Nonprofit Law Prof Blog

Another Report from AMT/EITC… A Late Addition: Nonprofits' Role in Protecting and/or Promoting Speech

Hi all – a quick hit for you all late on this Wednesday night.   As you might recall, I did a number of posts back at the end of May/beginning of June reporting on the charitable presentations at the AMT/EITC scholarship conference held at the beginning of the summer.   You can find those reports here, and here, and here.

My May/June blogging week ended, and I had one more report to go… so in the category of “better late than never,” I do want to talk about Miranda Perry Fleisher’s presentation, tentatively titled A Space for Dissent, because I think it is so critical at this moment in time.   In it, she explores the role of the nonprofit community in protecting and promoting speech, especially when that speech is challenging to the community and/or establishment (to the extent that those are different things.)   Her hope is to address these issues looking critically and thoughtfully at “long-standing First Amendment principles, the value of free speech in a democracy, and the role of the non-profit sector as a forum for dissent.”   I won’t give away the ending … no spoilers here on the Nonprofit Law Prof Blog.   So, keep an eye out for a law review near you!

In all seriousness… at the time, I remember thinking that this is an incredibly important project, at a time when nonprofits are getting called before Congress!!! to discuss their own speech and the speech that happens around them. The world events, international and domestic, that have occurred since my first few postings about the conference just reinforce my thinking of how important Miranda’s project will be.

Anticipatorily, eww

Reports from AMT/EITC Continued - All.The.Politics.

Or should I say, electioneering....

It's a unique and polarizing election year and we have a very active Supreme Court on a variety of First Amendment topics,  so it's no suprise that we had two important presentations on the Johnson Amendment's prohibition on the politicial campaign intervention. 

Ben Leff presented a project that he is working on with Sam Brunson are working on some public interest litigation in this space.   As many of you may know, and as blogged about most recently here just a couple of days ago,  SAFE SPACE v. Commissioner s a test case in the works challenging the Johnson Amendment, a project that Ilya Shapiro had a hand in.   SAFE SPACE takes an all-or-nothing approach to the problems, clearly stating that the organization intends to do both electioneering and lobbying directly.

Ben and Sam intend to do something similar, in that they are filing with the intent of developing a test case.  Ben discussed their project on the blog previously - see here.  With the latest report that SAFE SPACE has been dismissed and returned to the administrative stage to develop additional facts,  Ben and Sam's project may be able to catch up procedurally.   Their project is very different from SAFE SPACE, however, as it will continued to utilized an affiliate organizations in their structure:

This Article describes the actions that Sam and I plan to take to create our own nonprofit organizations to endorse candidates in November 2024 using our
“alternate means” strategy that is explicitly distinguished from the marginal cost paradigm advanced by SAFE SPACE.  While it is likely that noting will happen to our application prior to the 2024 election, we believe that engaging in Constitutional self-help using an alternate means strategy is urgent given the existence of SAFE SPACE and its case pending in Tax Court.

The paper walked its way throught the Constitutional analysis of Branch Ministries and Taxation Without Representation, and why their alternative structure works to address the First Amendment speech issues while also protecing the charitable sector from being overrun.  Look for more updates on all of this - I'm sure Nonprofit Law Prof Blog will have the scoop, since both Ben and Sam are contributors here.

Phil Hackney, yet another of our bloggers and one who has been very active on this issue, presented his paper "The Political in Taxation."   Phil says that the motiviation for the article was "the House Ways and Means recent suggestion that spending on voter registration and get out the vote efforts ought to be prohibited."  It takes a wider view of how the tax code view political (again, in the electioneering sense) expenditures.   The article is a wonderful take on the artifical and overlapping distinctions among electionerring, lobbying, issue advocacy, and straight up personal consumptions that we deal with regularly in the Code.    As nonprofit types, we are used to these silos, but the are really artificial to the rest of the world.   Phil's project is really important as we try to think through an issue that threatens the legitimacy of our sector.

Speaking of Phil... he takes over blogging this week so be sure to ask him about it!

Thoughtfully, eww

 

 

 

Reports from AMT/EITC - DAO(c)(3)

In what I hope to be a series of reports from the AMT/ETIC confererence's nonprofit participants, Sam Brunson previewed a really interesting project on using DAOs for charitable activity.  For the Luddites among us (including yours truly) , a DAO is a "Decentralized Autonomous Organization" - an organizational that exists in the blockchain-o-sphere, characterized by the decentralized management of token holders by a common purpose.   Here's the Investopedia summary for more.  

