Monday, September 26, 2016

Rushton on Nonprofit Museums


Michael J. Rushton (Indiana University Bloomington - School of Public & Environmental Affairs) has posted Should Public and Nonprofit Museums Have Free Admission? on SSRN with the following abstract:

A common pricing structure for American art museums is to offer a choice between an admission fee for a single visit, and the purchase of an annual membership that would allow the member an unlimited number of visits with no additional charge. This paper evaluates this particular method of museum pricing in terms of efficiency and equity. It concludes, drawing from the economic analysis of two-part pricing, that there is a strong rationale for the membership model, and that this is so even in cases where the museum experiences an increase in unrestricted endowment such that “free” membership would be financially sustainable.

--Eric C. Chaffee

September 26, 2016 in Publications – Articles | Permalink | Comments (0)

Thursday, September 22, 2016

Fei, Hines, Horwitz: Are PILOTs Property Taxes for Nonprofits?

Fan FeiJames HinesJill Horwitz


Fan Fei
(Michigan), James R. Hines Jr. (Michigan), and Jill R. Horwitz (UCLA) have published Are PILOTs Property Taxes for Nonprofits?, 94 Journal of Urban Economics 109 (2016). This is a significantly revised version of the paper with the same title that they posted on SSRN last year. Here is the abstract:

Nonprofit charitable organizations are exempt from most taxes, including local property taxes, but U.S. cities and towns increasingly request that nonprofits make payments in lieu of taxes (known as PILOTs). Strictly speaking, PILOTs are voluntary, though nonprofits may feel pressure to make them, particularly in high-tax communities. Evidence from Massachusetts indicates that PILOT rates, measured as ratios of payments to the value of local tax-exempt property, are higher in towns with higher property tax rates: a one percentage point higher property tax rate is associated with a 0.2 percentage point higher PILOT rate. PILOTs appear to discourage nonprofit activity: a one percentage point higher PILOT rate is associated with 0.8% lower real property ownership by local nonprofits, 0.2% lower total assets, and 0.2% lower revenues of local nonprofits. These patterns are consistent with voluntary PILOTs acting in a manner similar to low-rate, compulsory real estate taxes.

Lloyd Mayer

September 22, 2016 in Publications – Articles | Permalink | Comments (0)

Thursday, September 15, 2016

Chicago-Kent Law Review Publishes Symposium: Nonprofit Oversight Under Siege

The Chicago-Kent Law Review has posted its Symposium Issue on Nonprofit Oversight Under Siege: Chicago Kent Law Review

Introduction
Dana Brakman Reiser, Brooklyn Law School
91 Chi.-Kent. L. Rev. 843 (2016).

Exile to Main Street: The I.R.S.’s Diminished Role in Overseeing Tax-Exempt Organizations
Evelyn Brody, IIT Chicago-Kent College of Law
Marcus Owens
91 Chi.-Kent. L. Rev. 859 (2016).

Politics, Disclosure, and State Law Solutions for 501(c)(4) Organizations
Linda Sugin, Fordham Law School
91 Chi.-Kent. L. Rev. 895 (2016).

Fragmented Oversight of Nonprofits in the United States: Does it Work? Can it Work?
Lloyd Hitoshi Mayer, Notre Dame Law School
91 Chi.-Kent. L. Rev. 937 (2016).

The Charity Commission for England and Wales: A Fine Example or Another Fine Mess?
Debra Morris, School of Law and Social Justice, Liverpool
91 Chi.-Kent. L. Rev. 965 (2016)

European Non-profit Oversight: The Case for Regulating From the Outside In
Oonagh B. Breen, Sutherland School of Law
91 Chi.-Kent. L. Rev. 991 (2016).

Australia – Two Political Narratives and One Charity Regulator Caught in the Middle
Myles McGregor-Lowndes, Queensland University of Technology
91 Chi.-Kent. L. Rev. 1021 (2016).

Reforming the Regulation of Political Advocacy by Charities: From Charity Under Siege to Charity Under Rescue?
Adam Parachin, Western University
91 Chi.-Kent. L. Rev. 1047 (2016).

Does Work Law Have a Future if the Labor Market Does Not?
Noah D. Zatz, UCLA School of Law
91 Chi.-Kent. L. Rev. 1081 (2016).

