Paul B. Miller and Matthew Harding
Paul B. Miller, Political (Dis)Trust and Fiduciary Government, in Fiduciaries and Trust 223 (Paul B. Miller & Matthew Harding eds., 2020)
This book explores the interactions of fiduciary law and trust, drawing on insights into personal and political trust from various disciplines. It explores the full scope of extension claimed for the fiduciary principle, from its heartland in private law, to its frontiers in public law and government more broadly.
O. Carter Snead
A leading expert on public bioethics advocates for a new conception of human identity in American law and policy.
The natural limits of the human body make us vulnerable and therefore dependent, throughout our lives, on others. Yet American law and policy disregard these stubborn facts, with statutes and judicial decisions that presume people to be autonomous, defined by their capacity to choose. As legal scholar O. Carter Snead points out, this individualistic ideology captures important truths about human freedom, but it also means that we have no obligations to each other unless we actively, voluntarily embrace them. Under such circumstances, the neediest must rely on charitable care. When it is not forthcoming, law and policy cannot adequately respond.
What It Means to Be Human makes the case for a new paradigm, one that better represents the gifts and challenges of being human. Inspired by the insights of Alasdair MacIntyre and Charles Taylor, Snead proposes a vision of human identity and flourishing that supports those who are profoundly vulnerable and dependent―children, the disabled, and the elderly. To show how such a vision would affect law and policy, he addresses three complex issues in bioethics: abortion, assisted reproductive technology, and end-of-life decisions. Avoiding typical dichotomies of conservative-versus-liberal and secular-versus-religious, Snead recasts debates over these issues and situates them within his framework of embodiment and dependence. He concludes that, if the law is built on premises that reflect the fully lived reality of life, it will provide support for the vulnerable, including the unborn, mothers, families, and those nearing the end of their lives. In this way, he argues, policy can ensure that people have the care they need in order to thrive.
In this provocative and consequential book, Snead rethinks how the law represents human experiences so that it might govern more wisely, justly, and humanely.
Gerard V. Bradley
Gerard V. Bradley and E. Christian Brugger eds.Catholic social teaching (CST) refers to the corpus of authoritative ecclesiastical teaching, usually in the form of papal encyclicals, on social matters, beginning with Pope Leo XIII's Rerum Novarum (1891) and running through Pope Francis. CST is not a social science and its texts are not pragmatic primers for social activists. It is a normative exercise of Church teaching, a kind of comprehensive applied - although far from systematic - social moral theology. This volume is a scholarly engagement with this 130-year-old documentary tradition. Its twenty-three essays aim to provide a constructive, historically sophisticated, critical exegesis of all the major (and some of the minor) documents of CST. The volume's appeal is not limited to Catholics, or even just to those who embrace, or who are seriously interested in, Christianity. Its appeal is to any scholar interested in the history or content of modern CST.
Gerard V. Bradley
Before the Second Vatican Council, America’s Catholics operated largely as a coherent voting bloc, usually in connection with the Democratic Party. Their episcopal leaders generally spoke for Catholics in political matters; at least, where America’s bishops asserted themselves in public affairs there was little audible dissent from the faithful.
More than occasionally, the immigrant Church’s eagerness to demonstrate its patriotic bona fides furthered its tendency to speak with one voice about national matters, and in line with the broader societal consensus. And, notwithstanding the considerable conflict which Catholics encountered, and generated, in American political life, there was before the Council broad agreement in American culture about the centrality of Biblical morality to the success of Americans’ experiment with republican government.
In other words: before the Council, American Catholics’ relationship to the political common good was mediated, somewhat uncritical, and insulated from conflict (both within and without the Church) over such fundamental matters as protection of innocent life, marriage and family life, and (to a lesser extent) religious liberty.