The thing that makes a DAO interesting and unique - its decentralized management - poses all sorts of issues for nonprofit fidiuciary duties and compliance with the requirements of Section 501(c)(3).  Sam says:

So DAOs likely don’t meet the requirements for tax exemption. On top of that (or perhaps, organizationally, before that), their ethos also does not fit in with the rule-based requirements of tax exemption. DAOs, like much in the world of crypto, believes that it cannot and should not fit within existing regulatory structures. It believes that current rules do not really apply, that new rules should be implemented, and that, until they are, it should be able to act however it chooses. But that does not fit with the tight control that the tax law exerts over organizations that want to be exempt from federal income taxation, and that want to provide donors with deductions and nonrealization for donations.

Sam's working through some potential soluations on this quandry, and hopefully the workshop helped him brainstorm some ideas.  I'm looking forward to seeing more on this cutting edge project!

From the admittedly technologically challenged eww

Greetings from Chicago and the AMT/EITC Conference!

Hi all from near the campus of the Northwestern Pritzker School of Law, which is hosting the AMT/EITC Conference - a workshop for mid and senior level tax profs.   Some of the ideas being presented are fully baked - mine is only half baked but I am looking forward to getting some wonderful feedback.

I'm super excited for this conference becuase many of the superstars of Nonprofit Law Prof World are here, including Sam Brunson, Ben Leff, Miranda Perry Fleisher, Brian Galle, David Walker, and Phil Hackney.  So many really great discussions about to happen about the tax-exempt world!  I'm going to try to catch up with some of my fellow profs and get permission to talk about their projects in the works.  Since I have my own permission, I can tell you a bit about my work in progress, which we will discuss tomorrow.

You may have heard about the Trust-Based Philanthropy Project - you can find the project's website here: www.trustbasedphilanthropy.org.    They describe themselves as follows:

The Trust-Based Philanthropy Project is a five-year, peer-to-peer funder initiative to address the inherent power imbalances between foundations and nonprofits. At its core, trust-based philanthropy is about redistributing power—systemically, organizationally, and interpersonally—in service of a healthier and more equitable nonprofit sector. On a practical level, this includes multi-year unrestricted funding, streamlined applications and reporting, and a commitment to building relationships based on transparency, dialogue, and mutual learning.

Having worked with many private foundations over the years, the first thing that immediately came to mind as I explored the Project is "What about 4945?  and 4942??"   Typical tax lawyer, I know.   But the reality is that the private foundation excise taxes are rooted in distrust... a deep, deep Congressional distrust of private foundations, their donors, and their governing bodies.  One need only take a spin through the transcript of the Patman Hearings to know that Code Section 4945 does not come from a place of partnership and equity.   The sad fact is that distrust is baked into private foundation grant-making through the tax code.  Can we look at all of the private foundation excise taxes, but especially 4945, through the lens of trust based philanthropy and see if we can't make some changes for the better?  That's my goal in this project.

Coming to a law review near you... TBD!

Hopefully, more reporting from on the ground tomorrow!

Excitedly, eww

 

 

 

The Nonprofit Leadership Crisis: A Natural Consequence of the "Running Like a Business" Mentality

In Friday's Chronicle of Philanthropy,  an opinion piece by Frances Kunreuther and Sean Thomas -Brietfleld of the Building Movement Project discusses a new study on nonprofit leadership generally and specifically, on barriers to increasing the number of diverse nonprofit executives.  The report follows similar studies done by the organization in 2016 and 2019, so it is able to identify some key trends in nonprofit leadership.   The key findings of the most recent report, entitled "The Push and Pull: Declining Interest in Nonprofit Leadership, " is that, despite increases in mentorship, coaching, and other types of support,  there is

a decreased interest in top leadership roles and a simultaneous increase in respondents who said they were not interested in these roles. The report also shows that, contrary to our hypotheses, respondents who had received more supports were less interested in the executive director role while respondents who faced more challenges in their careers were more likely to pursue top leadership positions. BIPOC respondents more commonly faced these challenges overall, though the trend in aspiration was true for both BIPOC and white survey takers. These trends suggest a “push” into leadership roles to ameliorate the issues nonprofit staff have experienced, rather than a “pull” into these roles on their merit. Finally, to explain why BIPOC staff were particularly less interested in the executive director position, this report looks at the obstacles BIPOC leaders face in their roles.

