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Saturday, November 27, 2004

Brody Takes Issue with Review of Fremont-Smith's Governing Nonprofit Corporations

Freemontsmith_3Evelyn Brody (Chicago-Kent), takes issue with Corwin Kruse's review of Marion R. Fremont-Smith, Governing Nonprofit Corporations: Federal and State Law and Regulation (Harvard Univ. Press, 2004), Sin, Salvation, and the Law of Charities, 31 Wm. Mitchell L. Rev. 383 (2004), blogged here on Tuesday. Here is Evelyn's critique, originally posted on the TaxProf Email Discussion Group (and reprinted here with permission for the benefit of the broader tax community):

I am writing to disagree strongly about recommending this uninformed review of Marion Fremont-Smith's new book on nonprofit regulation. The review author (a student) has no appreciation for the landmark status of this book. Most important, in claiming that it is "unlikely that attorneys experienced in the area of nonprofit law will find much new in this work" but that "the book would prove useful for students or for practitioners who occasionally work with charities and desire an overview of the legal landscape," the review author betrays a fundamental lack of understanding of the practice of nonprofit law. Most firms do not have a "nonprofit law" department: The problems of nonprofit clients are handled primarily by tax lawyers. But charity governance is not just (or even initially) a matter of tax-exemption, and corporate lawyers are similarly uninformed about the special considerations that apply to the organization and governance of nonprofit clients. It is precisely these otherwise able practitioners who will find Fremont-Smith's book essential. I cannot imagine practicing in this area without frequently consulting it.

In 1965 the Russell Sage Foundation published a volume carrying the deceptively modest title "Foundations and Government: State and Federal Law and Supervision." By writing this work, Marion Fremont-Smith single-handedly launched American regulation of charities as a rigorous field for legal scholarship and practice. While there is still no single "law of nonprofit organizations" – or even charity law – Fremont-Smith’s book endeavored to pull together the relevant common law and statutory provisions of property, wills and trusts, nonprofit corporations, as well as Federal and State tax laws. Nearly 40 years later, this classic volume has finally been replaced by the only legal expert qualified to do so: Fremont-Smith herself. Like the earlier project, the new book presents the history of philanthropy law in England and elsewhere, the evolution of American charity regulation by both Congress (through the tax code) and the States, and an analysis of the current weaknesses and recommendations for reform. Let me add that this book is the talk of the many nonprofit conferences I've attended since it was published in April, praised by regulators as well as practitioners.

By way of background, Fremont-Smith's experience with the regulation of nonprofit organizations began when she served in the early 1960’s as assistant attorney general and director of the Division of Public Charities in Massachusetts. She subsequently practiced with Choate, Hall & Stewart until 1997, when she became senior counsel and joined, as a senior research fellow, the Hauser Center for Nonprofit Organizations of the Kennedy School of Government at Harvard University. Among her numerous voluntary positions, Fremont-Smith has served on the boards of INDEPENDENT SECTOR, the Council on Foundations, and the Foundation Center, and as chair of the Exempt Organization Committee of the ABA Tax Section. Most recently, she and Joel Fleishman are serving as co-directors of the INDEPENDENT SECTOR’s Expert Advisory Group, assisting its Panel on the Nonprofit Sector respond to the invitation of the Senate Finance Committee for IS's recommendations to strengthen nonprofit governance.

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Comments

I've been practising law in Massachusetts since 1954. During that time Fremont-Smith has contributed heavily to continuing legal education programs in our state, and beyond. If Fremont-Smith were in "charge" of monitoring nonprofits, there surely would not have been the scandals that have occurred too often in that sector. Kudos to Fremont-Smith, and to Brody for her defense.

Posted by: Shag from Brookline | Nov 27, 2004 3:52:46 AM

I cannot help but respond to Evelyn Brody's comments. Despite her suggestion to the contrary, I fully understand that "[m]ost law firms do not have a 'nonprofit law' department." Moreover, I never argued that they did. Attorneys practicing in other departments may, nonetheless, be "experienced in the area of nonprofit law." I know several; one of whom (with 23 years experience) commented to me after the review was published that she also found Fremont-Smith's book to be "interesting, but not earth-shaking" and noted that it didn't present much information that she found novel.
Brody also notes that "corporate lawyers are similarly uninformed about the special considerations that apply to the organization and governance of nonprofit clients. It is precisely these otherwise able practitioners who will find Fremont-Smith's book essential." This is exactly my point--those whose experience in the area is limited will be those for whom the book will be most useful.
Much of my review was spent discussing (and praising) the book--a point overlooked by Brody. There is, however, a difference between academic and practical utility. Brody is welcome to attack me as "uninformed," but I stand by my (generally positive) review.

Posted by: Corwin Kruse | Apr 25, 2005 7:55:58 AM