Looks like a fascinating set of articles and outstanding group of authors (including our own Lloyd Mayer)!

-JosephWMead

September 15, 2016 in Publications – Articles | Permalink | Comments (0)

Thursday, September 8, 2016

Thirty Years of Nonprofit Research: Scaling the Knowledge of the Field 1986-2015

Ji Ma (PhD student) and Assistant Professor Sara Konrath, both of Indiana University-Purdue University Indianapolis (IUPUI) - Center on Philanthropy, have posted their research paper, Thirty Years of Nonprofit Research: Scaling the Knowledge of the Field 1986-2015, to SSRN.  Below is the abstract for their paper:

This empirical study examines knowledge production between 1986 and 2015 in the research field of nonprofit and philanthropic studies using science mapping and network analysis. This is essential to understand the “Third Sector” better, which along with the business sector and government, forms and underpins the function of society at large.

Results suggest that scholars in this field have been actively generating a considerable amount of literature. The rapidly growing intellectual base suggests a solid backing for continuing development of this field as a new discipline. Knowledge produced in this field is not only growing in number, but also forming several main themes which have been actively developed since the mid-1980s – a signal of knowledge cohesion. Our findings are significant from numerous perspectives. The study provides empirical evidence for this field developing into a new discipline, and its future advancement faces a critical challenge: the lack of geographic and cultural diversity resulting from the domination of research taking place in the “Anglosphere.” This study also emphasizes the importance of new paradigms in mitigating the tension between theory and practice – a challenge commonly faced by academic disciplines.

Methodologically, our paper provides an example of applying network analysis and science mapping in studying the knowledge of a new social science field. Pedagogical implications, limitations, and future directions are also discussed.

TLH

September 8, 2016 in Publications – Articles | Permalink | Comments (0)

Friday, August 12, 2016

Breen: European Non-Profit Oversight

Oonagh BreenOonagh Breen (Dublin) has posted European Non-Profit Oversight: The Case for Regulating from the Outside In, 91 Chicago-Kent Law Review (forthcoming 2016). Here is the abstract:

When it comes to the regulation of non-profits, the European Commission experiences many of the same pressures and constraints faced by national charity regulators. It suffers, however, from an added disadvantage in that, arguably, it lacks jurisdictional competence to regulate non-profits qua non-profits. This article explores the consequences of the Commission’s unsuccessful attempt to secure the passage of its proposal for a European Foundation Statute (‘EFS’). Notwithstanding the European Council’s inability to muster the necessary Member State unanimity required to pass the proposal and its subsequent demise, the Commission is still dogged by the problems it identified as giving rise to the need for the EFS in the first instance. Against this background, Part I reviews the rationale for the EFS proposal, the political concerns that left it vulnerable to veto and the structural challenges faced by the Commission in legislating for non-profits at a European level. The argument is advanced that extant a purely functional approach, European regulation of nonprofits from ‘the inside out’ is difficult in the absence of a valid treaty basis.

Part II proceeds to examine recent NGO attempts to influence the Financial Action Task Force (‘FATF’) reform process (supported by the European Commission) and to demand a fairer process under FATF Recommendation 8 for dealing with NGOs. The European Commission’s role in assisting NGOs to bring pressure on the FATF to be more accountable and transparent in its dealings presents an interesting vignette of one regulator laying siege to another for the greater good of better non-profit oversight. Arguably, the Commission’s attempts at ‘regulating from the outside in’ has led to it demanding a higher level of transparency of the FATF than it has been willing to provide to NGOs itself in the past, while simultaneously enhancing Commission-NGO relations. The article concludes that it is now timely for the European Commission to be alert to the possibilities of regulating from the outside in on occasions when it may not be so possible to regulate from the inside out.

