In Memoriam: A Tribute to Professor Howard L. Oleck
| VOLUME
27 |
Fall 1997
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NUMBER
2 |
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Theories of the Federal Income Tax Exemption for Charities: Thesis, Antithesis, and Syntheses
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Rob Atkinson |
| In this piece, Professor Atkinson explores three theoretical bases for federal income tax exemption of charitable organizations. With regard to each theory, he first examines a "worthiness issue" to determine what qualities organizations have to gain this favored treatment. He then turns to a "fit issue" to determine whether the charitable status is the appropriate means to encourage such worth. Professor Atkinson concludes that the exemption is best defended as a means of promoting "meta-benefits," such as economic efficiency and selfless regard for others |
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Hocking the Halo: Implications of the Charities' Winning Briefs in Camps Newfound/Owatonna, Inc.
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Evelyn Brody |
| Professor Brody examines the United States Supreme Court's decision in Newfound/Owatonna, Inc. v. Town of Harrison, which overturned a state law that granted property tax exemption only to charities primarily serving state residents. The Court held, in a 5-4 decision, that the Maine statute violated the Commerce Clause of the United States Constitution. Brody focuses on the argument of the petitioner charity, which stressed the financial impact of the statute, but ignored the residency of the charity's beneficiaries. Brody concludes that this decision, while a short-run tactical victory, will harm long-term interests by limiting a charity's ability to justify distinct treatment and subsidies in the future. |
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The Historical Role of the First Amendment in Charitable Appeals
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Errol Copilevitz |
| In this article, Mr. Copilevitz explores the role of the First Amendment in nonprofit organization cases. Copilevitz traces the evolution of government dependence on nonprofit organizations over the last fifty years. The resulting increase in the need for mass public appeal to raise funds for these charities has shaped the dynamics of nonprofit regulation. Copilevitz’s observations center around the landmark Supreme Court case Shaumburg v. Citizens for a Better Environment, which solidified the change in emphasis from religious freedom considerations to pure speech protection when analyzing regulation of an appeal for support. |
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Securities Regulation of Fundraising Activities of Religious and Other Nonprofit Organizations
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Timothy L. Horner, Hugh M. Makens |
| Authors Timothy L. Horner and Hugh H. Makes provide an overview of federal and state securities laws that govern the sale of securities by nonprofit organizations. Nonprofit organizations regularly engage in Fund-raising activities that involve the issuance of securities. Focusing on the impact of the Philanthropy Protection Act of 1995 and the National Securities Markets Improvement Act of 1996, the authors describe the actions required for nonprofit corporations to comply with securities laws that may apply to Fund-raising. |
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"B" v. "K" Plans: A Comparison of Broadbased Plans Under Section 403(b) and Section 401(k) After JOPA
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J. Edward Shillingburg |
| The Small Business Job Protection Act of 1996 (JOPA) expanded the availability of § 401(k) savings plans ("K plans"), making them available to most nonprofit organizations. Mr. Shillingburg details this change, and discusses whether nonprofit organizations should take advantage of the new law. He also discusses how JOPA affects § 403(b) plans ("B plans"), which prior to JOPA were a common retirement benefit for nonprofit organizations' employees. Mr. Shillingburg compares the features and technical requirements of B plans and K plans, and concludes that most organizations should continue to offer B plans, despite the availability of K plans. |
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This Article Has No Footnotes: An Essay on RFRA and the Limits of Logic in the Law
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Steven D. Jamar |
| Professor Jamar uses the Religious Freedom Restoration Act to explore some of the limits of logic in the law. Ultimately Professor Jamar demonstrates that although logic is an important and powerful instrument, it ought not be treated as the final arbiter of any law's validity and justness. The logical "flaws" of RFRA, i.e., its ambiguity, its tangling of the legal hierarchy, and its creation of a seeming paradox, may be eliminated (or at least resolved in a sufficiently satisfactory fashion) by appeals to other, extra-logical values of foundational importance in the law, such as real experience, history, and common sense. |
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After the Dusko Tadic War Crimes Trial: A Commentary on the Applicability of the Grave Breaches Provisions of the 1949 Geneva Conventions
