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Uncharitable Think Tanks
No full textAs people debate whether the Heritage Foundation’s Project 2025 is good policy, what’s being overlooked is that it’s likely unlawful as the work product of a charitable think tank. (Think tanks nearly always are qualified as charities under the tax code.) To reinforce think tanks’ educational mission, tax law sets rigorous content requirements for their materials. It also bans them from campaigning, sharply limits their lobbying, and prohibits their benefiting private parties. The doctrines are intended to keep think tanks charity-worthy educators, but they have not succeeded.
Ironically, the failure reflects other features of tax law that incentivize using think tanks as politicized advocates. Tax law offers donors anonymity and offsets the cost of donations through the charitable deduction. And because think tanks are government-approved educators, their messaging enjoys enhanced credibility, hence often greater influence. No other advertising, lobbying, campaigning vehicle, or even other nonprofit form, confers this set of advantages.
Part I lays out the paradigm of charitable education that is intended to govern think tanks’ affairs. To provide a contrast with the modern ones, it presents a portrait of old school think tanks—described as “universities without students.” Next it explores the historic difficulty of finding legal rules to define charitable education for public-facing speakers like think tanks.
The factual core of the Article, Part II, describes think tanks that publish climate denial and obstruct climate-friendly laws. It is the first account of such think tanks in legal scholarship—a void that’s surprising because the phenomenon is ongoing since the 1990s. The facts reveal the need to reform think tanks’ status in tax exempt law. They also tell a story of importance in itself—how government subsidized, formally charitable actors have thwarted understanding of climate change and stymied positive law reforms. The facts provide a foundation for future research in climate law, lobbying and campaign finance, and political theory and sociology.
In another scholarly first, Part III applies each of the four core doctrines for charities to think tanks. In addition to flouting the content standards for charitable education, it finds think tanks persistently benefit private persons, engage in banned campaigning, and lobby beyond their limits. This conduct all violates the legal standards for charitable educators. Accordingly, Part IV proposes that the IRS should recognize modern think tanks as § 501(c)(4) nonprofits, not charities. As § 501(c)(4)s, they could be bold advocates without violating the law. The educational speech, private benefits, lobbying, and even most campaigning limits would fallaway. No longer government-endorsed educators, they would have to earn their influence. Nor would donors receive tax deductions for gifts. Section501(c)(4)s think tanks would still provide donors anonymity, but at least politically active § 501(c)(4)s are receiving scrutiny from law reformers. The use of charitable think tanks as conduits for dark money, in contrast, has remained invisible until now
Fifty Years of Protecting the Surviving Spouse: The Origin and Evolution of Florida\u27s Elective Share
No full textCurrently, Florida’s elective share framework calculates the amount a surviving spouse is entitled to based on a decedent’s “elective estate.” Although this “elective estate” represents a significant improvement from previous law, where a decedent was free to completely disinherit a surviving spouse, issues still loom regarding the fairness of the framework. Granting a surviving spouse a fixed share of 30 percent of the decedent’s “elective estate” regardless of the length of the marriage can lead to inequitable outcomes. For instance, a surviving spouse who was married to the decedent for any period of time, one month even, can elect to take a share against all other heirs or beneficiaries of the decedent’s will, despite the decedent’s testamentary intent. In the past, Florida has lagged behind the Uniform Probate Code and other states in implementing changes to the elective share framework. However, by establishing an approximation system, that is, an elective share percentage that increases with marriage length, Florida’s elective share can more closely mirror the divorce law concept of equitable distribution and other areas of Florida’s public policy
Defending Form Contract Consent
