Tuesday, February 26, 2008
Lloyd Hitoshi Mayer (Notre Dame) presents Public Benefits, Private Benefits, and Charities at Notre Dame today as part of its Faculty Workshop Series. Here is the abstract:
This presentation explores the role of charities in society as compared to the roles of other organizations, including businesses, governments, families, and other types of nonprofits. Building on the familiar market and government failure theories and further developing related theories applicable to kinship groups and mutual benefit nonprofits, the presentation determines that the role of charities is to provide certain goods and services that none of these other types of organizations are capable of providing as efficiently. It then examines how the law can serve two functions, first by limiting charities to that role and second by not unduly inhibiting them from fulfilling that role the fullest. It concludes that while the traditional public benefit / no private benefit requirement serves the first function and the many legal advantages that charities enjoy serve the second function, the public benefit requirement will hinder the second function unless public benefit is defined broadly. At the same time, the private benefit prohibition will only be a sufficient check on charities if it is also defined broadly and strictly enforced. The presentation also explores whether other restrictions on charities, including the commerciality doctrine, the lobbying limitation, and the political campaign intervention prohibition are consistent with these functions for the law.