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Pay It Forward? Law and the Problem of Restricted-Spending Philanthropy
Get PDFAmerican foundations and other philanthropic giving entities hold about $1 trillion in investment assets, and that figure continues to grow every year. Even as urgent contemporary needs go unmet, philanthropic organizations spend only a tiny fraction of their wealth each year, mostly due to restrictive terms in contracts between donors and firms limiting the rate at which donations can be distributed. Law has played a critical role in underwriting and encouraging this build-up of philanthropic wealth. For instance, contributors can typically take a full tax deduction for the value of their contribution today, no matter when the foundation spends their money, and pay no tax on the investment earnings the organization reaps in the meantime.
What, if anything, justifies public support for “restricted spending” charity? This Article offers the first comprehensive assessment of that question, and supplies original empirical evidence on several key aspects of it. I argue that restricted spending sacrifices crucial information, introduces unnecessary agency costs, and on average transfers funds to times when they are less useful. While there is a place for large and long-lived philanthropic organizations in American society, that role does not require public support for restricted spending. As long as foundations can demonstrate their value to new donors, they will continue to thrive. I therefore set out a series of policy recommendations aimed at better reconciling nonprofit law and the principles that justify it.
I support my claims with new evidence drawn from a data set of over 200,000 firm-year observations of private foundations. For example, I find that foundations earn about twice as much money per year as in earlier studies funded by foundation-industry lobbyists, and that they are growing three times faster than those earlier studies suggest. This finding implies that law could require a much higher annual “payout” from foundations. I also find that new laws introduced in about a dozen states since 2006 have significantly slowed foundation spending in the enacting states. And I offer simulations of several policy proposals for making foundations more effective at fighting recessions
Knowing When Not to Fight
Get PDFShould military personnel (“soldiers”) become selective conscientious objectors to an unjust war? This chapter argues, first, that in most cases the fog of war and politics makes it unreasonable to expect soldiers to make fact-intensive judgments about whether the war is just. Second, it argues that even a justwar tribunal, of the sort proposed by Jeff McMahan, will not do the job. It will inevitably lack the legitimacy and fact-finding capacity necessary to reassure soldiers in such a weighty decision. Third, the moral importance of maintaining civilian control of the military means that soldiers should generally obey orders to deploy. Fourth, however, absolute deference to leaders and commanders is morally unacceptable. The chapter defends an intermediate view advanced centuries ago by Cajetan, Suárez, and Vitoria: soldiers must not fight in an unjust war, but only when the injustice is manifest
Modifying Merger Consent Decrees to Improve Merger Enforcement Policy
Get PDFThis article analyzes my short proposal for reviewing and modifying merger consent decrees to permit additional relief if the provisions of the initial consent merger are found to fail to preserve or restore competition in a reasonable period of time after the merger was consummated. My proposal also would involve more frequent reviews of consummated mergers that have been cleared without challenge, particularly those that were close calls. While “Don\u27t Look Back” might be the best anthem for artists, economic decision theory would not support that approach to merger policy.
Predicting the impact of proposed mergers and remedies on consumers is difficult. As a result, remedies sometimes turn out to be insufficient to protect consumers and competition. This review and modification process would help to correct insufficient, poorly designed, or otherwise ineffective consent decrees. It will place more of the risk of failure on the merging parties who claim to the agency that the merger would not harm competition and that the remedy is sufficient to cure the agency\u27s concerns. As a result, the merging firms likely would be incentivized to provide more efficient and effective remedies at the HSR stage, rather than bear the risk of less efficient remedies, disgorgement and other relief later. This allocation of risk to the merged firm also would help to deter the post-merger exercise of market power achieved or enhanced by the merger. For the same reasons, it also would increase the deterrence of anticompetitive mergers. Finally, it also could reduce the moral hazard of overreaching argumentation by the merging parties and their attorneys
Neglected Dimensions of Global Security: The Global Health Risk Framework Commission
Get PDFThe world has experienced global health crises ranging from novel influenzas (H5N1 and H1N1) and coronaviruses (SARS and MERS) to the Ebola and Zika viruses. In each case, governments and international organizations seemed unable to react quickly and decisively. Health crises have unmasked critical vulnerabilities— weak health systems, failures of leadership, and political overreaction and underreaction. The Global Health Risk Framework Commission, for which the National Academy of Medicine served as the secretariat, recently set out a comprehensive strategy to safeguard human and economic security from pandemic threats
Quasi-Public Spending
Get PDFThe United States has increasingly designed certain public spending programs not as traditional tax-financed programs, but rather as mixtures of private expenditures, subsidies, and limited taxes. Thus part of what could have gone to the government as a tax is instead used to purchase the good or service directly, with only incremental taxes and subsidies to manage distributional goals. This Article terms this “quasi-public spending,” and argues that it is descriptive of our evolving approaches to both health care and higher education. Based on this observation, the Article defines and analyzes quasipublic spending and compares it to both traditional public spending and tax expenditures. The Article finds that in some situations, quasi-public spending may be a worthwhile approach to financing public programs, though with some qualifications. Based on this analysis, the Article puts forward a framework for when policymakers should use quasi-public spending and applies that theory to a number of policy questions
You\u27re Gonna Need a Bigger Boat: Alternatives to the UN Security Council for Enforcing Nuclear Disarmament and Human Rights
Get PDFThere is a serious problem with the Security Council. That institution endowed by the United Nations Charter with primary responsibility for the maintenance of international peace and security -- has stood at the apex of the global political, diplomatic, and legal structure for seventy years, responding (more or less) to the full panoply of incessant dangers and provocations. The Charter could not have been crafted or sustained without it, and the Security Council has, at least, assisted in preserving a measure of fundamental world order-in particular, it has helped avoid the cataclysm of a World War III.