No full textThe issue of standard form contracts has bedeviled Contracts scholars for a century. The basic problem has long been known. Contract is supposed to be a quintessentially consensual activity, whereby both parties are operating with full knowledge and comprehension of the array of terms and conditions being negotiated and agreed to. But by employing standard forms replete with boilerplate fine print, companies have created a regime whereby it is most likely irrational for consumers to bother reading the terms before consenting to the transaction. The existing “duty to read” doctrine is that consumers fully consent to all terms when they sign or click. The scholarly objection is that such consent is fully or at least partially invalid because of the lack of an idyllic notion of full knowledge seen as prerequisite for valid consent. This article resists this conclusion, and posits that consumer consent to form contracts is pragmatically and realistically sufficient for contractual enforcement purposes. The consumer makes a reasonable choice given the circumstances (including by choosing not to read while also choosing to sign), and thus autonomy concerns are satisfied. A similar conclusion has been reached in the medical informed context where the stakes are arguably higher than consumer contracts. Contract law, in the form of contracts under seal, was long familiar with the concept of ironclad enforcement of terms which were not read or understood by illiterate persons, and this notion may have persisted in the minds of the early judges first adopting the duty to read in the form contract context. Finally, emerging empirical evidence of consumer attitudes reveals that they have embraced the legal concept of their full consent to all terms in boilerplate upon their signature (or click). Therefore, although there may still be need for potential policing of problematic or unfair terms in boilerplate contracts, attacking consent is likely not a profitable or coherent tool for this purpose. Resort to other tools, such as statutory regulation, are more sensible. Consent to form contracts is sufficient
DEI and Antisemitism: Bred in the Bone
Full text linkThe article explains why no one should have been surprised by the antisemitism that exploded on college campuses after October 7, 2023. The article demonstrates that the worldview espoused by the DEI (diversity, equity, and inclusion) movement -- and its cousins, antiracism and wokeness -- is inherently and inevitably antisemitic. The antisemitism bred in the bone of DEI was bound to come to the surface eventually, and it did
How Much Antisemitism Is There in the United States? Incidences vs. Impacts
Full text linkThe Anti-Defamation League (ADL) (www.adl.org), founded in 1913, is one of the nation\u27s premier civil rights organizations and was formed to stop the defamation of the Jewish people and to secure justice and fair treatment to all. Every year since 1979, the ADL has published an Audit of Antisemitic Incidents in the US (https://www.adl.org/resources/report/audit-antisemitic-incidents-2023). The Audit receives significant publicity and is important in communicating the problem of serious antisemitic incidents and the year-to-year increases in such incidents. But, based on surveys of American Jews, the Audit underestimates the extent to which American Jews are being impacted by antisemitism. Survey data suggest that tens of thousands of incidents occur each year that do not get reported to ADL and that these incidents directly impact almost one million American Jews annually. This research suggests that reporting the number of antisemitic incidents should be prominently accompanied by a report of the percentage and number of American Jews who report personally experienced antisemitism in the past year. Such a strategy would doubtlessly improve communication regarding the extent of the problem. This paper examines the level of antisemitism in the US by examining the development of Jewish organizations to combat antisemitism and data from the ADL, as well as data from surveys, particularly from local Jewish community studies, the Pew Research Center, and the American Jewish Committee. Since October 7, more detailed surveys of the impact of antisemitism have been completed, including one by the author of this paper (https://combatantisemitism.org/press-release/3-5-million-american-jews-have-experienced-antisemitism-since-october-7-new-survey-reveals/). Asking questions in a much more detailed manner than had been the case in earlier surveys showed that, by one year after October 7, 2023, 3.5 million American Jews had personally experienced antisemitism. (This should not be viewed as an increase from the one million referenced below, but as a result of more extensive questioning.
Cracking the Quotas: The 1948 New York Fair Educational Practices Act and the Jewish Quest for Color-Blindness
Full text linkThis article explores how vigorously Jews pushed to enact the 1948 New York Fair Educational Practices Act to fight anti-Jewish quotas in higher education. The Act was the first state-level legislation to prohibit higher educational institutions from excluding, limiting or otherwise discriminating against persons seeking admission as students because of race, religion, creed, color, or national origin. Seeking a way to overcome discrimination in university admissions, Jews sought to combat it by promoting racially and religiously neutral admission procedures within the broad context of the expansion of opportunities in higher education after World War II instead of directly attacking antisemitism. The Jewish ideal of color-blindness, as realized in the enactment of states\u27 fair educational practices laws helped not only Jews but also other minorities