While there does appear to be a general increase in leadership resources available to aspiring nonprofit leaders, signficant challenges remain - challenges that are exacerbated for people of color.  According to the study, these challenges continue to include low and/or inequitable pay, lack of board of director and senior executive leadership, and signficant increases in job responsibility and expectations leading to high levels of burnout.  The report's summary conclusion highlights these issues:

Nonprofit organizations and the sector have an opportunity to address the declining interest in top leadership positions. This means creating more pulls towards leadership, particularly investing in well-functioning (rather than dysfunctional) internal operations so that leaders have the ability to succeed without constant self-sacrifice. Making executive positions doable and adding more support for leaders could address not only what is pushing, rather than pulling, BIPOC staffers into leading, but also pushing Executive Directors out of their jobs. This is even more important given the types of external challenges leaders will continue to face in the coming years.

As I read the report and its conclusions, I couldn't help but zoom out to see this as a evidence of the error of the "run charity like a business" mentality. Personally, nothing irks me more than that notion, which I will rail against at all turns. In my view, this notion devalues the very real need for high level human capital in the nonprofit space. Nonprofit salaries are "overhead" to be minimized because they not "programmatic" - leading to individual donors scouring for overhead percentages and institutional funders limiting the scope of reimbursable expenses.  We challenge nonprofits to do more with less as funding sources dry up and needs increase, and it seems that the first place we look to criticize is nonprofit salaries.  "Do less with more" is code for squeezing more out of our people - it's no wonder that people walk away saying enough is enough. Even more troubling, this view is calclified into how we regulate grantmaking, fiduciary duties, and compensation, which creates barriers to change.  So long as we continue to view - socially and legally - nonprofit labor as an expense to be minimized rather than a resource to be nutured, this leadership crisis will continue.

Frustratedly, eww

 

 

 

Section on Trusts & Estates AALS Panel in DC Jan 5: Strategic Use of Trusts for Wealth Preservation

The Section on Trusts and Estates of the American Association of Law Schools hosts a panel tomorrow in DC entitled: The Strategic Use of Trusts for Wealth Preservation

The Moderator is me Philip T. Hackney, University of Pittsburgh School of Law

The Speakers include Naomi R. Cahn, University of Virginia School of Law, Thomas P. Gallanis, Antonin Scalia Law School at George Mason University, Deborah S. Gordon, Drexel University Thomas R. Kline School of Law, Lynne Marie Kohm, Regent University School of Law, Peyton Nicole Farley, Judicial Law Clerk to the Honorable Doris Henderson Causey, Court of Appeals of Virginia,  Natalie M. Lynner, Drake University Law School and Allison Tait, The University of Richmond School of Law

The program is described as follows: "Trusts can be strategically utilized to achieve different objectives, including asset protection, tax planning, succession planning, philanthropic endeavors, and commercial transactions. Use of trusts to guard and protect wealth has resulted in ever-evolving uses of the vehicle, with an increased desire to cloak trusts with a veil of secrecy. This panel considers wealth preservation generally, and other topics related to the strategic uses of trusts, including asset protection trusts, offshore trusts, jurisdictional considerations, and asset protection strategies."

A business meeting will take place at the conclusion of the program.

Philip Hackney

Nonprofit and Philanthropy Law Section of AALS Panel Jan 5 in DC

The Nonprofit and Philanthropy Law Section of the American Association of Law Schools hosts a panel tomorrow January 5 on Recent Scholarship in Nonprofit & Philanthropy Law.

The moderator is Brian Galle, Georgetown University Law Center.

The Speakers include Jill E. Fisch, University of Pennsylvania Carey Law School, Darryll K. Jones (of this blog), Florida A&M University College of Law, Christopher J. Ryan, Jr., University of Louisville, Louis D. Brandeis School of Law, and Linda F. Sugin, Fordham University School of Law

Papers were selected in a call for papers as the most outstanding recent work in nonprofit and philanthropy law.

A business meeting will take place at the program conclusion.

Philip Hackney

Deadline Extended for Call for Papers on the Future of Nonprofit Regulation

The Urban Institute and the Lilly Family School of Philanthropy have extended the deadline for responding to the Call for Papers for The Future of Nonprofit Regulation in the United States symposium to November 27, 2023. The symposium will be held April 18-19, 2024. Here is part of the call for papers description:

Scholars and practitioners are invited to submit brief abstracts describing papers they will write and present at the two-day hybrid symposium on the Future of Nonprofit Regulation in the United States, which will be held on April 18-19, 2024, at the Urban Institute in Washington, DC. Authors will be invited to revise their papers and submit them to be considered for a special symposium issue of Nonprofit Policy Forum, a peer-reviewed international journal. Authors may submit as sole author or in collaboration with co-authors.

. . . .

Symposium Goals: The symposium is designed to bring together empirical information and cross-sector perspectives to address critical issues in the regulation of nonprofit organizations and philanthropy with the goal of encouraging informed public policies and relevant research.

