Law Commons^™

The Economics Of Limited Liability: An Empirical Study Of New York Law Firms, Scott Baker, Kimberly D. Krawiec

ExpressO

Since the rapid rise in organizational forms for business associations, academics and practitioners have sought to explain the choice of form rationale. Each form contains its own set of default rules that inevitably get factored into this decision, including the extent to which each individual firm owner will be held personally liable for the collective debts and obligations of the firm. The significance of the differences in these default rules continues to be debated. Many commentators have advanced theories, most notably those based on unlimited liability, profit-sharing, and illiquidity, asserting that the partnership form provides efficiency benefits that outweigh any …

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady

BYU Law Review

No abstract provided.

Thoughts On Smith And Religious-Group Autonomy, Laura S. Underkuffler

BYU Law Review

No abstract provided.

"Omalous" Autonomy, Perry Dane

BYU Law Review

No abstract provided.

Religious Institutions, The No-Harm Doctrine, And The Public Good, Marci A. Hamilton

BYU Law Review

No abstract provided.

Defending A Rule Of Institutional Autonomy On "No-Harm" Grounds, Mark Tushnet

BYU Law Review

No abstract provided.

Bankruptcy Law And Inefficient Entitlements, Irit Haviv-Segal

ExpressO

The question as to the justification of bankruptcy law remains unanswered. The literature tends to emphasize the conflict and inability to compromise between the different normative outlooks of the insolvency law system. A deeper reflection on the existing theories of bankruptcy law reveals, however, that all theories share the same starting point: All theories share the understanding that efficiency considerations justify the enforcement of contractual bankruptcy arrangements. When the social theories call for increased levels of coercion and redistribution, these theories rely on normative considerations of distributive justice and rehabilitation values. They by no means rely on efficiency grounds. This …

Strict Liability For Gatekeepers: A Reply To Professor Coffee, Frank Partnoy

University of San Diego Law and Economics Research Paper Series

This article responds to a proposal by Professor John C. Coffee, Jr. for a modified form of strict liability for gatekeepers. Professor Coffee’s proposal would convert gatekeepers into insurers, but cap their insurance obligations based on a multiple of the highest annual revenues the gatekeepers recently had received from their wrongdoing clients. My proposal, advanced in 2001, would allow gatekeepers to contract for a percentage of issuer damages, after settlement or judgment, subject to a legislatively-imposed floor. This article compares the proposals and concludes that a contractual system based on a percentage of the issuer’s liability would be preferable to …

Ancillary Joint Ventures And The Unanswered Questions After Revenue Ruling 2004-51, Gabriel O. Aitsebaomo

ExpressO

Ever since the Internal Revenue Service (the "Service") issued Revenue Ruling 98-15… in which it emphasized "control" as a critical factor in determining whether a tax-exempt hospital that enters into a whole-hospital joint venture with a for-profit entity would continue to maintain its tax-exemption, practitioners and scholars alike have sought guidance from the Service regarding whether such "control" would also be required of an exempt organization that enters into an "ancillary joint venture" with a for-profit entity. In response, the Service issued Revenue Ruling 2004-51 on May 6, 2004.

… In Revenue Ruling 2004-51, the Service enunciated that a tax-exempt …

Medical Malpractice And Contract Disclosure: An Equilibrium Model Of The Effects Of Legal Rules On Behavior In Health Care Markets, Kathryn Zeiler

Faculty Scholarship

This paper develops a theoretical model of how specific legal rules affect the types of contracts managed care organizations ("MCOs") use to compensate physicians. In addition, the analysis provides insights into how physician treatment decisions and the rate of medical malpractice lawsuits react to different legal rules. In particular, the model predicts that outcomes in jurisdictions forcing MCOs to disclose physician contract terms to patients differ from those that do not. Contracts vary depending on the disclosure rule and how treatment costs relate to expected damages and litigation costs. Moreover, the model predicts that jurisdictions forcing contract disclosure observe higher …