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Doretha Beane |
| In this essay, Professor Beane examines issues surrounding the International Criminal Tribunal for the Former Yugoslavia’s recent acquittal of Dusko Tadic on various counts related to war crimes. She first presents a background for the atrocities taking place at the Omarska camp by discussing pertinent historical development. She then discusses the creation of the Tribunal. Professor Beane focuses on Judge McDonald’s dissent, arguing that the Bosnian conflict was sufficiently international in character to trigger Article 2 of the Geneva Conventions of 1949. The author concludes by indicating concern for the ICC’s credibility and encouraging the adoption of a more realistic interpretation of what constitutes internal/international conflict. |
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Beyond Contempt - Rethinking the Problem of Juvenile Crime
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Hon. Jay B. Rosman |
| Judge Rosman uses the debate over whether a juvenile judge may use secure detention to punish dependent children held in indirect contempt of court to expose a wide range of concerns underlying Florida's approach to juvenile justice. Judge Rosman argues that in terms of cost effectiveness and basic morality, Florida should develop and commit to a statewide system dedicated to rehabilitating youthful offenders. |
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Resolution of Trade Disputes by Chapter Nineteen Panels: Long-Term Solution of Interim Procedure of Dubious Constitutionality?
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Hon. Gregory W. Carman |
| In a piece adapted from his recent speech at the Annual Dinner of the Customs and International Trade Bar Association, Judge Carman discusses the use of binational panel determinations under the North American Free Trade Agreement and the United States-Canada Free Trade Agreement. These panels are a means for trade partners to resolve disputes arising from countervailing and antidumping duty laws. Judge Carman discusses problems surrounding the panels' limited scope of review, and questions whether the panels are consistent with the United States Constitution. He concludes that the United States should use caution in submitting to this dispute resolution mechanism. |
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Parental Responsibility Statutes - And the Programs that Must Accompany Them
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Jason Emilios Dimitris |
| In addressing the epidemic of juvenile crime, many states have implemented some sort of parental responsibility statute that holds parents criminally liable for their failure to control their children. This Comment examines representative statutes and discusses the advantages and disadvantages of holding parents criminally accountable for their children's acts. Further, this Comment discusses social programs that states can effectively use in conjunction with parental responsibility statutes. The Author concludes that parental responsibility statutes, when used in conjunction with the proper combination of social support programs, can be effective tools in curing society's juvenile crime problem. |
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Comparative Fault as a Tool to Nullify the Duty to Protect: Apportioning Liability to a Non-Party Intentional Tortfeasor in Stellas v. Alamo Rent-a-Car, Inc.
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Theresa L. Fiset |
| Ms. Fiset explores the recent case of Stellas v. Alamo Rent-a-Car, Inc., in which the jury returned a verdict holding the defendant liable for negligently failing to protect the plaintiff from a criminal attack on a Miami street. Notwithstanding the verdict, the court held that Florida's Comparative Fault Statute required the jury to consider the criminal attacker's fault when apportioning liability for the plaintiff's damages. The jury apportioned 90% of the liability to the non-party criminal attacker. Ms. Fiset argues that the court erred by ignoring the principles of duty and legal causation to search outside the parameters of the cause of action to find culpable parties. Ms. Fiset further suggests that comparative fault suggests a slight modification in the application of the common-law distinction between negligent and intentional acts. |
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The Argument for Faculty Diversity: Recommendations After Taxman v. Board of Education
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Brendan M. Lee |
| In this Note, Mr. Lee examines the aftermath of Taxman v. Board of Education, in which the Third Circuit declared that the goal of achieving or maintaining racial diversity cannot justify a race-based employment decision. Mr. Lee criticizes the sweeping Third Circuit opinion, which limits affirmative action solely to remedial instances involving past discrimination. Mr. Lee recommends acknowledging the unique concerns of education and recognizing faculty diversity as a valid goal, therefore utilizing the benefits of a diverse faculty without expanding the reach of affirmative action. |
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