Lloyd Mayer

Call for Papers: The Future of Nonprofit Regulation in the United States

The Urban Institute and the Indiana University Lilly Family School of Philanthropy have issued a call for papers (abstracts due November 10, 2024) for the April 2024 symposium The Future of Nonprofit Regulation in the United States. Here is part of the description:

Scholars and practitioners are invited to submit brief abstracts describing papers they will write and present at the two-day hybrid symposium on the Future of Nonprofit Regulation in the United States, which will be held on April 18-19, 2024, at the Urban Institute in Washington, DC. Authors will be invited to revise their papers and submit them to be considered for a special symposium issue of Nonprofit Policy Forum, a peer-reviewed international journal. Authors may submit as sole author or in collaboration with co-authors.

. . . .

Symposium Goals: The symposium is designed to bring together empirical information and cross-sector perspectives to address critical issues in the regulation of nonprofit organizations and philanthropy with the goal of encouraging informed public policies and relevant research.

Lloyd Mayer

Festschrift for Professor Ellen Aprill at Loyola Law School LA

Loyola Law School Los Angeles hosted a Festschrift on Friday March 24, celebrating the scholarly career of Ellen Aprill who has
contributed so much to the nonprofit/tax-exempt organization legal sphere over her impressive career. I participated in the event. It was a wonderful opportunity for the Loyola Law School Community to share a collective recognition of Prof. Aprill with law professors from around the country, as well as practitioners. So many described the significant ways in which Prof. Aprill impacted their scholarly and personal lives. It was a touching tribute with her family sharing fabulous reflections as well. 

9:30 am – 3:00 pm  
FESTSCHRIFT & LIVE SYMPOSIUM featuring works-in-progress, to be published in a symposium issue of the Loyola of Los Angeles Law Review, by  

•  Lloyd Hitoshi Mayer, University of Notre Dame, Nonprofits, Taxes, and Speech 
• Samuel D. Brunson, Loyola University Chicago School of Law, & Philip Hackney, University of Pittsburgh School of Law: A More Capacious Conception of Church
• Roger Paul Colinvaux, Catholic University of America: Strings Are Attached: Placing a Spotlight on the Hidden Subsidy for Perpetual Donor Limits on Gifts
• Richard L. Hasen, UCLA School of Law: Nonprofit Law as the Tool to Kill What Remains of Campaign Finance Law: Reluctant Lessons from Ellen Aprill
• Michelle D. Layser, University of San Diego School of Law: The Unknown Consequences of Place-Based Tax Incentives

The presentation of papers was followed by a celebration and tribute from around thirty different people from students to colleagues, from practitioners to family from 3:30 – 5:00 pm. It was a true joy.

Philip Hackney

Brunson & Hackney: A More Capacious Concept of Church

Samuel D. Brunson (Loyola Chicago) and Philip Hackney (Pittsburgh) have posted A More Capacious Concept of Church, which will be published in the Loyola of Los Angeles Law Review as part of a symposium issue honoring Ellen Aprill (Loyola L.A.). Here is the abstract:

United States tax law provides churches with extra benefits and robust protection from IRS enforcement actions. Churches and religious organizations are automatically exempt from the income tax without needing to apply to be so recognized and without needing to file a tax return. Beyond that, churches are protected from audit by stringent procedures. There are good reasons to consider providing a distance between church and state, including the state tax authority. In many instances, Congress granted churches preferential tax treatment to try to avoid excess entanglement between church and state, though that preferential treatment often just shifts the locus of entanglement. But those benefits and protections come with cost both to individual churches (by making these organizations susceptible to tax shelters and political activity shelters) and to our democratic order (by granting churches to a higher status than other organizations). Does Congress get the balance right? We think the balance struck is problematic but justifiable. In this Essay we only note the problems and suggest some actions churches and religious organizations might take to protect against some of the dangers.

Lloyd Mayer

Hasen: Nonprofit Law as the Tool to Kill What Remains of Campaign Finance Law

Richard L. Hasen (UCLA) has posted Nonprofit Law as the Tool to Kill What Remains of Campaign Finance Law: Reluctant Lessons from Ellen Aprill, which will be published in the Loyola of Los Angeles Law Review as part of a symposium issue honoring Ellen Aprill (Loyola L.A.). Here is the abstract:

This brief Essay was prepared for a festschrift honoring the work of Professor Ellen Aprill. I explain in the Essay how Professor Aprill’s deep knowledge of nonprofit and tax law and her relentless intellectual honesty leads her (and us) to an unhappy place: a world in which many of the remaining regulations of money in politics could well be struck down as unconstitutional or rendered wholly ineffective by a Supreme Court increasingly hostile to the goals of campaign finance law and extremely solicitous of religious freedom. Just as the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission used the First Amendment rights of nonprofit corporations to open up direct political spending by large, for-profit corporations, additional arguments about the rights of charitable institutions and other nonprofits will be used to push further judicial deregulation of the political process for all.