This has all changed since the mid-1960s. For the first time in the Church’s pilgrimage on these shores, controversial questions about the basic moral requirements of the political common good are front and center for America’s Catholics. These questions require Catholics to confront matters which heretofore they either took for granted, read off from the background culture, or which they left to the bishops to handle. But the Council Fathers rightly recognized that Jesus calls upon a formed and informed laity to act as leaven in the public realm, to bring Gospel values to the temporal sphere. In this book of essays touching upon Catholic social doctrine, the truth about human equality and political liberty, and religious faith as it bears upon public life and the public engagement of lay Catholics, Gerard Bradley supplies indispensable aid to those seeking to answer Jesus’ call.
Samuel L. Bray
Samuel Bray, Equity in Equity and Law: Fusion and Fission 31(John C.P. Goldberg, Henry E. Smith & P.G. Turner, ed., 2019)
The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity - their fission - was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world.
Margaret Brinig, editor The International Society of Family Law is an independent, international, and non-political scholarly association dedicated to the study, research and discussion of family law and related disciplines. The Society’s membership currently includes professors, lecturers, scholars, teachers, and researchers from more than 50 different countries, offering a unique opportunity for networking within a truly international family law community.
The International Survey of Family Law is the annual review of the International Society of Family Law. It brings together reliable and clearly structured insights into the latest and most notable developments in family law from all around the globe.
Margaret F. Brinig
Margaret F. Brinig, Child Support, in Routledge Handbook of International Family Law 144 (Barbara Stark & Jacqueline Heaton eds., 2019)
Globalisation, and the vast migrations of capital and labour that have accompanied it in recent decades, has transformed family law in once unimaginable ways. Families have been torn apart and new families have been created. Borders have become more porous, allowing adoptees and mail order brides to join new families and women fleeing domestic violence to escape from old ones. People of different nationalities marry, have children, and divorce, not necessarily in that order. They file suits in their respective home states or third states, demanding support, custody, and property. Otherwise law-abiding parents risk jail in desperate efforts to abduct their own children from foreign ex-spouses.
The aim of this Handbook is to provide scholars, postgraduate students, judges, and practioners with a broad but authoritative review of current research in the area of International Family Law. The contributors reflect on a range of jurisdictions and legal traditions and their approaches vary. Each chapter has a distinct subject matter and was written by an author who was invited because of his or her expertise on that subject. This volume provides a valuable contribution to emerging understandings of the subject.
Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff
Book Chapters by Notre Dame Law School Faculty
Paul B. Miller et al., Introduction, in The Oxford Handbook of Fiduciary Law xviii (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019).
Daniel B. Kelly, Fiduciary Principles in Fact-Based Fiduciary Relationships, in The Oxford Handbook of Fiduciary Law 2 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019).
Julian Velasco, Fiduciary Principles in Corporate Law, in The Oxford Handbook of Fiduciary Law 61 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019).
Lloyd Hitoshi Mayer, Fiduciary Principles in Charities and Other Nonprofits, in The Oxford Handbook of Fiduciary Law 102 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019).
Paul B. Miller, The Identification of Fiduciary Relationships, in The Oxford Handbook of Fiduciary Law 366 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019).
Samuel L. Bray, Fiduciary Remedies, in The Oxford Handbook of Fiduciary Law 449 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019).
Paul B. Miller, New Frontiers in Private Fiduciary Law, in The Oxford Handbook of Fiduciary Law 891 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019).
The Oxford Handbook of Fiduciary Law provides a comprehensive overview of critical topics in fiduciary law and theory through chapters authored by leading scholars. Chapters in the Handbook explore the defining features of fiduciary relationships, clarify the distinctive fiduciary duties that arise in these relationships, and identify the remedies available for breach of fiduciary duties. The volume lays the groundwork for future research on fiduciary law and theory by highlighting cross-cutting themes, identifying persistent theoretical and practical challenges, and exploring how the field could be enriched through empirical analysis and interdisciplinary insights from economics, philosophy, and psychology.
Barry Cushman, The Place of Economic Crisis in American Constitutional Law: The Great Depression as a Case Study, in Constitutions in Times of Financial Crisis 95 ( Tom Ginsburg, Mark D. Rosen, Georg Vanberg, eds. 2019).
