Local Regulation of Charitable Solicitation

Most discussions of the policy context for nonprofits in the United States focus on federal or state restrictions. Fundraising charities, however, must comply not only with myriad state requirements but an uncertain number of local requirements as well. Based on a survey of the largest cities in the United States, I find that all of these cities have some restrictions on charitable solicitation. Several of the cities also impose extensive registration requirements and other restrictions. These findings highlight the need for nonprofits to be aware of local regulation of their activities

Why We Need Reed: Unmasking Pretext in Anti-Panhandling Legislation

The First Amendment severely disfavors content-based restrictions on speech in public areas. In its 2015 decision in Reed v. Town of Gilbert, the Supreme Court clarified the test for determining whether a speech restriction is content-based, ratcheting up the number of laws subject to strict scrutiny. While this decision has been criticized by some, I argue that, at least in the context of anti-panhandling legislation, Reed was a needed answer to local governments passing overly broad restrictions motivated by a desire to drive an unpopular type of speech from the city square. I use anti-panhandling ordinances from three local jurisdictions—the City Akron, the City of Fairlawn, and Summit County—as case studies in content-neutrality before and after Reed

Confidence in the Nonprofit Sector Through Sarbanes-Oxley-Style Reforms

Over the past several years, the nonprofit sector suffered a series of highly visible scandals that shook the public\u27s confidence in charitable organizations. Concerned politicians and nonprofit leaders responded with a variety of reforms inspired by the Sarbanes-Oxley Act. The Note focuses on three such reforms: requiring nonprofit officers certify financial statements, mandating audits of nonprofits\u27 financial statements, and imposing independent audit committees on nonprofit boards of directors. This Note argues that, contrary to the conclusions of many commentators, these reforms will provide a net benefit to the nonprofit sector by increasing donor confidence while imposing minimal costs

Interagency Litigation and Article III

Agencies of the United States often find themselves on opposite sides of the v. in disputes ranging from alleged unfair labor practices in federal agencies to competing statutory interpretations to run-of-the mill squabbles over money. Yet Article III\u27s case-or-controversy requirement includes—at a minimum—adverse parties and standing. Courts have disagreed with one another over the extent to which litigation between the sovereign and itself meets Article III standards. Despite the volume of scholarship on Article III standing, relatively little attention has been paid to Article III\u27s requirement of adverse parties in general, or the justiciability of intrabranch litigation in particular. Looking at both historical practice and modern Article III case law and scholarship, this Article finds meaningful jurisdictional limits on interagency litigation. When the only litigants in a case assert the sovereign prerogatives of the United States, there is no case or controversy within the meaning of Article III. This conclusion is supported by 200 years of case law and follows from what it means when the United States invokes its courts

Why We Need Reed: Unmasking Pretext in Anti-Panhandling Legislation

Over the past decade, there has been a dramatic increase in the number of areas where asking for help is restricted or banned. Whether called begging, panhandling, or solicitation, cities were spurred on by concerns of business owners and residents to ban or highly restrict this type of speech from occurring in public areas. Yet laws such as these have been repeatedly struck down by courts in recent months, fueled in large part by the Supreme Court’s decision in Reed v. City of Gilbert. In this essay I argue that, at least in the context of anti-panhandling legislation, Reed was a needed answer to local governments passing overly broad restrictions motivated by a desire to drive an unpopular type of speech from the city square. To illustrate my argument, I use anti-panhandling ordinances from three local jurisdictions—the City Akron, the City of Fairlawn, and Summit County—as case studies in content-neutrality before and after Reed. This essay relies on two primary arguments. First, I defend Reed’s clarification of the test for content-neutrality as a needed measure to prevent censorial purpose from being masked by local government in pretextual reasons. To develop this argument, I highlight the mischief caused in Reed by drawing on public records, newspaper articles, and other contemporary evidence of legislative intent to argue that anti-panhandling ordinances have become an exercise in concocting pretextual justifications that bear little resemblance to the true motives behind the restrictions. Second, I argue that the restrictions found in anti-panhandling ordinances locally and nationally are poorly tailored to satisfy any weighty, non-censorial government objective, and therefore are an unconstitutional abridgement of the right to ask for help. In fact, every single federal court in recent year (including several decisions issued over the past few months) has sided with free speech challengers to anti-panhandling laws. I tie both arguments together as a way of illustrating the problems with the City of Akron’s anti-panhandling law, which I am currently in the process of challenging

Choosing a Court to Review the Executive

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies. In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in suits challenging agency action. We conclude that the current scheme is both incoherent and, to the extent it favors direct review by circuit courts, unjustified. We conclude that initial review by district courts is, in general, the better option, and a clear divide is preferable to the ad hoc approach that Congress has favored. Along the way, we offer a new analytical framework for deciding which court should review the Executive

Courts, Constituencies, and the Enforcement of Fiduciary Duties in the Nonprofit Sector