Professor Aprill in her most recent writings at the intersection of nonprofit law and election law reluctantly shows the way: a path toward getting churches, synagogues and other charitable institutions directly in the business of politics; a means of striking down or rendering ineffective what remains of our campaign disclosure laws; and a self-reinforcing bootstrapping that relies upon legislative and agency inertia coupled with judicially-created loopholes to argue for the ineffectiveness of the system as a whole, triggering its demise through constitutional litigation. It is a sad but expertly told story of regulatory collapse.

Lloyd Mayer

Call for Papers (deadline: 3/15/23): 2023 Modern Studies in the Law of Trusts, Wealth Management & Philanthropy Conference

I received a call for papers for the fifth conference in the Modern Studies in the Law of Trusts, Wealth Management & Philanthropy series to be held at Yong Pung How School of Law, Singapore Management University on July 27-28, 2023. The deadline is March 15, 2023. Here is the full announcement:

Call for papers for Modern Studies in the Law of Trusts, Wealth Management & Philanthropy 2023

The fifth conference in the “Modern Studies in the Law of Trusts, Wealth Management & Philanthropy” series will take place on 27-28 July 2023 at the Yong Pung How School of Law, Singapore Management University (Singapore). The 2023 conference will be co-organised by Singapore Management University, Centre for Commercial Law in Asia, the University of York, and The Dickson Poon School of Law, King’s College London.

The theme of the conference is “The Law of Trusts, Wealth Management & Philanthropy: Innovation and Reform in the Law of Trusts”. The conference will focus on current developments and challenges facing trust law, wealth management and philanthropy, with particular focus on the need for innovations responding to contemporary developments and emerging issues – for example, technological disruption, new forms of regulation, climate change and sustainability goals - that impact global families and how they manage their wealth. The conveners of the conference (Richard Nolan (York), Tang Hang Wu (SMU), Yip Man (SMU) and James Lee (KCL)) plan to publish a selection of the papers presented at the conference in a special edition of a journal (subject to review and availability of space).

If you would like to offer a paper, please submit a working title and an abstract (of no more than 1500 words) by 15 March 2023 by email to James Lee ([email protected]) and Yip Man ([email protected]).  The conference conveners are particularly keen to hear from Global South, women and emerging scholars in the field. Acceptance will be on a rolling basis and the conference conveners will be grateful for early submissions. There are no speaker registration fees for those whose papers are accepted this conference. Speakers and attendees are expected to meet their own travel costs and accommodation for this conference.

Lloyd Mayer

When Tax-Exempt Nonprofits Detract Value From Society

I ran across an interesting paper regarding the measurement of and consequences from negative externalities generated by nonprofits.  Of course, most laws regulating nonprofits (tax or otherwise) are for the purpose of limiting or eliminating negative externalities.  The private foundation excise taxes, for example, are all designed to diminish whatever negative externalities are generated by embargoing large chunks of wealth from taxation.  The tax on unrelated income is an attempt to defeat a negative externality (unfair competition).  To the extent we can better measure negative externalities we can either increase or decrease bothersome and costly regulations.  Anyway, here is the abstract:

Nonprofits receive tax exemptions in return for social value creation and delivery. While the outcomes of these tax exemptions are often positive, there are value detracting situations in which the cost of granting the tax exemption is likely to exceed its benefits. To date, explanations for these value detracting situations remain scattered and discipline centric. Therefore, the purpose of this paper is to clarify the conditions under which tax-exempt nonprofits detract value from society. We survey fifteen years of tax-exempt nonprofit scholarship, across nine disciplines, and identify three value detracting conditions: policymaking and regulation intemperance, nonprofit management and governance distraction, and detection and prosecution inconsistencies. These three conditions interact and reinforce each other, compounding the value destruction to society. Overall, our findings offer important policy insights regarding the unintended consequences of tax exemptions and our framework can be used to identify negative return situations.

dkj

AALS Section on Trusts & Estates TWO Calls for Papers: WIP & Pedagogy

The AALS Section on Trusts and Estates Section is seeking papers/presentations for a works in progress panel and a panel on Pedagogy.

Here are the two calls for papers/presentations:

Call 1 WIP: The AALS Section on Trusts and Estates is pleased to announce a Call for Papers: “Works in Progress in Trusts & Estates” 

Selected papers will be presented at the Trusts & Estates Program Session at the 2022 AALS Annual Meeting held in San Diego from January 4-7, 2023. 