The American constitutional law of political economy underwent significant transformations in the years between the Wall Street Crash of 1929 and the Allied victory in World War II. Both state and federal power to regulate economic activity were enhanced substantially. The reasons for these developments have been explored at length in a voluminous literature. This chapter considers the role that conditions of economic crisis might have played in cases involving judicial review of economic regulation.
Judith Fox and Linda E. Fisher
The Foreclosure Echo tells the story of the ordinary people whose quest for the American dream was crushed in the foreclosure crisis when they were threatened with losing their homes. The authors, Linda E. Fisher and Judith Fox - each with decades of experience defending low-to-moderate-income people from foreclosure and predatory lending practices - have employed a range of legal, economic, and social-science research to document these stories, showing not only how people experienced the crisis, but also how lenders and public institutions failed to protect them. The book also describes the ongoing effects of the crisis - including vacant land and abandoned buildings - and how these conditions have exacerbated the economic plight of millions of people who lost their homes and have increased inequality across the country. This book should be read by anyone who wants to understand the fallout of the last financial crisis and learn what we can do now to avoid another one.
Richard W. Garnett
Richard W. Garnett, Freedom 'for' Religion: (Yet) Another View of the Cathedral, in Religious Freedom and the Law: Emerging Contexts for Freedom for and Freedom From Religion 15 (Brett G. Scharffs, Asher Maoz, & Ashley Isaacson Woolley eds., 2019)
This volume presents a timely analysis of some of the current controversies relating to freedom for religion and freedom from religion that have dominated headlines worldwide. The collection trains the lens closely on select issues and contexts to provide detailed snapshots of the ways in which freedom for and from religion are conceptualized, protected, neglected, and negotiated in diverse situations and locations. A broad range of issues including migration, education, the public space, prisons and healthcare are discussed drawing examples from Europe, the US, Asia, Africa and South America. Including contributions from leading experts in the field, the book will be essential reading for researchers and policy-makers interested in Law and Religion.
Bruce R. Huber
Bruce Huber, The U.S. Public Lands as Commons, in Routledge Handbook of the Study of the Commons 135 (Blake Hudson, Jonathan Rosenbloom & Dan Cole eds., 2019)
This comprehensive Handbook serves as a unique synthesis and resource for understanding how analytical frameworks developed within the literature assist in understanding the nature and management of commons resources. Such frameworks include those related to Institutional Analysis and Development, Social-Ecological Systems, and Polycentricity, among others. The book aggregates and analyses these frameworks to lay a foundation for exploring how they apply according to scholars across a wide range of disciplines. It includes an exploration of the unique problems arising in different disciplines of commons study, including natural resources (forests, oceans, water, energy, ecosystems, etc), economics, law, governance, the humanities, and intellectual property. It shows how the analytical frameworks discussed early in the book facilitate interdisciplinarity within commons scholarship. This interdisciplinary approach within the context of analytical frameworks helps facilitate a more complete understanding of the similarities and differences faced by commons resource users and managers, the usefulness of the commons lens as an analytical tool for studying resource management problems, and the best mechanisms by which to formulate policies aimed at addressing such problems.
James J. Kelly Jr.
James J. Kelly Jr., Controlling, Acquiring, and Disposing of Vacant Properties, in Problem Properties: A Guide to Legal Strategies and Remedies 199 (Alan Mallach, Jessica Bacher, & Meg Byerly Williams, eds., 2019).
