GEOFFREY P. MILLER, New York University - School of Law
Email: geoffrey.miller@nyu.edu

Judicial opinions map events into narrative. Errors in mapping are inevitable but are exacerbated when the adversary system breaks down. This paper explores these problems of narrative distortion through an analysis of corporate charitable giving cases: Dodge v. Ford Motor Co., A.P. Smith Co. v. Barlow, and Shlensky v. Wrigley. Each of these cases contains evidence of significant distortion in the mapping process. In Dodge, the distortion was due to the fact that neither party wanted to acknowledge what was really going on. In A.P. Smith, the evidence suggests that the litigation was collusive and that all parties, including the judge, were in on the scam. In Wrigley, the opinion may have had more to do with Chicago politics than with the accurate presentation of the facts. I conclude with tentative thoughts about the implications of narrative distortion in American law.

JOSHUA C. TATE, Southern Methodist University (SMU) - Dedman School of Law
Email: jctate@smu.edu

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.� This Article addresses the question of whether, and to what extent, a settlor’s right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if they are spelled out in the trust instrument? How many potential assignees may the settlor properly select? Once the right has been assigned to a third party, should that third party also retain the right of assignment, so that the right can potentially be passed from one individual to the next in perpetuity? What would be the ramifications of granting a right of assignment to the settlor’s personal representative? Any resolution of these issues must protect the interests of charitable beneficiaries, but also be fair to trustees and not overwhelm the courts with frivolous litigation.

JAMES FISHMAN, Pace University - School of Law
Email: jfishman@law.pace.edu

The Internal Revenue Service, the primary federal regulator of charities, has initiated a corporate governance initiative. The intervention by the Internal Revenue Service into an area traditionally the preserve of state nonprofit corporate law has little relationship to issues of tax compliance. This corporate governance initiative has been accomplished in the face of IRS acknowledgement that it has no statutory authority relating to these issues. Yet, the power of the Service to recognize tax exempt status and the method it has used to ensure it vision of correct corporate governance practices through a series of questions when an organization applies for recognition of tax exempt status and on the annual information return, the latter available on the Internet for public scrutiny, has resulted in substantial compliance. This article casts a skeptical eye on the IRS’s corporate governance initiative from the perspective of federalism. Its thesis is that the Service’s regulation of nonprofit corporate governance is a kind of stealth preemption, which undermines the principles of our federal system. The issues of preemption described herein relating to the IRS’s corporate governance initiative are at least one degree separated from traditional constitutional analysis. There is no question of an agency regulation, pursuant to direct or indirect Congressional authorization to supersede state legislation. Essentially, the Service has interpreted the scope of its own jurisdiction, expanding its authority at the expense of the states. The article argues the corporate governance initiative is inefficient from a cost/benefit basis, and diverts nonprofit organizations from their charitable mission. At a time when many charities are struggling to survive and maintain their level of activity, when there are pressures to reduce administrative expenses, the corporate governance initiative is an unwelcome, unnecessary distraction. It increases administrative costs, diverts boards and staff from the focus on the charity’s mission, and has no empirically verified relationship to tax compliance.