Program Description: The Section seeks submissions on a variety of topics and methodological approaches related to Trusts & Estates Law. We are interested in all states of article development.

Eligibility: Full-time faculty of AALS member schools or non-member fee-paid schools as of the submission deadline are eligible to submit papers. For co-authored papers, both authors must satisfy the eligibility criteria. We particularly encourage new voices in the field to submit.

Submissions, due dates and method: Submissions should be of abstracts between 250 and 1,000 words, inclusive of any footnotes. Scholarship may be at any stage of the publication process from work-in-progress to completed article, but if already published, scholarship may not be published any earlier than 2022. We welcome legal scholarship across a wide variety of methodological approaches. Each potential speaker may submit only one abstract for consideration.

There are two submission due dates. The Section seeks detailed abstracts in late summer, with final papers due in late fall.

• The due date for detailed abstractsis August 31, 2022.
• The due date forfinal submission is November 15, 2022.

Abstracts and papers should be submitted electronically in Microsoft Word format to Eric Chaffee at [email protected]. The subject line should read “AALS Trusts & Estates Section CFP WIP Submission.” By submitting an abstract for consideration, you agree to attend the 2023 AALS Annual Meeting Trusts & Estates Program Session should your paper be selected for presentation.

Submission review, selection, conference attendance: Abstracts and papers will be reviewed by members of the Section’s Executive Committee. Selected presenters will be announced by October 1, 2022. The Call for Paper presenters will be responsible for paying their own AALS registration fee, hotel, and travel expenses.

Inquiries or questions: Any inquiries about the Call for Papers should be directed to Eric Chaffee at the contact information noted above.

 

 

Call 2 Pedagogy: The AALS Section on Trusts and Estates is pleased to announce a Call for Papers: “Post-Pandemic Pedagogy in Trusts & Estates” 

Selected papers will be presented at the Trusts & Estates Program Session at the 2022 AALS Annual Meeting held in San Diego from January 4-7, 2023. 

Program Description: We invite papers and/or presentations that provide insights into educating law students in trusts & estates. These insights might take a variety of forms. For example, papers/presentations might describe classroom techniques and innovations, innovations in course design or structure, or novel courses. They might discuss proposals that show how we might incorporate issues of race, gender, class, sexual orientation, immigration status, and/or disability into our classrooms. They might also explore the lessons learned during the time we have all now spent teaching during the pandemic. Or contributions might be completely forward looking and propose novel ideas or experiments in teaching that you have not yet implemented.

Eligibility: Full-time faculty of AALS member schools or non-member fee-paid schools as of the submission deadline are eligible to submit papers. For co-authored papers/presentations, both authors must satisfy the eligibility criteria.

Submissions, due dates and method: Submissions should be of abstracts between 250 and 1,000 words, inclusive of any footnotes. The submissions for this panel can either describe an intended paper or a presentation that you will provide. Scholarship may be at any stage of the publication process from work-in-progress to completed article, but if already published, scholarship may not be published any earlier than 2022. We welcome legal scholarship across a wide variety of methodological approaches. Each potential speaker may submit only one abstract for consideration.

There are two submission due dates. The Section seeks detailed abstracts in late summer, with final papers due in late fall.

• The due date for detailed abstractsis August 31, 2022.
• The due date forfinal papers/and or presentation materials is November 15, 2022.

Abstracts and papers should be submitted electronically in Microsoft Word format to Philip Hackney at [email protected]. The subject line should read “AALS Trusts & Estates Section CFP Pedagogy Submission.” By submitting an abstract for consideration, you agree to attend the 2023 AALS Annual Meeting Trusts & Estates Program Session should your paper be selected for presentation.

Submission review, selection, conference attendance: Abstracts and papers will be reviewed by members of the Section’s Executive Committee. Selected presenters will be announced by October 1, 2022. The Call for Paper presenters will be responsible for paying their own AALS registration fee, hotel, and travel expenses.

Inquiries or questions: Any inquiries about the Call for Papers should be directed to Philip Hackney at the contact information noted above.

 

Philip Hackney

06/13/22

This Sunday: AALS Presentations on Nonprofits, Inequality, and Black Poverty

For people attending the virtual American Association of Law Schools (AALS) Annual Meeting this week, there are two nonprofit-related presentations of which I am aware that may be of interest.