Econometric Methods In Staples, Jonathan Baker, Orley Ashenfelter, David Ashmore, Suzanne Gleason, Daniel Hosken

Articles in Law Reviews & Other Academic Journals

Econometrics played a major role in the investigation and litigation of the Federal Trade Commission's successful challenge to the proposed merger between two office superstore chains, Staples and Office Depot. Our goal in writing this essay is to describe the econometric issues at stake in evaluating the FTC's central claim that the price charged by office supply superstores was related to the number and identity of superstore firms participating in the market. Similar statistical models were relied upon by the FTC and the merging firms to analyze pricing. Our discussion of these models highlights the advantages and disadvantages of alternative …

Whose Public?: Parochialism And Paternalism In State Charity Law Enforcement, Evelyn Brody

All Faculty Scholarship

This piece was inspired by the increasing tendency of State attorneys general – backed up by courts and legislatures – to effectively confiscate the assets of wealthy nonprofits through overreaching enforcement actions. The article develops a legal framework for ascertaining the proper State role. It reviews many case studies including, most notoriously, the thwarted diversification of the Milton Hershey School Trust out of Hershey Foods Corporation (an investment worth over $5 billion) – thereby preserving the local operations of a publicly traded company. While few state attorneys general have the funding and inclination to engage in aggressive charity enforcement, the …

The Effects Of Ballot Position On Election Outcomes, Jonathan G.S. Koppell, Jennifer A. Steen

Publications from President Jonathan G.S. Koppell

This article presents evidence of name-order effects in balloting from a study of the 1998 Democratic primary in New York City, in which the order of candidates' names was rotated by precinct. In 71 of 79 individual nominating contests, candidates received a greater proportion of the vote when listed first than when listed in any other position. In seven of those 71 contests, the advantage to first position exceeded the winner's margin of victory, suggesting that ballot position would have determined the election outcomes if one candidate had held the top spot in all precincts.

Investing In The Close Corporation: What The Minority Shareholder Needs To Know Before Giving Up Money And Power, Shawn Diedtrich

ExpressO

Much of the focus in business planning and choice of entity is spent on tax considerations, startup financing, and liability issues owed to the world outside of the entity. Little attention, if any, is given to fiduciary duties between the owners. Even if a discussion occurs, it is likely to focus on the duties of majority owners and/or managers. The surprise comes when a minority owner finds out it may owe a fiduciary duty to the majority—a non-intuitive result. This article attempts to serve as an aid to a minority investor before committing to the investment in a startup close …

The Essentially Contested Nature Of The Concept Of Sovereignty: Implications For The Exercise By International Organizations Of Delegated Powers Of Government, Dan Sarooshi

Michigan Journal of International Law

The relationship between the concept of sovereignty and international organizations is often posed as being problematic. The establishment and subsequent operations of international organizations are often characterized as involving the 'loss' of a State's sovereignty and as such have been viewed with suspicion, if not antagonism, by certain domestic commentators. The response in legal journals by supporters of international organizations has been too narrow, technical, and often simply reaffirms the fears of the domestic commentators by focusing on how the organization's exercise of powers constrains the State in the exercise of its powers. The approach adopted herein is different. It …

Advocacy In Whispers: The Impact Of The Unsaid Global Gag Rule Upon Free Speech And Free Association In The Context Of Abortion Law Reform In Three East African Countries, Patty Skuster

Michigan Journal of Gender & Law

In 2001, President George W. Bush restricted the participation in democratic processes for non-governmental organizations (NGOs) abroad by reinstating a policy restricting family planning funding granted by the United States Agency for International Development (USAID). The restriction sharply curtailed the ability to speak and to associate freely for organizations working to preserve women's health and lives. For this reason, I refer to the restriction as the Global Gag Rule (GGR). Organizations in Uganda, Ethiopia, and Kenya had begun to identify the problems associated with their countries' restrictive abortion laws. In these three countries, as elsewhere in the world, illegal abortions …

Sin, Salvation, And The Law Of Charities, Corwin R. Kruse

William Mitchell Law Review

Review of Governing Nonprofit Corporations: Federal and State Law and Regulation. By Marion R. Fremont-Smith. Belknap Press, 2004. 570 pages, $95.