No survey of urban neighborhood vacant property solutions can be complete without consideration of the approaches that involve wresting control of derelict properties away from their delinquent owners. Some of these methods can abate nuisances and return properties to productive use without permanently displacing the owners, but, frequently, no long-term resolution can be reached without the local government taking ownership and transferring title to persons ready, willing, and able to rehabilitate the property. Part II of this chapter will examine the structural and legal challenges that municipalities with many vacant properties face in disposing of vacant houses and lots that they have acquired from their delinquent former owners. It will show how land banking reforms have mitigated the problems presented by conventional approaches to the sale of publicly owned real property. Part I of the chapter will look at the various ways municipalities first take control of vacant properties that cannot be remedied through traditional code enforcement means. It begins with an overview of three situations where seizing control is the only effective way of abating the nuisance and reclaiming the property.
Three types of vacant property situations present such intractable resistance to conventional code enforcement responses as to require more aggressive action by local authorities. First, some vacant properties could be rehabbed and returned to productive use but for the fact that their owners are unwilling and/or unable to execute the needed repairs. Second, some vacant properties are so burdened by competing ownership claims, mortgages, and/or other liens as to make further secured investment in them impossible. Third, many vacant houses are located in communities where the prices for habitable houses are not sufficiently high to justify the investment of capital needed to restore the derelict ones. In situations of the first type, in particular, short-term interventions focused on completion of essential repairs would, at first glance, appear to be sufficient. But, as the various solutions are explored, the need to transfer title to the property to a new owner will become more apparent. This chapter will focus on the legal mechanics of, and limits on, the various processes by which local authorities can gain control over nuisance vacant properties.
Mary Ellen O'Connell
International law evolved to end and prevent armed conflict as much as for any other reason. Yet, the law against war appears weaker today than ever in its long history, evidenced by raging armed conflicts in which people are killed, injured, and forcibly displaced. The environment is devastated, and the planet impoverished. These consequences can be traced to the dominant ideology of realism. In 1946, Hersch Lauterpacht challenged that ideology by contrasting it with the idea of international law, composed of natural law, positive law, and process theory. The Art of Law in the International Community revives his vision, rebuilding the understanding of why international law binds, what its norms require, and how courts are the ideal substitutes for war. The secret to the renewal of international law lies in revitalizing the moral foundation of natural law through drawing on aesthetic philosophy and the arts.
Mary Ellen O'Connell, Christian J. Tams, and Dire Tladi
In this book, self-defence against non-state actors is examined by three scholars whose geographical, professional, theoretical, and methodological backgrounds and outlooks differ greatly. Their trialogue is framed by an introduction and a conclusion by the series editors. The novel scholarly format accommodates the pluralism and value changes of the current era, a shifting world order and the rise in nationalism and populism. It brings to light the cultural, professional and political pluralism which characterises international legal scholarship and exploits this pluralism as a heuristic device. This multiperspectivism exposes how political factors and intellectual styles influence the scholarly approaches and legal answers and the trialogical structure encourages its participants to decentre their perspectives. By explicitly focussing on the authors' divergence and disagreement, a richer understanding of self-defence against non-state actors is achieved, and the legal challenges and possible ways ahead identified.
Avishalom Tor and Klaus Mathis
Editors: Klaus Mathis & Avishalom Tor
From the Publisher
his book further develops both the traditional and the behavioural approach to competition law, and applies these approaches to a variety of timely issues. It discusses several fundamental questions regarding competition law and economics, and explores the applications of competition law and economics. In turn, the book analyses the interplay of intellectual property rights and patents in various aspects of competition law, and investigates the impacts that developments in information technology, such as big data analytics, have on competition law.
The book also discusses the impact of energy law reforms on energy markets from a competition law perspective. Competition law is a classic field of economic analysis. This is largely due to the fact that competition law uses terms such as market, price, and competition and must therefore rely on economic know-how and analyses. In the United States, economic analysis has greatly influenced not just the scholarship on antitrust law, but also judicial decisions and agency enforcement. Antitrust law and economics are based on the traditional paradigm of neoclassical economics, which relies on the assumption that the market players, i.e. consumers and producers, are rational. This approach to competition law was later received in Europe under the banner of a “more economic approach”.