But a central feature of the organization-the veto power wielded by the five permanent members (P5), China, France, Russia, the United Kingdom, and the United States-has become critically dysfunctional. It has too often frustrated the will of the international community, holding essential enforcement actions hostage to the implacable will of a single outlier state.
In two areas in particular-one newly emerging on the international scene, the other even more futuristic-the world needs a viable alternative to the Security Council. A mechanism must be found to counteract the Security Council\u27s over-deterrent effect on authorizing the use of military force and to empower a concerted, lawful response to these two most severe challenges to global aspirations without continuing to cede a dispositive nyet power to each of the P5
Syria: The Name of our Shame
Get PDFFrom withdrawing US troops from Iraq to waging a war on ISIS in Iraq, Obama has deftly recast the meaning of US intervention in the region from unjustifiable imperialist occupation (of Iraq by conservatives) to justifiable global policing of terror (the liberal answer to occupation). The former is a form of irrational, inefficient, unnecessary, and morally indefensible intervention, whereas the latter is a form of rational, efficient, necessary and virtuous one. In this essay, I argue that that the withdrawal/re-intervention of the US supra state in the imperial place staged by Obama, cheered for and rationalized by liberals, is similar to and repeats the logic of withdrawal/re-intervention of the state in the marketplace according to neoliberal blueprint. The (supra) state withdraws from the imperial hegemony (the economy) only to re-intervene in the form of the “war on terror” (sanctioning property and contract). What is released by withdrawal in both cases is “self help”: “national sovereignty” in the case of the international and “individual sovereignty” or “the invisible hand” in the case of the economy, and what is policed in both instances are those who violate the respective “sovereignties”. In both “economies” those who “have” acquire a posture of “objectivity and neutrality” –voyeurism- towards the miseries of the “have nots” who seem to them, albeit “free”, victims of their own culture. A glaring distributive consequence of the neo liberalization of imperial hegemony is that US planes fly over a town in Syria in which Assad is committing a massacre against his people, aided by Iranian troops on the ground and Russian air force in the sky, and bomb the town next door occupied by ISIS. Assad’s massacre is a local cultural affair, the stuff of “self-help”, whereas ISIS is an international criminal requiring global policing response.
While the distributive consequences of neoliberal state withdrawal/re-intervention in the case of the economy has been the bread and butter of leftist writing for more than two decades now (the inequality effect), no such critique seems to be forthcoming in the case of the neo liberal shift in the imperial place (the genocide effect). In this essay, I argue that no leftist critique is forthcoming because the left, divided as it is between three intersecting camps: the economistic left, the identitarian left and the anti imperialist left, is not only bereft of the tools required to critique such a shift, but has in fact developed positions that end up placing them in the same position as the neo liberal imperialists
Toward a Common Secure Future: Four Global Commissions in the Wake of Ebola
Get PDFThe world is becoming increasingly vulnerable to pandemics resulting from globalization, urbanization, intense human/animal interchange, and climate change. A series of global health crises have emerged since 2000, ranging from Severe Acute Respiratory Syndrome (SARS) and its phylogenetic cousin Middle East Respiratory Syndrome (MERS), to pandemic Influenza A (H1N1), Ebola, and the ongoing Zika virus epidemic. The Ebola epidemic gave rise to four global commissions proposing a bold new agenda for global health preparedness and response for future infectious disease threats.
Four global commissions reviewing the recent Ebola virus disease epidemic response consistently recommended strengthening national health systems, consolidating and strengthening World Health Organization (WHO) emergency and outbreak response activities, and enhancing research and development.
System-wide accountability is vital to effectively prevent, detect, and respond to future global health emergencies.
Global leaders (e.g., United Nations, World Health Assembly, G7, and G20) should maintain continuous oversight of global health preparedness, and ensure effective implementation of the Ebola commissions’ key recommendations, including sustainable and scalable financing
Habeas as Forum Allocation: A New Synthesis
Get PDFThe scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower federal courts via habeas. The situation between 1916 and 1953 was murkier. This Essay shows that this was a transitional period marked by disagreement among the Justices as to the appropriate federal forum to review state court decisions resulting in custody. At the beginning of this period, a majority of Justices continued to insist that the responsibility rested with Supreme Court. Towards the end of this period, the Court shifted this responsibility to the habeas courts as a majority of Justices came to recognize that the Court could no longer hope to monitor state court criminal convictions. The Justices during this period agreed that federal review of state court convictions was necessary but disagreed about which federal court should provide such review. The scope of habeas jurisdiction during this period, as before and after, reflected the Justices’ views about the proper allocation of jurisdiction among federal courts to review the state courts’ decision of constitutional questions arising in criminal cases resulting in custody
Four Problems with the Draft Restatement’s Treatment of Treaty Self-Execution
Get PDFThe American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft of the Fourth Restatement of Foreign Relations Law represents an advance from the treatment of the subject in the Third Restatement (Third). At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The self-executing label encompasses four distinct types of reasons why a treaty might require implementing legislation. Second, the draft should abandon the claim that the self-executing or non-self-executing nature of a treaty is “essentially” about the treaty’s judicial enforceability. Third, the draft should qualify its claim that self-execution turns on the intent of the U.S. treaty makers. Finally, the draft should modify its claim that there is no presumption either in favor or against self-execution. There is substantial support in case law for a presumption in favor of self-execution with respect to one of the four categories of self-execution— the “intent-based” category