Lloyd Mayer

August 12, 2016 in International, Publications – Articles | Permalink | Comments (0)

Buckles: The Sexual Integrity of Religious Schools and Tax Exemption

JohnnyBucklesJohnny Rex Buckles (Houston) has posted The Sexual Integrity of Religious Schools and Tax Exemption on SSRN. Here is the abstract:

Many private universities and other schools adhere to religiously grounded codes of conduct that embrace heterosexual monogamy as the sole moral context for sexual relationships. The federal income tax exemption of these schools has been questioned following the recent Supreme Court opinion of Obergefell v. Hodges. In Obergefell, the Supreme Court held that the right to marry is a fundamental constitutional right that same-sex couples may exercise. The relevance of this decision to the federal tax status of private religious schools arises from another Supreme Court decision, Bob Jones University v. United States. The Court in Bob Jones held that two schools with racially discriminatory policies as to students were not entitled to exemption from federal income tax because the policies violate established public policy. The issue now is whether the sexual conduct policies of private religious schools violate the established public policy of the United States following Obergefell. After reviewing Bob Jones and surveying the application of the public policy doctrine by the IRS and the courts, this article argues that, regardless of the factual context of a controversy in which the IRS seeks to invoke Bob Jones to deny or revoke federal income tax exemption, the public policy doctrine should be narrowly construed. Applying a suggested framework for limiting the public policy doctrine coherently, this Article argues that schools maintaining sexual conduct policies that prohibit sexual activity inconsistent with their religiously informed, traditional view of marriage remain tax-exempt after Obergefell. Apart from the proposed framework, this Article further explains why Obergefell’s analytical approach, language and tone are inconsistent with applying Bob Jones to the disadvantage of religious schools that maintain sexual conduct policies.

Lloyd Mayer

August 12, 2016 in Publications – Articles | Permalink | Comments (0)

Galle: Corporate Compliance without Enforcement?

Galle-webBrian Galle (Georgetown) has posted Corporate Compliance without Enforcement?: Private Foundations and the Uniform Prudent Management of Institutional Funds Act on SSRN. Here is the abstract:

I examine the determinants of nonprofit corporate compliance with law using a large panel of over one million firm-years. Despite the almost total absence of any credible enforcement threat, I find widespread compliance. I exploit rolling state adoption of the Uniform Prudent Management of Institutional Funds Acts, which lifted some existing limits on firm spending, but which applied to some but not all firms within each state. This allows the use of triple-difference estimates that control for changes in local norms and economic conditions. Interacting the triple-difference factors with other predictors of compliance, I find no correlation between compliance and enforcement intensity, but some evidence that compliance is correlated with firm culture and reliance on accountants. I argue that my findings are among the first to discover compliance in the absence of a meaningful formal deterrence mechanism. Further, my findings have important implications for the governance of charitable organizations.

Lloyd Mayer

 

August 12, 2016 in Publications – Articles | Permalink | Comments (0)

Górski: The Case for Research on Regulatory Neutrality Toward Various Shades of Social Entrepreneurship

Jedrzej-gorski (1)Jędrzej Górski (The Chinese University of Hong Kong) has posted The Case for Research on Regulatory Neutrality Toward Various Shades of Social Entrepreneurship on SSRN. Here is the abstract:

This working paper discusses the case for research on regulatory policy toward social entrepreneurship and specifically pertains to regulatory policy toward social ventures. The main theme of this working paper is the regulatory neutrality toward various shades of social entrepreneurship and its secondary subject is the convergence of policies toward THE private and public sectors. As such, this working paper touches upon company law, tax law and commercial aspects of the regulation of activities conducted by charities, NGOs, etc.

In recent decades, the charitable landscape worldwide has undergone a significant transformation first with respect to using business methods in support of social missions (social enterprises) and, second, with regard to combining social missions with make-money paradigm (social ventures). The austerity measures in the Western hemisphere, commercialisation/privatisation of state-owned enterprises in post-communist countries and an economic slowdown in Asian “tiger” nations all necessitated a rise of private charity self-supported by social entrepreneurship as a substitute for governmental action. Social ventures have been proliferating in this environment, yet have suffered from public-policies (fiscal environment, inflexibility of the design of business organisations) confined to not-for-profit social enterprises, and lawmakers everywhere have largely failed to address this problem.

The time is therefore ripe for revisiting representative policy models, and to defend the claim that efficient regulatory policies can be neutral toward various shades of social entrepreneurship and well integrate social ventures to the overall benefit of society. A dogma (that not-for-profit social enterprises can better substitute for governmental action than their for-profit counterparts because only the former can enjoy specific governmental supports and receive private donations) shall be dispelled by offering a number of flexible mechanism allowing rewarding private mission-driven business organisations according to the scope of their mission and regardless of their not-for-profit status.

