Bringing Candor to Charitable Solicitations

The American public donates a staggering amount of money to nonprofit charities. These charities routinely solicit and receive money from donors for specific, earmarked purposes. Often, however, charities ignore their obligations to use money for these designated uses. In many circumstances, even a seemingly benign redirection of earmarked gifts for other charitable purposes could constitute fraud and misrepresentation. Breaking the implicit or explicit promise to use money in a designated manner harms donors, charities, and the public. Prospective donors assess the value of charitable donations in a manner similar to the way they value consumer goods and services and can be swayed by false claims. Accordingly, allowing distortions of perceived value misleads donors when they are directing their charity. In light of detailed examinations of charitable-organization spending practices, this Article will propose that charities should adhere to a new, higher level of candor in their public communications. Maintaining a renewed, scrupulous approach to disclosure would, in Chief Justice John Marshall’s parlance in Trustees of Dartmouth College v. Woodward, ensure “that the charity will flow . . . in the channel” that the donors expressly choose

Explaining Bait-and-Switch Regulation

“Bait and switch” can describe a range of commercial behaviors common in the everyday marketplace, but virtually ignored in the academic literature. The traditional definition of unlawful bait and switch applies to insincere offers to sell one item in order to induce the buyer to purchase another. Certain sellers have historically employed bait-and-switch tactics, including urban retailers, aluminum siding companies, and supermarkets. Colloquially, this definition can also cover lawful or other borderline sales tactics, including the use of teaser rates or low introductory pricing, or even “free offers.” Even common lawful tactics, like the deliberate routing of customers past other retail displays on their way to purchase high-volume or featured items, may involve “bait” to induce other purchases. Why are some of these behaviors lawful and others unlawful? In this Article, I examine several different flavors of bait-and-switch tactics, exploring the underlying behaviors behind the tactics and the welfare implications of regulating them. Looking to the literature on commercial custom and norms, I find a pattern showing that bait-and-switch practices that align with custom and norms tend to be lawful, and those that do not tend to be unlawful. Welfare advancement seemingly plays a distant secondary role in explaining bait-and-switch regulation. My finding should compel regulators to consider whether the goal of elevating the market atmosphere by banning offensive behavior should trump welfare concerns. Further, my conclusion can also help advocates shape more effective arguments for adjusting trade practice regulation

Do We Need a Bar Exam . . . For Experienced Lawyers?

The fierce determination to require a bar exam during the COVID-19 pandemic left quite an impression on new lawyers entering the profession. State bars and state supreme courts made their position clear: the bar exam provides a screening function necessary to safeguard the public. Many disagreed. Even a cursory look at attorney discipline reveals that the lawyers who get into disciplinary trouble are not mostly new lawyers. The lawyers who get into trouble tend to be more experienced lawyers, who have not had any formal or objective tests of their ability to function since their original bar exam pass. The only check on their performance is discipline after harm has been done. Regulators deem the bar exam and character and fitness as necessary tests at the entry gate to the profession. As I contend in this Article, however, evidence supports regular administration of these tests throughout lawyer careers, not just at the beginning. I challenge the profession to consider whether the entirety of the current regime for assuring lawyer competency and quality can be improved to serve the public