NONPROFIT & PHILANTHROPY LAW ABSTRACTS

"Narrative and Truth in Judicial Opinions: Corporate Charitable Giving Cases" Free Download
NYU School of Law, Public Law Research Paper No. 09-56

GEOFFREY P. MILLER, New York University - School of Law
Email:

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.

"Should Charitable Trust Enforcement Rights Be Assignable?" Free Download
Chicago-Kent Law Review, Forthcoming

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

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.

"Stealth Preemption: The I.R.S.'s Nonprofit Corporate Governance Initiative" Free Download
Virginia Tax Review, Forthcoming

JAMES FISHMAN, Pace University - School of Law
Email:

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.

^top

Solicitation of Abstracts

Nonprofit and Philanthropy Law publishes abstracts of draft working papers and accepted articles 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.

To submit your research to SSRN, log in to the SSRN User HeadQuarters, and click on the My Papers link on the left menu, and then click on Start New Submission at the top of the page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by:

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN SUBJECT MATTER EJOURNALS

A. MITCHELL POLINSKY
Stanford Law School, National Bureau of Economic Research (NBER)
Email: polinsky@stanford.edu

BERNARD S. BLACK
University of Texas at Austin - School of Law, McCombs School of Business, University of Texas at Austin, European Corporate Governance Institute (ECGI), Northwestern University - School of Law, Northwestern University - Kellogg School of Management
Email: bblack@law.utexas.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School
Email: rgilson@leland.stanford.edu

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

Advisory Board

Nonprofit & Philanthropy Law

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 D. 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 - School of Law

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