Such research essentially demands perusal of policy and legislative documents produced roughly in the post-2005 period in a number of jurisdictions (mostly Anglo-Saxon like the UK, Vermont followed by other states, British Columbia, but also South Korea) where lawmakers took on the issue of social ventures but, all as one, adopted only fragmentary solutions which did not disenchant the for-profit or not-for profit binary mindset. Identified problems (definition of charity, limits of the scope of business operations of social enterprises, non-distribution constraint etc. on the side of not-for-profits and non-deductibility of mission-related expenses etc. by for-profits) need to be deconstructed one by one toward a complex system reflecting the entire spectrum of social entrepreneurs and based on the principle that the more mission the more governmental privileges, yet more supervision.

Such a complex system would include a number of novel solutions. The commonly accepted general profit-tax exemption for not-for-profits shall be discarded in favour of wider deductibility of charitable expenses combined with exemption of donations (including charitable price premiums in excess of market prices paid by donors for commercial goods or services). The non-distribution constraint (banning dividends or equity rights in dissolution) shall strictly reflect paid-in donations thereby balancing the interests of investors and donors. Finally, a simplistic supervision system requiring periodical reporting to public authorities shall be discarded in favour of a system balancing interests of public and private (donors) stakeholders in the fashion of corporate governance in public companies.

Such solutions could be universally applicable and could be used not only for private social entrepreneurship but also for preserving the social functions of gradually privatised state-owned enterprises.

Lloyd Mayer

 

August 12, 2016 in International, Publications – Articles | Permalink | Comments (0)

McGiverin-Bohan et al.: Local Officials' Support for PILOTs/SILOTs

SPEAKellie McGiverin-Bohan, Kirsten Grønbjerg, Lauren Dula, and Rachel Miller (all affiliated with the Indiana University School of Public and Environmental Affairs) have published Local Officials' Support for PILOTs/SILOTs: Nonprofit Engagement, Economic Stress, and Politics, Public Administration Review (forthcoming 2016). Here is the abstract:

Nonprofit property tax exemption has become a major policy issue as the collapse of the housing market, the Great Recession, and property tax caps have threatened local tax collections. Consequently, many local governments have sought to obtain payments in lieu of taxes (PILOTs) from charities that are formally exempt from property taxes. Using a 2010 survey of local government officials in Indiana, this article examines whether support for PILOT policies is related to officials’ personal involvement with nonprofits, their views on government–nonprofit relationships, the type of position they hold, the level of economic distress in the county, local political conditions, and local nonprofit wealth. The findings support most of these hypotheses but also show that attitudes toward PILOTs appear to be shaped by somewhat different concerns than attitudes toward services in lieu of taxes (SILOTs).

Lloyd Mayer

August 12, 2016 in Publications – Articles | Permalink | Comments (0)

Sugin: Rhetoric and Reality in the Tax Law of Charity

Sugin_Linda_Portrait_2127_smLinda Sugin (Fordham) has published Rhetoric and Reality in the Tax Law of Charity, 84 Fordham L. Rev. 2607 (2016). Here is the abstract (from SSRN):

The rhetoric of public purposes in charity law has created the mistaken impression that charity is public and fulfills public goals, when the reality is that charity is private and cannot be expected to solve the problems that governments can solve. The rhetoric arises from a combination of charity-law history and tax expenditure analysis. The reality follows the money and control of charitable organizations. On account of the mismatch of rhetoric and reality, the tax law of charity endorses an entitlement to pre-tax income and (ironically) creates a bias against taxation. This article reorients the project of defining public and private in the tax law by starting from a normative theory of government responsibility. It challenges the conventional economic justifications for the charitable deduction and exemption, arguing for a more philosophical approach that makes affirmative demands on government to distribute the returns to social cooperation. Under this approach, the appropriate role of private organizations is residual; they must achieve what governments cannot. The article concludes by arguing that current law’s tax benefits for charity are easily justified in this new understanding.