Charitable State Registration And The Dormant Commerce Clause, Charles Nave

William Mitchell Law Review

Charitable solicitation in the U.S. is regulated by “the several States.” For most of the nation's history, charities tended to be local endeavors, raising money and providing relief in their immediate vicinities. In the latter half of the twentieth century, charities increasingly grew beyond these local origins as new technologies enabled even the smallest charities to develop a national reach with direct mail and telemarketing campaigns. Nevertheless, primary authority for regulating charitable solicitations remained with the states.

Note: Get The Balance Right: Finding An Equilibrium Between Charitable Solicitation, Fraud, And The First Amendment In Illinois Ex Rel. Madigan V. Telemarketing Associates, Inc., 538 U.S. 600 (2003), Christopher R. Sullivan

William Mitchell Law Review

This Note first examines the history of the relevant law in the areas of fraud, charitable solicitation, and prior restraints. Specifically, it examines the three leading cases on regulation of charitable fundraising speech: Schaumburg, Munson, and Riley. Next, the Note discusses the history and holding of Illinois ex rel. Madigan v. Telemarketing Associates, Inc. Next, this Note will explore the holding in Telemarketing Associates in light of Schaumburg and its progeny. This analysis includes a survey of recent and pending fraud litigation against charities and their fundraisers, and a review of the Federal Trade Commission's “Operation Phoney Philanthropy.” Finally, the …

Tax-Exempt Organizations And Internet Commerce: The Application Of The Royalty And Volunteer Exceptions To Unrelated Business Taxable Income, Leeanna Izuel, Leslie Y. Park

William Mitchell Law Review

The Internet has created new opportunities for both large and small tax-exempt organizations (EOs) to raise funds through relationships with online vendors and “charity malls.” EOs provide hyperlinks to online vendors' websites through affiliate arrangements. In return, EOs receive payments based on a percentage of sales made at the vendor websites attributable to the EOs' hyperlinks. EOs also enter into payment arrangements with charity malls. Charity malls are commercial websites that provide hyperlinks to online vendors and attract consumers by pledging to donate a percentage of any purchases made through the malls to charity. There is no express authority stating …

Opining On The 501(C)(3) Tax-Free Bond Transaction: Avoiding Common Borrower's Counsel Misconceptions, Gina M. Torielli

William Mitchell Law Review

There are two areas where borrowers’ counsel can easily misstep when representing a charitable organization in a tax-exempt bond deal. The first is failing to recognize that “private business use” under § 145 can (and does) result in situations that would not constitute an “unrelated trade or business” of the borrower. The second occurs when borrowers’ counsel conflate the test for “unrelated business taxable income” under § 512 with the use of “unrelated trades or businesses” in the definition of a qualified 501(c)(3) bond under § 145. A mistake in either of these areas could lead to an erroneous opinion …

The Limits Of Business Limited Liability: Entity Veil Piercing And Successor Liability Doctrines, John H. Matheson

William Mitchell Law Review

The quest for limited liability in business enterprises and transactions has been a driving force in the development of business organization law for centuries. The historical development of corporations and limited partnerships evidences this primary goal. The recent development of the modern forms of limited liability partnerships and limited liability companies proves that this quest continues unabated. In addition, parties to significant business transfer transactions have long sought by construct and contract to apportion and limit their respective legal responsibilities and liabilities. Counterbalancing this inexorable trend toward limited liability has been the penchant of common law jurisprudence to define its …

Quest For Cash: Exempt Organizations, Joint Ventures, Taxable Subsidiaries, And Unrelated Business Income, J. Patrick Plunkett, Heidi Neff Christianson

