decline as the presence of outside directors on a firm’s board increases, as well as when firms carry heavier debt loads. Combined, these findings suggest that corporate foundations serve as a strategic proxy for the firm, reflecting both the firm’s position in community and inter-firm networks while also mitigating the threat of reputational challenges.

"'Scarcely a Vestige of Antiquity Remains': Evaluating the Role of Preservation Easements in Protecting Historic Religious Architecture" Free Download
Environmental Law Reporter, Vol. 44, No. 10808, 2014

JESS R. PHELPS, USDA
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Preservation of historic religious architecture has been one of the most controversial areas of regulatory preservation activity. Although regulatory options remain constitutionally permissible, efforts to protect historic religious properties have been limited by legislation and lack of political will. One alternative source of preservation intervention, however, has largely escaped notice - a quiet expansion in the use of preservation easements to protect significant historic religious architecture. This Article evaluates this expansion, providing the first meaningful analysis of how preservation easements protecting historic religious structures have attempted to balance preservation and religious freedom concerns, and assessing the relative success of these efforts to date.

"Universal Values, Foreign Money: The Political Economy of Local Human Rights Organizations" Free Download

JAMES RON, University of Minnesota - Twin Cities, Center for Research and Teaching of Economics (CIDE) - Division of International Studies
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ARCHANA PANDYA, OpenGlobalRights, University of Minnesota - Twin Cities
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Local human rights organizations (LHROs) are key domestic and transnational actors. They modify, diffuse, and promote human rights norms, and pressure governments to implement their international commitments. Although there are now hundreds of LHROs worldwide, most are funded by international, rather than local, sources. Surveys, however, show substantial popular support for human rights ideals, as well as strong public trust in LHROs. Why, then, do LHROs not raise more funds locally? This funding pattern is more easily explained in politically repressive environments, where potential local donors fear government retaliation. And even in less repressive contexts, LHROs working with highly stigmatized groups may find publics unwilling to provide support. Neither of these explanations, however, accounts for LHRO reliance on international funds in other circumstances. We interviewed 233 LHRO leaders and key informants from 60 countries, and conducted representative public polls in five countries. Based on this and other data, we conclude that LHRO funding is shaped by international and domestic philanthropic logics of appropriateness. International norm entrepreneurs successfully promoted human rights throughout the development assistance community during the 1990s, and as a result, Northern donors now supply some nine billion USD annually for human rights promotion in the global South and East. LHROs in those regions of the world, however, have not attempted the same kind of philanthropic transformation at the local level. Instead, they have understandably followed the path of least resistance: international aid. To boost LHROs’ local fund raising capacity, international donors must provide with new and different incentives, and help LHROs develop their local fund raising capacities.

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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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Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

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Advisory Board

Nonprofit & Philanthropy Law eJournal

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

EVELYN BRODY
Professor of Law, Chicago-Kent College of Law

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

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

DARRYLL K. JONES
Professor of Law, Stetson University College of Law

BEVERLY I. MORAN
Professor of Law and Sociology, Vanderbilt University - Law School

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

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