For the past two decades, behavioural law and economics, which seeks to generate better insights into legal phenomena by providing more realistic psychological foundations for economic models, and to offer a multitude of applications in legislation and legal adjudication, has challenged the traditional economic approach to law in general and, more recently, to competition law specifically.
Stephen E. Arthur and Kenneth F. Ripple
Co-editors: Honorable Kenneth F. Ripple and Laura A. Kaster
Summary of Contents:
- Organization of the Court
- Expedited Appeals, Emergency Appeals, and Temporary Relief Pending Appeal
- Preparing and Filing the Appeal
- Record on Appeal
- Direct Criminal Appeals
- Habeas Corpus: Conflicts Between State and Federal Courts
- In Forma Pauperis Appeals; Appointed Counsel
- Judicial Review of Administrative Decisions
- Motion Practice
- Standards of Review
- The Brief
- Scheduling Oral Argument; Submission Without Oral Argument
- Presenting Oral Argument
- Proceedings After the Argument
- Damages, Double Costs, and Fees
Margaret Brinig, editor The International Survey of Family Law is the annual review of the International Society of Family Law. It brings together reliable and clearly structured insights into the latest and most notable developments in family law from all around the globe. Chapters are prepared by an international team of selected experts in the field, usually covering 20 or more jurisdictions in each edition.
The 2018 edition addresses highly topical matters ranging from assisted reproductive technology and sterilisation to end-of-life issues and estate settlement. The authors explore legislative changes, common law developments and challenges of integrating customary law or multiple religious legal systems into pluralistic societies. It brings together established and highly regarded academics and judges, as well as emerging scholars.
Margaret F. Brinig, Religious Parents Who Divorce, in The Contested Place of Religion in Family Law 234 (Robin Fretwell Wilson ed., 2018)
Even though adherence to organized religion is becoming less common for Americans,religion remains important for many in the United States. This chapter sets out to show some of the effects of religion on a particular group of vulnerable Americans – those going through the divorce process, as they self-identify, not through surveys but through divorce pleadings and parenting agreements.While some will rely more on faith during such difficult times, whatever stigma around divorce remains for divorcing parents may cause others to withdraw from church affiliation, particularly when they seek to remarry. Other work has shown that when both spouses are similarly religious, they are less likely to divorce Of course, some couples quarrel about religion during their marriages, and differences either in religiosity or religious preference may add to the discord in the marriage that eventually culminates in divorce. A prior study based upon data from Iowa showed that when religious couples did divorce, they tended to, more than others, indicate fault-based reasons for the divorce, even when a fault basis could not be used to any legal advantage, and to litigate rather than settle divorce-related issues.
This chapter draws upon divorce pleadings and other records to show how indications of religion, or disaffiliation, that appear in parenting agreements and orders affect the course of the divorce proceedings and any legal activities over the five years following the divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child, at least in theory, the child’s independent religious needs were never mentioned in the files analyzed for this chapter. Instead the parents’ religious practices and affiliation drove the court’s understanding of what the couple could achieve for their children following dissolution. The data is consistent with more religious parents trying to make the best of what they understand is not ideal for their children.
Barry Cushman, Federalism, in The Cambridge Companion to the United States Constitution 185 (Karen Orren & John W. Compton eds., 2018)
American constitutional federalism emerged from a complex matrix comprised by multiple intellectual, institutional, and experiential sources: from political theorists ranging from Machiavelli to Montesquieu and from Harrington to Hume; from colonial analogies to other dominions connected to the English realm through a common monarch, such as Ireland and seventeenth-century Scotland; and from an assortment of colonial customs, practices, and formal and informal institutional arrangements that were varied, fluctuating, contested, and in many respects underspecified. The multiplicity and diversity of these conceptual and historical inputs ensured that the nature and implementation of the federal idea would be matters of continuing political and theoretical debate.