On Sunday at 11:00 a.m. (Eastern), the Nonprofit and Philanthropy Law section will present A Subsidy for Inequality: Bob Jones and Fundamental Public Policy Today. The presenters are Provost JoAnne A. Epps (Temple), along with two of our blog contributors, Samual D. Brunson (Loyola-Chicago) and yours truly; the moderator is Khrista McCarden (Tulane), who is also a blog contributor.

And on Sunday at 4:45 p.m. (Eastern), the Tax Section will present New Voices in Taxation, including The Black Tax: How the Charitable Contribution Subsidy Reinforces Black Poverty by Nyamagaga R. Gondwe (NYU) (forthcoming in the Tax Law Review). Here is the abstract:

This paper analyzes tax-based welfare policy through the lens of Black economic history. It juxtaposes the tax treatment of Black Kinship Networks and the charitable contributions deduction in the federal tax code to show how the tax incentive for charity creates an economic burden for the Black community. The paper argues that when the tax code creates incentives to attract private capital to welfare projects without making antipoverty welfare a condition of the tax benefit, it shifts the burden and cost of providing welfare services back to communities in need. In the Black community, wealth and income disparities make the lack of public welfare accommodations an even greater burden. Still, Black Kinship Networks facilitate the survival of in-group members, as they have for generations, in an effort to counteract the effect of declining public welfare and ineffectual private welfare.

Lloyd Mayer

Philip Hackney, The 1969 Tax Reform Act and Charities: Fifty Years Later

I posted a new article on SSRN today that will be published in the Pitt Tax Review soon. This is an introduction to the symposium Pitt Law hosted back in November 2019 before the Covidian times on the 1969 Tax Act and Charities. I will post the link to the issue as soon as it goes live. It includes contributions from Ellen Aprill, Jim Fishman, Dana Brakman Reiser, Ray Madoff, and Khrista McCarden.

"Fifty years ago, Congress enacted the Tax Reform Act of 1969 to regulate charitable activity of the rich. Congress constricted the influence of the wealthy on private foundations and hindered the abuse of dollars put into charitable solution through income tax rules. Concerned that the likes of the Mellons, the Rockefellers, and the Fords were putting substantial wealth into foundations for huge tax breaks while continuing to control those funds for their own private ends, Congress revamped the tax rules to force charitable foundations created and controlled by the wealthy to pay out charitable dollars annually and avoid self-dealing. Today, with concerns of similar misuse of philanthropic institutions to further wealthy interests, it is worthwhile to reconsider this significant legislation fifty years later.

Natural questions arise. What was the goal of Congress with respect to charity and with respect to tax? Did it accomplish these goals? Are those goals still relevant? What goals might suggest themselves today? Do we have the ability to modify the law to support those new goals? On November 1, 2019, the Pittsburgh Tax Review hosted a symposium to examine the 1969 Tax Act."

The conclusion is kind of the kicker:

"As I reflect on this symposium that took place in 2019 before the origination of COVID-19 and the racial justice revolution ignited by the killing of Mr. George Floyd in Minneapolis, I think about the great potential of well-democratically-harnessed philanthropy and seriously doubt that can be accomplished within the space of “private” philanthropy. I lean strongly
towards eliminating tax benefits for this private “philanthropy” by denying tax exempt status to those organizations that are not public charities.

Why do I say this? Fundamentally, I believe the effort of philanthropy should not be publicly supported if it is not collectively determined. To me, Professor McCarden makes the beginnings of a persuasive case that the values inculcated and supported through the private foundation system are likely predominately exclusive ones rather than public ones. I think that lack of a public nature should matter. Oddly, the private foundation tax architecture not only supports these wealthy exclusive preferences, but as Professor McCarden points out, it forces the private foundation to spend a lot of money every year into the future furthering those preferences of the wealthy. To be clear, the problem with this form of philanthropy is not that it might support abstruse interests such as senators complained about with respect to the Mellons, but that it works to provide significant and lasting governmental benefits to the private, perhaps well meaning interests, of people simply because they happen to be wealthy. The private foundation tax architecture provides this support, lifts these efforts up, in the name of supporting collective efforts, but they are far from collectively led.

I believe deeply in the power of a fiercely independent and courageous civil society that empowers the voices of all in our communities, particularly those voices that have been and continue to be disempowered. But, the private foundation tax architecture even at its best likely can never really support such a vision because it is defined privately. And, as Professor Aprill shows, the lack of IRS enforcement capability likely makes this architecture weak anyway and unlikely to be able to ever ensure such a democratically based vision. The private foundation community is imbued with some important social justice voices such as Darren Walker of the Ford Foundation and Elizabeth Alexander of the Mellon Foundation.

