Law Commons^™

The Natural Property Rights Straitjacket: The Takings Clause, Taxation, And Excessive Rigidity, Eric Kades

Eric A. Kades

Natural property rights theories have become the primary lens through which conservative jurists and scholars view the Constitution’s main property rights provision, the Takings Clause. One of their most striking arguments is that progressive income taxation — applying higher tax rates to higher incomes — is an unconstitutional taking of wealthy taxpayers’ property. This has become part and parcel of well-established battle lines between conservative property rights advocates and their liberal counterparts. What has gone unnoticed is that the very same argument deployed against progressive taxation also deems regressive taxation — applying lower tax rates to higher incomes — an …

Reforming The Regulation Of Political Advocacy By Charities: From Charity Under Siege To Charity Under Rescue?, Adam Parachin

Adam Parachin

A newly elected liberal federal government in Canada has pledged to reform the legal distinction between charity and politics. This paper provides context to this reform initiative, linking it to a controversial political activities audit program funded by the former conservative federal government. It identifies three distorting ideas about charity—that charity can be understood as a tax expenditure, economic or neutral concept—that should be eschewed in the reform process. It also identifies three characteristics of charity—the capacity of charities for thought leadership, the pervasiveness of messaging in charitable programming and the distinctiveness of charity and government—that should guide reformers.

Rejecting Charity: Why The Irs Denies Tax Exemption To 501(C)(3) Applicants, Terri Lynn Helge

Terri L. Helge

New charitable organizations generally must file an application for exemption (Form 1023) and await approval from the Internal Revenue Service. Unfortunately, the criteria the Internal Revenue Service uses to evaluate applications has not always been transparent. If an application is approved, the Internal Revenue Service determination letter and the application for exemption are required to be made publicly available and can be requested from the Internal Revenue Service or the organization itself. Prior to 2004, in the case of denials, neither the application nor the Internal Revenue Service’s correspondence setting forth its rationale for the denial were made publicly available. …

Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …

Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law - both before and after the landmark Employment Division v. Smith decision - reveals that the prohibition …

Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …

Grasping Smoke: Enforcing The Ban On Political Activity By Charities, Lloyd Histoshi Mayer

Lloyd Hitoshi Mayer

The rule that charities are not allowed to intervene in political campaigns has now been in place for over fifty years. Despite uncertainty about the exact reasons for Congress' enactment of it, skepticism by some about its validity for both constitutional and public policy reasons, and continued confusion about its exact parameters, this rule has survived virtually unchanged for all of those years. Yet while overall noncompliance with the income tax laws has drawn significant scholarly attention, few scholars have focused on violations of this prohibition and the IRS' attempts to enforce it. This Article focuses on the elusive issue …

The Taxation Of Cause-Related Marketing, Terri Lynn Helge

Terri L. Helge

With the economy in turmoil, charitable organizations are looking to nontraditional sources of financing to supplement contributions and fee-based revenues. One potentially lucrative source of revenue stems from cause-related marketing. Cause-related marketing is the public association of a for-profit company with a charitable organization to promote the company’s product or service in order to raise money for the charitable organization. Introduced almost twenty-five years ago, cause-related marketing has now become a $1 billion a year industry. Cause-related marketing has evolved beyond mere use of a charitable organization’s name to an apparent union for the purpose of promoting products that carry …

On Becoming Charitable: Predicting And Encouraging Charitable Bequests In Wills, Kristine Knaplund

Kristine Knaplund

On Becoming Charitable: Predicting and Encouraging Charitable Bequests in Wills Kristine S. Knaplund, Professor of Law What causes people to leave their property to charity in their wills? Many scholars have explored the effects of tax laws on charitable bequests, but now that more than 99% of Americans’ estates are exempt from federal taxes, what non-tax factors predict charitable giving? This Article explores charitable bequests before the federal estate tax and a deduction for charitable bequests were enacted by Congress. By examining two years of probate files in Los Angeles and St. Louis, in which 16.6% of St. Louis testators, …

Raising Revenues For Charity: Auctions Versus Lotteries, Bart Wilson, Douglas Davis, L. Razzolini, R. Reily

Bart J Wilson

No abstract provided.

Re-Focusing On Philanthropy: Revising And Re-Orienting The Standard Model, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This paper undertakes a detailed analysis of today’s standard theory of the philanthropic sector, in order to provide a new model that is both more accurate in its details and more comprehensive in its scope. The standard theory accounts for the philanthropic sector as subordinate and supplementary to our capitalist market economy and liberal democratic polity. That approach has two basic short-comings: Its explanation of both the state and philanthropy as adjuncts to the market fails to appreciate the ways in which all three sectors support and supplement each other. Even more basically, the standard model’s primary focus on the …

Compromising The Safety Net: How Limiting Tax Deductions For High-Income Donors Could Undermine Charitable Organizations, Patrick Tolan

Patrick E. Tolan Jr.

President Obama’s recent budget proposals have contemplated reducing the top rate for charitable deductions (and all itemized deductions) to twenty-eight percent. Because America’s largest donors are those in the highest marginal tax brackets, efforts to limit deductibility of charitable donations could have a chilling effect on charitable giving.