Lloyd Mayer

August 12, 2016 in Publications – Articles | Permalink | Comments (0)

Nonprofit Policy Forum Publishes June 2016 Issue

NPFThe Nonprofit Policy Forum has published its June 2016 issue (Volume 7, Issue 2). Here is the table of contents:

Special Issue on International Comparative Nonprofit Public Policy, Guest Editor: Michal Bar

Articles

Book Review

August 12, 2016 in International, Publications – Articles | Permalink | Comments (0)

Nonprofit and Voluntary Sector Quarterly Publishes August 2016 Issue

NVSQ August 2016The Nonprofit and Voluntary Sector Quarterly has published its August 2016 issue. Here is the table of contents:

Editorial

  • From the Editors’ Desk, Femida HandyJeffrey L. Brudneyand Lucas C. P. M. Meijs 

Articles

  • Managing Identity Conflicts in Organizations: A Case Study of One Welfare Nonprofit OrganizationRobert H. ChenhallMatthew Halland David Smith
  • Volunteer Management: Responding to the Uniqueness of VolunteersSibylle Studer

  • Why So Many Measures of Nonprofit Financial Performance? Analyzing and Improving the Use of Financial Measures in Nonprofit Research, Christopher R. Prentice

  • Exploring Gender Differences in Charitable Giving: The Dutch CaseArjen De Wit and René Bekkers 

  • Does Motivation Matter for Employer Choices? A Discrete-Choice Analysis of Medical Students’ Decisions Among Public, Nonprofit, and For-Profit HospitalsVera Winter and Julia Thaler 
  • Donor Reaction to Salient Disclosures of Nonprofit Executive Pay: A Regression-Discontinuity ApproachBrian Galle and David I. Walker 
  • Nascent Nonprofit Entrepreneurship: Exploring the Formative Stage of Emerging Nonprofit OrganizationsFredrik O. Andersson
  • Modern Portfolio Theory and Nonprofit Arts Organizations: Identifying the Efficient FrontierNathan J. GrasseKayla M. Whaleyand Douglas M. Ihrke 
  • Transparency in Reporting on Charities’ Efficiency: A Framework for AnalysisNoel Hyndman and Danielle McConville 

Book Reviews

  • Book Review: Volunteering in Australia by M. Oppenheimer and J. Warburton (Eds.), Richard Lynch
  • Book Review: Governing Cross-Sector Collaboration by J. Forrer, J. Kee, and E. Boyer, Stuart C. Mendel
     
  • Book Review: Mobilizing Communities: Asset Building as a Community Development Strategy by G. P. Green and A. Goetting (Eds.), Anne Namatsi Lutomia
     
  • Book Review: Giving to Help, Helping to Give: The Context and Politics of African Philanthropy by T. A. Aina, and B. Moyo (Eds.) and The Handbook of Civil Society in Africa by E. Obadare (Ed.), Mary Kay Gugerty

Lloyd Mayer

August 12, 2016 in Publications – Articles | Permalink | Comments (0)

Monday, August 8, 2016

Breen: Charitable Trust Supervision Practice and Procedure in the Common Law World

Oonagh BreenOonagh B. Breen (University College Dublin) has posted "Guardians of the Charitable Realm: Charitable Trust Supervision Practice and Procedure in the Common Law World" on SSRN (European Review of Private Law, forthcoming). Here is the abstract:

This article examines the control framework for the supervision and oversight of charitable trusts in the common law world. It outlines the fundamental differences between private and public trusts that necessitate a separate enforcement regime for charitable trusts and explores the historical and political powers and duties of the Attorney General as parens patriae of charities. In light of the limitations of the Attorney General’s effective scrutiny, Part II considers the emergence of alternative charity regulators - from tax authorities to independent charity commissions - comparing the relative regulatory achievements of these agencies with that of the AG. Part III turns its attention to the role of the courts and tribunals in the enforcement of the interests of donors, beneficiaries and charitable entities. The article concludes in Part IV with a discussion of the merits and demerits of the charitable trust vis-à-vis the public benefit foundation.

Lloyd Mayer

August 8, 2016 in International, Publications – Articles | Permalink | Comments (0)

Bethke: Charity Law Reform in Hong Kong: Taming the Asian Dragon?