William Mitchell Law Review

Most “for-profit” or “business” activities of exempt organizations take one of three forms: (A) The exempt organization may undertake to perform the business activities within the existing structure of the exempt organization. (B) The exempt organization may form a “taxable” subsidiary or affiliate which will perform the business activities. (C) The exempt organization may “partner” with other individuals and entities (both nonprofit and for-profit) to form a corporation, limited liability company (LLC), partnership, joint venture, strategic alliance, or other collaborative effort which will perform the “for-profit” activities. Depending in part upon which of these forms is chosen, any business activities …

The Changing Accountability Climate And Resulting Demands For Improved Fiduciary Capacity Affecting The World Of Public Charities, Ellen W. Mcveigh, Eve R. Borenstein

William Mitchell Law Review

In the wake of the scandals at major corporations such as Enron and WorldCom, attorneys general of several states are proposing additional legislative reforms to ensure financial accountability of nonprofit organizations, and both the Senate Finance Committee and House Ways and Means Committee have recently held hearings on proposed reforms for exempt organizations. These increasing demands for accountability have, in turn, amplified the pressure on boards of directors of all nonprofit organizations to govern effectively. But what is effective governance in this new climate of accountability, particularly for organizations holding exalted status under I.R.C. § 501(c)(3) and concomitant “public charity” …

Decoupling Tax Exemption For Charitable Organizations, Charles A. Borek

William Mitchell Law Review

[T]his article proposes a new approach to defining the term “charitable” for tax purposes that both respects the essence of tax-exempt eleemosynary activity and injects an element of clarity that has eluded the use of the term in modern tax parlance. Part I traces the evolution of the legal concept of charity, with emphasis on the shift in focus from poverty relief to social action facilitated through the device of trust law. I argue that it is in this shift of emphasis that the concept of charity became entangled in property concepts and thereby transformed into something wholly unrelated to …

A Crash At The Crossroads: Tax And Campaign Finance Laws Collide In Regulation Of Political Activities Of Tax-Exempt Organizations, Elizabeth Kingsley, John Pomeranz

William Mitchell Law Review

[T]his article will look at the tax law's definitions of “political” activity by § 501(c)(3)s, other § 501(c)s, and § 527s, identifying the many points of congruence and the occasional important differences. We further attempt to explain why the FEC's detour onto the slippery pavement of tax law led to this crash, and why attempts to follow the tax law's definitions of political activity will inevitably lead regulatory efforts astray. The legal roads of tax and election law begin from different policy rationales, intersect in seemingly similar concepts, but then proceed to wildly different legal destinations. We conclude with a …

Review Of Rethinking Refugee Law, By N. Nathwani. , James C. Hathaway

Reviews

It is a wonderful thing when a work of scholarship is published just as policymakers are struggling with the issues that it seeks to address.

Humanitarian Inviolability In Crisis: The Meaning Of Impartiality And Neutrality For U.N. And Ngo Agencies Following The 2003-2004 Afghanistan And Iraq Conflicts, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

Introduction. Humanitarian inviolability is the ability of humanitarian relief agencies, whether official agencies such as the office of the United Nations High Commissioner for Refugees (UNHCR) or private organizations such as the International Committee of the Red Cross (ICRC), to act in situations of extreme human need and suffering, particularly in circumstances of armed conflict, with the assurance that their personnel, their property, and their activities will not be made the object of attack. It is a concept that is at the core of all humanitarian relief work, especially during war, when the cooperation of the belligerent parties is essential …

The Irrelevance Of State Corporate Law In Governance Of Public Companies, J. Robert Brown Jr.

University of Richmond Law Review

No abstract provided.

The Varied Policies Of International Juridical Bodies- Reflections On Theory And Practice, John H. Jackson

Michigan Journal of International Law

It can be seen that "fragmentation" can have several dimensions, and that the difference between juridical approaches as well as legislative approaches to treaty or other norm stating documents can result not only from different institutional settings, but also from different policy goals assumed for differing dispute settlement systems.