Table of Contents

Transactional Legal Services, Triage, and Access to Justice

Paul R. Tremblay, Boston College - Law School

Ending the Sweetheart Deal between Big-Time College Sports and the Tax System

Richard Schmalbeck, Duke University School of Law

For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance

Fran Quigley, Indiana University Robert H. McKinney School of Law

Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another

Lionel Smith, McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law, King's College London – The Dickson Poon School of Law


NONPROFIT & PHILANTHROPY LAW eJOURNAL

"Transactional Legal Services, Triage, and Access to Justice" Free Download
Washington University Journal of Law and Policy, Vol. 48, 2015
Boston College Law School Legal Studies Research Paper No. 343

PAUL R. TREMBLAY, Boston College - Law School
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The increasing popularity in recent years of free transactional legal services to businesses and entrepreneurs has triggered questions about whether that phenomenon is altogether a good thing, given the increasing and competing need for legal services for low-income individuals and families in distress. This Article, prepared for a symposium at Washington University School of Law, offers a beginning and tentative assessment of that topic. The Article reviews the typically short-term benefits that accompany conventional litigation-based legal services and compares that outcome to the more contingent, longer-term benefits that could result from transactional legal services on behalf of emerging businesses. It acknowledges recent research arguing that entrepreneurship has only a weak record of success as a poverty-fighting strategy, while more collectivist transactional projects have seemingly better chances of effecting meaningful change. But it concludes — again, tentatively — that assistance to entrepreneurs, particularly those from underserved communities, at times can serve many of the same purposes as much of the legal work offered by traditional pro bono and legal services providers.

"Ending the Sweetheart Deal between Big-Time College Sports and the Tax System" Free Download
Duke Law School Public Law & Legal Theory Paper

RICHARD SCHMALBECK, Duke University School of Law
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This paper was prepared for the annual conference of the National Center for Philanthropy and Law, held at the NYU Law School, held October 24-25, 2013. The overall topic was “Tax Issues Affecting Colleges and Universities,? and I was asked to address specifically those issues relating to athletics. This paper considers two specific issues that have in common only that they involve college sports, and are plagued by egregiously bad, (in this case, egregiously generous), tax treatment: the failure of the IRS to regard any part of the revenue from college sports as unrelated business income, and the choice by Congress to allow taxpayers to deduct 80% of contributions that they make to colleges or their “booster clubs,? even when those contributions entitle the donors to special privileges in purchasing tickets to college athletic events.

Most readers are probably familiar with the general rules regarding charitable contributions deductions, but a word about the unrelated business income tax may be helpful. An organization may qualify (or continue to qualify) as a tax-exempt organization, eligible to receive tax-deductible contributions, if its activities are primarily charitable. However, if the organization regularly carries on trade or business activities that are unrelated to its exempt purpose, the income from those activities is subject to federal income taxation at the same rates applicable to for-profit corporations. Although those rates are low for small businesses (those earning less than $75,000 per year), corporate earnings in excess of that amount are taxed at a rate of 34% on up to ten million dollars of income, and 35% beyond that amount. The unrelated business income tax raises very little revenue, but is thought to have an in terrorem effect, discouraging nonprofit organizations from engaging in unrelated business activities. While the unrelated business tax exists primarily because of Congressional concerns about unfair competition with for-profit businesses, a better description of its actual effect is that it discourages nonprofit organizations from pursuit of business activities that do not further any exempt purpose.

"For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance" Free Download
Indiana University Robert H. McKinney School of Law Research Paper No. 2015-7

FRAN QUIGLEY, Indiana University Robert H. McKinney School of Law
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The U.S. approach to addressing economic and social needs strongly favors individual and corporate charity over the establishment and enforcement of economic and social rights. This charity/justice imbalance has a severely negative impact on the nation’s poor, who despite the overall U.S. wealth struggle with inadequate access to healthcare, housing, and nutrition. This article suggests a two-part approach for remedying the charity/justice imbalance in the U.S.: First, the U.S. should eliminate the charitable tax deduction, a policy creation that does not effectively address economic and social needs, forces an inequitable poverty relief and tax burden on the middle class, and lulls the nation into a false sense of complacency about its poverty crisis. Second, the U.S. should replace the deduction with ratification of the International Covenant on Economic, Social and Cultural Rights. This two-part process would reverse the U.S. legacy of avoiding enforceable commitments to economic and social rights. Charity would take a step back; justice a step forward.

"Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another" Free Download
(2014), 130 Law Quarterly Review 608-634

LIONEL SMITH, McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law, King's College London – The Dickson Poon School of Law
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In this article, I present a theory of fiduciary relationships that seeks to address both the justification and the content of fiduciary duties. It will also address the question of remedies, which sheds important and neglected light on the question why this part of the law has the shape that it does. All three aspects — the reasons we impose these duties, what these duties require, and the remedies associated with them — are linked to one another in a conceptual unity that reveals the interlocking aspects of private law’s concern with relationships in which one person is empowered to exercise decision-making authority on behalf of another.

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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