Directors of nonprofit organizations owe fiduciary duties to their organizations, but the content of these duties—and how and when courts should enforce these duties—has long been debated among scholars and courts. This debate emerges in several areas, including the level of deference to be shown by courts to nonprofit directors (the business judgment rule), who should be allowed to sue to enforce duties (standing), and the type of relief available to prevailing plaintiffs (remedies). Existing literature explores these legal rules in isolation and in abstraction, generally failing to consider how the rules interact with each other and ignoring the empirical reality of the nonprofit sector. Because for-profit and nonprofit corporations evolved from a common ancestor, courts generally apply corporation law principles developed in the context of for-profit corporations to nonprofit corporations as well. But for-profit and nonprofit corporations often differ in key ways, including sources of income, constituencies, and other institutional characteristics. These differences make rote application of corporate law principles to nonprofit corporations a conceptually questionable endeavor. Rather than setting nonprofit rules through strained analogies to for-profit concepts of ownership and profit-maximization, we propose employing an analysis of institutional features that can operate in a whole range of governance contexts, including the nonprofit sector. This approach considers opportunities for voice and exit, impact range, homogeneity, and comparative competence between boards and courts, and it does so among different types of nonprofit actors, like directors, members, employees, donors, customers, and beneficiaries. Using this institutional analysis with for-profit corporation law as the baseline, we compare emerging legal rules in the nonprofit sector against existing empirical literature. We find that, with one exception, institutional characteristics vis-à-vis nonprofit actors are reasonably comparable to their for-profit counterparts, and we therefore place the applicable legal regime with respect to those actors on a more conceptually sound footing. However, beneficiaries of a nonprofit organization tend to lack opportunities for exit or voice, face risk of considerable deprivation, and often differ considerably in relevant aspects from the individuals who manage the organization. We argue that the law should take into account the limited power of beneficiaries in nonprofit governance structures, and we analyze options for reform

Courts, Constituencies, and the Enforcement of Fiduciary Duties in the Nonprofit Sector

Directors of nonprofit organizations owe fiduciary duties to their organizations, but the content of these duties—and how and when courts should enforce these duties—has long been debated among scholars and courts. This debate emerges in several areas, including the level of deference to be shown by courts to nonprofit directors (the business judgment rule), who should be allowed to sue to enforce duties (standing), and the type of relief available to prevailing plaintiffs (remedies). Existing literature explores these legal rules in isolation and in abstraction, generally failing to consider how the rules interact with each other and ignoring the empirical reality of the nonprofit sector. Because for-profit and nonprofit corporations evolved from a common ancestor, courts generally apply corporation law principles developed in the context of for-profit corporations to nonprofit corporations as well. But for-profit and nonprofit corporations often differ in key ways, including sources of income, constituencies, and other institutional characteristics. These differences make rote application of corporate law principles to nonprofit corporations a conceptually questionable endeavor. Rather than setting nonprofit rules through strained analogies to for-profit concepts of ownership and profit-maximization, we propose employing an analysis of institutional features that can operate in a whole range of governance contexts, including the nonprofit sector. This approach considers opportunities for voice and exit, impact range, homogeneity, and comparative competence between boards and courts, and it does so among different types of nonprofit actors, like directors, members, employees, donors, customers, and beneficiaries. Using this institutional analysis with for-profit corporation law as the baseline, we compare emerging legal rules in the nonprofit sector against existing empirical literature. We find that, with one exception, institutional characteristics vis-à-vis nonprofit actors are reasonably comparable to their for-profit counterparts, and we therefore place the applicable legal regime with respect to those actors on a more conceptually sound footing. However, beneficiaries of a nonprofit organization tend to lack opportunities for exit or voice, face risk of considerable deprivation, and often differ considerably in relevant aspects from the individuals who manage the organization. We argue that the law should take into account the limited power of beneficiaries in nonprofit governance structures, and we analyze options for reform

Courts, Constituencies, and the Enforcement of Fiduciary Duties in the Nonprofit Sector

Directors of nonprofit organizations owe fiduciary duties to their organizations, but the content of these duties—and how and when courts should enforce these duties—has long been debated among scholars and courts. This debate emerges in several areas, including the level of deference to be shown by courts to nonprofit directors (the business judgment rule), who should be allowed to sue to enforce duties (standing), and the type of relief available to prevailing plaintiffs (remedies). Existing literature explores these legal rules in isolation and in abstraction, generally failing to consider how the rules interact with each other and ignoring the empirical reality of the nonprofit sector. Because for-profit and nonprofit corporations evolved from a common ancestor, courts generally apply corporation law principles developed in the context of for-profit corporations to nonprofit corporations as well. But for-profit and nonprofit corporations often differ in key ways, including sources of income, constituencies, and other institutional characteristics. These differences make rote application of corporate law principles to nonprofit corporations a conceptually questionable endeavor. Rather than setting nonprofit rules through strained analogies to for-profit concepts of ownership and profit-maximization, we propose employing an analysis of institutional features that can operate in a whole range of governance contexts, including the nonprofit sector. This approach considers opportunities for voice and exit, impact range, homogeneity, and comparative competence between boards and courts, and it does so among different types of nonprofit actors, like directors, members, employees, donors, customers, and beneficiaries. Using this institutional analysis with for-profit corporation law as the baseline, we compare emerging legal rules in the nonprofit sector against existing empirical literature. We find that, with one exception, institutional characteristics vis-à-vis nonprofit actors are reasonably comparable to their for-profit counterparts, and we therefore place the applicable legal regime with respect to those actors on a more conceptually sound footing. However, beneficiaries of a nonprofit organization tend to lack opportunities for exit or voice, face risk of considerable deprivation, and often differ considerably in relevant aspects from the individuals who manage the organization. We argue that the law should take into account the limited power of beneficiaries in nonprofit governance structures, and we analyze options for reform

Equal Standing with States: Tribal Sovereignty and Standing after \u3ci\u3eMassachusetts v. EPA\u3c/i\u3e

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to special solicitude in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to special solicitude as well? We think they should be. To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. EPA; and reaching conclusions about the case’s driving principles. We conclude that one of the main reasons states get special solicitude is because they have, through federal preemption, lost much of their regulatory power. We then discuss the nature and scope of Indian sovereignty, canvassing the historical and legal narrative and where things stand today. We also note some of the key similarities and points of distinction between tribal and state sovereignty. From there, we put it all together, arguing that tribes (as sovereign entities) should enjoy the same special solicitude given to states in the standing context. We conclude that tribes are on the whole better positioned to advocate for environmental causes, making the case all the stronger for enhanced tribal standing