In this article the author looks at motivations for charitable donations and specifically at the impact of tax deductibility as a motivating factor. It takes a historical look at the philanthropic surveys and econometric models and examines empirical data concerning impacts of significant changes to the tax code in the 1980s that …

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H. Byrnes

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The ancient Hebrews were the first civilization to establish a charitable framework for the caretaking of the populace. The Hebrews developed a complex and comprehensive system of charity to protect the needy and vulnerable. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity.

The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity …

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes

William H. Byrnes

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H. Byrnes

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The ancient Hebrews were the first civilization to establish a charitable framework for the caretaking of the populace. The Hebrews developed a complex and comprehensive system of charity to protect the needy and vulnerable. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity.

The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity …

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H. Byrnes

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity. The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity by exploring the living conditions of the poor. The second half concludes with a description of the Jewish laws, Mishnah and Talmudic commentary, as well as the practice and codification of Rabbinical teaching that …

Vincentian Leadership—Advocating For Justice, Craig B. Mousin

Craig B. Mousin

DePaul University employs thousands of people. As Craig Mousin writes, “To do justice to those we seek to serve necessitates that we do justice to those who engage in our work.” He explores “the centrality of work to life and mission” (including the personal and individual missions employees have for themselves) and what justice in the workplace means. He “examine[s] historical concepts of justice to understand what an advocate of justice works toward in a Vincentian institution.” Mousin also discusses how Vincentian leadership principles and “understandings of justice” should be applied in employment situations, especially when the law might advise …

The "Independent" Sector: Fee-For-Service Charity And The Limits Of Autonomy, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

Although numerous scholars have attempted to explain and justify the benefits provided to charities, none has been completely successful. Their theories share, however, two required characteristics for charities. First, charities must be distinct from other types of entities in society, including governmental bodies, businesses, other types of nonprofit organizations, and informal entities such as families. Second, charities must provide some form of public benefit. Focusing on these common characteristics reveals a previously not fully appreciated role for the laws governing charities: protecting charities from influences that could potentially undermine these traits. Applying this new “autonomy perspective” to the law governing …

How To Plan & Execute Your Own Charity Tennis Event: The Aquinas League Model, Beau James Brock, H. Barry Searles

Beau James Brock

Aquinas League is a volunteer community organization whose goal has been to plan and execute community tennis fund-raisers over the past eight years in Baton Rouge, Louisiana. During this period, Aquinas League has organized over twenty events and our community has risen over $1 million dollars in net donations for area charities Hopefully through this guide, you and your committee can pick some helpful points to enhance your event. The revenue and quality of each part of your tournament should be viewed as a showcase for the marketing of the next year’s event. The best sales tool we can offer …

Vote For Charity's Sake, Aaron S. Edlin, Andrew Gelman, Noah Kaplan

Aaron Edlin

In a battleground state like Colorado or New Mexico, voting in the presidential election may be equivalent to giving $30,000 - $50,000 to others in expected value, and as such is an extremely efficient form of charity.

For-Profit Philanthropy, Dana Brakman Reiser

Dana Brakman Reiser

This essay examines Google’s adoption of the novel and unorthodox for-profit philanthropy model. Google created a division of its for-profit company that is tasked with pursuing philanthropic activities. Specifically, this division is responsible for addressing the global issues of climate change, poverty, and emerging diseases. Of course, companies have long blended philanthropic and business objectives. They make contributions, commit to corporate social responsibility, or even form as social enterprises. For-profit philanthropy, though, differs from these familiar techniques in both structure and scale. Likewise, for-profit philanthropy stands in stark contrast to the nonprofit, tax-exempt form of organization typically used by those …

The Corporate Common Good: The Right And Obligation Of Managers To Do Good To Others, Edward Lyons

Edward C. Lyons

In this Article we articulate a model of managerial freedom - and even obligation - to engage in philanthropic activity differing in significant respects from that described by Germain Grisez in his influential work of Christian ethics "The Way of the Lord Jesus: Difficult Moral Questions." We argue that Grisez's conception of a corporation as essentially ordered to the economic benefit of its stakeholders unnecessarily restricts a corporate manager's freedom of action. While Grisez denies that bald profit maximization is an appropriate standard for economic activity, it is difficult to avoid the conclusion that he eventually falls back into what …

Grasping Smoke: Enforcing The Ban On Political Activity By Charities, Lloyd Histoshi Mayer

Lloyd Hitoshi Mayer

The rule that charities are not allowed to intervene in political campaigns has now been in place for over fifty years. Despite uncertainty about the exact reasons for Congress' enactment of it, skepticism by some about its validity for both constitutional and public policy reasons, and continued confusion about its exact parameters, this rule has survived virtually unchanged for all of those years. Yet while overall noncompliance with the income tax laws has drawn significant scholarly attention, few scholars have focused on violations of this prohibition and the IRS' attempts to enforce it. This Article focuses on the elusive issue …

The Choose-Your-Charity Tax: A Way To Incentivize Greater Giving, Aaron S. Edlin

Aaron Edlin

Raising Revenues For Charity: Auctions Versus Lotteries, Bart Wilson, Douglas Davis, L. Razzolini, R. Reily

Bart J. Wilson

No abstract provided.