Still, I believe its predominate ethic is that of Carnegie from The Gospel of Wealth: that the wealthy man is the savior of the rest of us, both in terms of their ability to invest their dollars and to spend them in ways that improve all lives. I think that wrong and harmful. That vision is not just antithetical to democracy, but it is antithetical to racial, gender, sexual orientation, and social justice. Given this, I think we ought to eliminate tax benefits for the private foundation form."

Appreciate comments good and bad on this one.

By: Philip Hackney

AALS Nonprofit & Philanthropy Law Call for papers

Hereby encouraging folks to submit papers they are working on on Nonprofit or Philanthropy law to be presented at the AALS 2021. 

CALL FOR PAPERS

AALS SECTION ON NONPROFIT AND PHILANTHROPY LAW

SESSION 2021 ANNUAL MEETING

JANUARY 5-9

San Francisco, CA

Nonprofits & Philanthropy

The AALS Section on Nonprofit and Philanthropy Law announces a call for papers to be presented as works-in-progress in our committee session at the 2020 AALS Annual Meeting in Washington DC from January 2-5, 2020.

The Section seeks submissions on a variety of topics and methodological approaches related to Nonprofit and Philanthropy Law. We are especially interested in receiving submissions from new and junior academics or scholars who have not previously written in the field. We are interested in all states of article development though more developed papers will be given a priority.

Eligibility: Scholars teaching at AALS member or nonmember fee-paid schools

Due Date: Sunday, August 30, 2020

Form and Content of Submission: Submissions may range from early drafts to articles that have been submitted for publication, but not articles that will have already been published by January 6, 2020.

Submission Method: please submit papers electronically to [email protected] "AALS Nonprofit and Philanthropy Law Submission" in the email subject line.

Submission Review: Papers will be selected for inclusion in the program after review by members of the AALS Nonprofit and Philanthropy Law.

Additional Information: Presenters are responsible for their own expenses associated with the conference. If you have any questions, please contact the chair Philip Hackney at [email protected].

By: Philip Hackney

Bird-Pollan Presents "Taxing the Ivory Tower" at IU Tax Policy Colloquium Tomorrow

Professor Jennifer Bird-Pollan (U. Kentucky) will be presenting Taxing the Ivory Tower at the Indiana University Tax Policy Colloquium at 1:15 to 2:15 pm (EDT) tomorrow. If you are interested in attending (via Zoom), please contact Professor Leandra Ledermann at [email protected] to receive the Zoom meeting information.

Lloyd Mayer

AALS2020 in DC Nonprofit & Philanthropy Law Section Panel

The Section on Nonprofit and Philanthropy Law of the AALS hosted a panel at #AALS2020 on Sunday January 5 entitled Charitable Giving and the 1969 Act: 50 Years Later. Roger Colinvaux of the Catholic University of America, Columbus School of Law moderated the session. Professor Colinvaux provided an excellent synopsis of the Act and the historical milieu in which it took place. He also did a nice job of presenting the stakes involved then and now.

Dana Brakman Reiser of Brooklyn Law School presented her article in progress Charity Regulation in the Age of Impact. It considers the ways in which the 1969 Tax Reform Act hinders types of investing that Professor Brakman believes are natural fits for private foundations. She explores novel ways of modifying the Act in order to allow private foundations to make more mission related investments (MRIs) and program related investments (PRIs).

Khrista McCarden of Tulane University Law School presented her article in progress on Private Operating Foundation Reform & J. Paul Getty. She argues that private operating foundations that operate as art museums are too often providing little in the way of public benefits because they tend to systematically exclude lower income and minority populations. She also believes these private operating foundations are particularly subject to self-dealing abuses that neither the IRS nor states attorney general respond to in an appropriate way.  

Finally, Ray D. Madoff, of Boston College Law School, presented her article in progress The Five Percent Fig Leaf examines some of what she perceives as the failure of the private foundation regime to ensure an appropriate payout amount of five percent from private foundations. She argues the allowance of three types of expenditures to count towards payout is too lenient: administrative expenses (that allow donor children to be paid well into the future for often little work), payments to donor advised funds, and PRIs. 

There was active questioning and participation from the audience. These issues clearly resonate at a high level of society. These papers will be published in the Pittsburgh Tax Review in Spring 2020 along with two other papers by Ellen P. Aprill and James J. Fishman  The five papers were presented at the University of Pittsburgh on November 1, 2020 as part of a symposium.

Next years AALS will be in San Francisco. I will be the chair this coming year and would be interested in any thoughts on panel ideas for next years session. The theme of the general conference is the Power of Words. Also very interested in highlighting new professors in the field. Would love to put together a new voices panel in addition to a regular panel. 

Philip Hackney