Damian BethkeDamian Bethke has published "Charity Law Reform in Hong Kong: Taming the Asian Dragon?" in the International Journal of Not-for-Profit Law. Here is the abstract:

The number of charitable organizations in Hong Kong has increased significantly despite unclear and lax regulation. A legislator has identified flaws in the present law and recommended changes. The proposed recommendations, however, do not consider the unique characteristics of Hong Kong. If implemented, they would not address the existing problems adequately. In order to tame the Asian Dragon, this article proposes an alternative model: self-regulation, which relies on the work of charity watchdogs.

Lloyd Mayer

August 8, 2016 in International, Publications – Articles | Permalink | Comments (0)

Gary: Values and Value: University Endowments, Fiduciary Duties, and ESG Investing

Gary-SusanBlog contributing editor Susan N. Gary (Oregon) has published "Values and Value: University Endowments, Fiduciary Duties, and ESG Investing" at 42 Journal of College and University Law 247 (2016). While the JCUL published version is not readily available online, here is the SSRN posting of the article. Here also is the abstract:

The trustees managing university endowment funds must comply with fiduciary duties that require the trustees to act in the best interests of the university and to act as prudent investors when managing the funds. This article shows that these fiduciaries may adopt investment policies that consider material environmental, social, and governance (ESG) factors as part of an overall investment strategy. The article explains why older arguments that fiduciaries should avoid “social investing” are no longer relevant and how the prudent investor standard has evolved to include ESG investing. The article discusses the changes in socially responsible investing since the anti-apartheid era and reviews a significant number of empirical studies that show that ESG investing has had a neutral or positive effect on financial return. Based on the empirical work, evidence of the financial industry’s growing use of extra-financial factors in investment analysis, and recent guidance from the Department of Labor, the article concludes that a trustee responsible for a university endowment will not breach the duty of loyalty or the duty to act as a prudent investor by directing the endowment’s use of ESG investing as part of an overall financial investment strategy.

Lloyd Mayer

August 8, 2016 in Publications – Articles | Permalink | Comments (0)

Plerhoples: Nonprofit Displacement and the Pursuit of Charity Through Public Benefit Corporations

Alicia PlerhoplesAlicia Plerhoples (Georgetown) has posted "Nonprofit Displacement and the Pursuit of Charity Through Public Benefit Corporations" on SSRN. Here is the abstract:

Nonprofits dominate the charitable sector. Until recently, this statement was tautological. Charity is increasingly being conducted through for-profit entities, raising concerns about the marketization of the charitable sector. This article examines for-profit charity conducted through the public benefit corporation, a new corporate form that allows its owners to blend mission and profit in a single entity. Proponents of public benefit corporations intended it as an alternative to a for-profit corporation and largely ignored its impact on the charitable sector. While public benefit corporations are ripe for conducting charity because they can pursue dual missions, they lack the transparency and accountability mechanisms of charitable organizations.

This article chronicles the supply and demand for public benefit corporations that conduct charity (i.e., “charitable public benefit corporations”) and hypothesizes the micro and macro level harms caused by them. At the micro level, the harm is fraud or “greenwashing”, i.e., deceiving unwitting stockholders, customers, or other stakeholders into investing or spending their time and money in the negligent or fraudulent enterprise. At the macro level, the more pernicious harm is that “market-based charity” injects individualistic and autocratic business values and methods into charitable work. To mitigate these harms, this article proposes that charitable public benefit corporations be required to grant or sell shares to a group of stakeholders sufficient to give such stakeholder-stockholders standing to bring a derivative suit against the public benefit corporation should it fail to pursue its charitable public benefit. These stakeholder-stockholders are akin to impact investors, or investors who value charitable returns above, or concomitantly with, financial returns. The derivative suit offers the rare stick to guard against greenwashing. More importantly, stakeholder-stockholders can (i) guide the founders and boards of a charitable public benefit corporation in pursuing charity as an ordinary business decision, and (ii) import the participatory and democratic values of the charitable sector to public benefit corporations.

