Tuesday, October 6, 2009
Lloyd Mayer (Notre Dame Law School) and Brendan Wilson (Akin Gump) Post "Regulating Philanthropy in the 21st Century: An Institutional Choice Analysis"
Professor Lloyd Mayer of Notre Dame Law School and Attorney Brendan Wilson of Akin Gump have teamed up to post their draft article on regulating charity governance on SSRN's Nonprofit and Philanthropy Law Abstracting Journal. The article is entitled "Regulating Philanthropy in the 21st Century: An Institutional Choice Analysis." Here is the abstract:
For more than fifty years scholars, practitioners, and government officials have debated whether the federal government, the state governments, or the charitable sector itself can best ensure that charitable organization leaders fulfill their fiduciary duties. The dramatic growth of this sector, recent highly publicized governance scandals, and a push in Congress and the IRS for more federal involvement in this area have now brought this issue to a head. This article lays a foundation for resolving the dispute by developing an institutional choice framework for considering and comparing the various available options. Applying that framework, the article concludes that the best regulators of charity governance would most likely be state-level government agencies that work with but have a limited degree of independent from the state attorneys general. The article also determines that the best way to ensure adoption of this institutional choice – and limit potential weaknesses – is for the federal government to use a portion of the already existing private foundation investment income tax to provide funding for such agencies.