Lloyd Mayer

August 8, 2016 in Publications – Articles | Permalink | Comments (0)

Wednesday, June 8, 2016

Chaffee, "Collaboration Theory: A Theory of the Charitable Tax Exempt Nonprofit Corporation"

Eric C. Chaffee, Professor and Associate Dean of Faculty Research & Development at the Univerity of Toledo College of Law,  presented his paper entitled "Collaboration Theory: A Theory of the Charitable Tax Exempt Nonprofit Corporation" on June 2 at the most recent Law & Society conference (Program Link here). The current draft of the paper, which is forthcoming 2016 in the U.C. Davis Law Review, is available on SSRN here - the SSRN abstract follows:

Legal scholarship regarding tax exempt nonprofit entities is meager at best. Although some excellent treatises, book chapters, and journal articles have been written, the body of scholarship relating to these entities is not nearly as healthy and robust as the scholarship relating to their for-profit companions. This is especially troubling considering that nonprofit entities help to improve our society in a myriad of different ways.

This Article seeks to fill a void in the existing scholarship by offering an essentialist theory for charitable tax exempt nonprofit corporations that helps to explain the essence of these entities. Beyond the purely academic metaphysical inquiry into what is a corporation, understanding the essential nature of these corporations is important because it helps to determine how they should interact with society, what rights they should have, and how they should be governed by the law. This discussion is especially timely because the recent opinions by the Supreme Court of the United States in Citizens United and Hobby Lobby have reinvigorated the debate over the essence of the corporation.

This Article breaks new ground by offering a new essentialist theory of the corporation, which shall be termed “collaboration theory.” The decades of debate over the essence of for-profit corporations has coalesced into three prevailing theories of the corporation, i.e., the artificial entity theory, the real entity theory, and the aggregate theory. The problem is that none of these prevailing theories fully answers the question of what is a corporation.

Collaboration theory suggests that charitable tax exempt nonprofit corporations are collaborations among the state governments, federal government, and individuals to promote the public good. Unlike the prevailing theories of the corporation, collaboration theory explains both how and why charitable tax exempt nonprofit corporations exist, which provides a fuller and more robust understanding of these corporations. Collaboration theory advances the existing scholarship by finally offering an essentialist theory for nonprofit corporations, and it shows remarkable promise for understanding the essential nature of for-profit corporations as well.

 

E.W.W.

 

 

June 8, 2016 in Conferences, Paper Presentations and Seminars, Publications – Articles | Permalink | Comments (1)

Tuesday, May 24, 2016

Cyber-Attacks and Risk Allocation

A compelling article from the ABA’s Business Law Today on the risk of loss to client bank accounts from cyber-theft highlights the dangers faced by all bank account holders across the United States, including non-profits. In a technology driven economy, while efficiency is promoted through instantaneous transfers, a door has opened for a new type of cyber-crime.

This article explores some of the inconsistent and unpredictable case law that has developed over who should bear the risk of loss from a cyber-attack, the bank or the customer. Loose standards of “commercial reasonableness” lead to a wide range of possible interpretations. For example, the same banking practice was “reasonable” for one bank, but “unreasonable” for another.

This issue is particularly important for non-profits, who would likely be forced to close their doors if they were to bear the consequences of a large cyber-attack, leaving them without the necessary funds to continue operation.  

The article concludes with some practical advice on how an organization should assess their banking needs and what type of protection is best for their own needs.

David Brennen

May 24, 2016 in Current Affairs, Publications – Articles, Web/Tech | Permalink | Comments (0)

Friday, May 6, 2016

Property Tax Exemption Skirmishes Spread in New Jersey and Elsewhere

Img-location-morristown-detailAs has been covered in this space repeatedly (for example, with respect to Illinois and Maine), the combination of wealthy nonprofits, valuable real estate, and government budget pressures continues to lead to battles between those nonprofits and governments over property tax exemptions. New Jersey has become perhaps the most active battleground - NorthJersey.com reported last month that 26 of the state's 62 nonprofit hospitals are now embroiled in tax-court cases, building on a 2015 Tax Court of New Jersey ruling against Morristown Medical Center.  While earlier this year New Jersey Governor Chris Christie announced an agreement to freeze property tax assessments for nonprofit hospitals for two years in order to give a to-be-formed Property Tax Exemption Study Commission time to review the issue, the legislature has yet to act on the legislation needed to implement this proposal. Additional coverage: NJ.com. The hospital battles join the ongoing lawsuit by individual residents of Princeton, N.J. against Princeton University that a state trial judge has refused to dismiss (a decision now upheld earlier this year by a state appellate court). For recent coverage of that suit, see Bloomberg and Fortune

In related news, Gerard F. Anderson (John Hopkins) and Ge Bai (Washington & Lee) just published a study reporting that seven of the ten most profitable hospitals in the United States in 2013 were nonprofits. At the same time, they found more than half of the hospitals they studied (which included for-profit and public hospitals as well as nonprofits) incurred losses from patient care services and only 2.5 percent earned more than $2,475 per adjusted discharge. Here is the abstract for the study, which appears in HealthAffairs:

To identify the characteristics of the most profitable US hospitals, we examined the profitability of acute care hospitals in fiscal year 2013, measured as net income from patient care services per adjusted discharge. Based on Medicare Cost Reports and Final Rule Data, the median hospital lost $82 for each such discharge. Forty-five percent of hospitals were profitable, with 2.5 percent earning more than $2,475 per adjusted discharge. The ten most profitable hospitals, seven of which were nonprofit, each earned more than $163 million in total profits from patient care services. Hospitals with for-profit status, higher markups, system affiliation, or regional power, as well as those located in states with price regulation, tended to be more profitable than other hospitals. Hospitals that treated a higher proportion of Medicare patients, had higher expenditures per adjusted discharge, were located in counties with a high proportion of uninsured patients, or were located in states with a dominant insurer or greater health maintenance organization (HMO) penetration had lower profitability than hospitals that did not have these characteristics. These findings can inform policy reforms, while providing a baseline against which to measure the impact of any subsequent reforms.

Coverage: St. Louis Post-Dispatch/AP; Washington Post.

Lloyd Mayer

May 6, 2016 in In the News, Publications – Articles, State – Executive, State – Legislative | Permalink | Comments (0)

Tuesday, April 26, 2016

Call for Papers: 2017 AALS Annual Meeting

We received the following call for papers, which may be of interest to many of you.    EWW

***

Nonprofit and Philanthropy Law

LLCS, NEW CHARITABLE FORMS, AND THE RISE OF PHILANTHROCAPITALISM

2017 AALS Annual Meeting

January 3-7, 2017

San Francisco, CA

In December 2015, Facebook founder Mark Zuckerberg and his wife, Dr. Priscilla Chan, pledged their personal fortune—then valued at $45 billion—to the Chan-Zuckerberg Initiative (CZI), a philanthropic effort aimed at “advancing human potential and promoting equality.” But instead of organizing CZI using a traditional charitable structure, the couple organized CZI as a for-profit Delaware LLC. CZI is perhaps the most notable example, but not the only example, of Silicon Valley billionaires exploiting the LLC form to advance philanthropic efforts. But are LLCs and other for-profit business structures compatible with philanthropy? What are the tax, governance, and other policy implications of this new tool of philanthrocapitalism? What happens when LLCs, rather than traditional charitable forms, are used for “philanthropic” purposes?

From the heart of Silicon Valley, the AALS Section on Agency, Partnerships LLCs, and Unincorporated Associations and Section on Nonprofit and Philanthropy Law will host a joint program tackling these timely issues. In addition to featuring invited speakers, we seek speakers (and papers) selected from this call.

Any full-time faculty of an AALS member or fee-paid school who has written an unpublished paper, is working on a paper, or who is interested in writing a paper in this area is invited to submit a 1- or 2-page proposal by June 1, 2016. The Executive Committees of the Sections will review all submissions and select two papers by July 1, 2016. If selected, a very polished draft must be submitted by November 30, 2016. All submissions and inquiries should be directed to the Chairs of the Sections at the email addresses below:

 

Mohsen Manesh

Associate Professor

University of Oregon School of Law

mohsen@uoregon.edu

 

Garry W. Jenkins

Associate Dean for Academic Affairs

John C. Elam/Vorys Sater Professor of Law

Moritz College of Law, Ohio State University

jenkins.434@osu.edu

April 26, 2016 in Conferences, Publications – Articles | Permalink | Comments (0)