Though the Supreme Court of the United States has played a preeminent role in the liquidation of the federal idea, its contours have been shaped by contributions from multiple centers: by state and federal legislators in decisions whether to initiate or enact legislation; by state and federal executives determining whether to approve or veto legislation with which they were presented; by state and federal judges reviewing legislation for constitutionality or determining which rules of decision to apply in cases coming before them; by statesmen and commentators motivated by combinations of high principle and immediate interest; and by the people by whom such officials were elected to or retired from office. Much of the work of constructing a working federal system has been performed incrementally, as actors in each of the branches of government, and judges most particularly, have sought in the context of particular cases or issues to find solutions to the practical problems arising from the coexistence of two semiautonomous levels of government within a single territory. Though the subjects addressed by this accumulative process have varied from generation to generation, many of the themes and tensions have proven remarkably durable. Still, the fallout from two exogenous shocks to the federal system has fundamentally reoriented the trajectory of American constitutional federalism. The first was the Civil War and the Reconstruction that followed; the second was the Great Depression and the resulting New Deal, which in the domain of political economy transformed American federalism from a regime constituted by a set of judicially enforced rules into a system constituted by a collection of political values entrusted to the democratic process.
Jimmy Gurule and Sabina Danek
Jimmy Gurulé & Sabina Danek, The Failure to Prosecute ISIS’s Foreign Financiers Under the Material Support Statute, in The Palgrave Handbook of Criminal and Terrorism Financing Law 995 (Colin King, Clive Walker & Jimmy Gurulé eds., 2018)
The Palgrave Handbook of Criminal and Terrorism Financing Law focuses on how criminal and terrorist assets pose significant and unrelenting threats to the integrity, security, and stability of contemporary societies. In response to the funds generated by or for organised crime and transnational terrorism, strategies have been elaborated at national, regional, and international levels for laws, organisations and procedures, and economic systems. Reflecting on these strands, this handbook brings together leading experts from different jurisdictions across Europe, America, Asia, and Africa and from different disciplines, including law, criminology, political science, international studies, and business. The authors examine the institutional and legal responses, set within the context of both policy and practice, with a view to critiquing these actions on the grounds of effective delivery and compliance with legality and rights. In addition, the book draws upon the experiences of the many senior practitioners and policy-makers who participated in the research project which was funded by a major Arts and Humanities Research Council grant. This comprehensive collection is a must-read for academics and practitioners alike with an interest in money laundering, terrorism financing, security, and international relations.
Matthew E.K. Hall
The most sophisticated theories of judicial behavior depict judges as rational actors who strategically pursue multiple goals when making decisions. However, these accounts tend to disregard the possibility that judges have heterogeneous goal preferences - that is, that different judges want different things. Integrating insights from personality psychology and economics, this book proposes a new theory of judicial behavior in which judges strategically pursue multiple goals, but their personality traits determine the relative importance of those goals. This theory is tested by analyzing the behavior of justices who served on the US Supreme Court between 1946 and 2015. Using recent advances in text-based personality measurement, Hall evaluates the influence of the 'big five' personality traits on the justices' behavior during each stage of the Court's decision-making process. What Justices Want shows that personality traits directly affect the justices' choices and moderate the influence of goal-related situational factors on justices' behavior.
James J. Kelly Jr.
Drafting Organizational Documents teaches clinical law students the indispensable skill of legal drafting by introducing them to the nonprofit and for-profit corporate documents they are most likely to create before graduating. Also appropriate for simulation and other skills courses, this book takes students through the process of identifying key issues, formulating provision options and crafting legal language. With chapters on the foundational documents for nonprofit corporation, limited liability companies, Delaware corporations and benefit corporations, this book enables students to draft documents from scratch in order to critically analyze and adapt forms.
Donald P. Kommers, John Finn, Gary Jacobsohn, George Thomas, and Justin Buckley Dyer
American Constitutional Law, Volume 1: Government Powers and Democracy is a unique casebook that encourages citizens and students of the Constitution to think critically about the fundamental principles and policies of the American constitutional order. In addition to its distinguished authorship, the book has two prominent features that set it apart from other books in the field: an emphasis on the social, political, and moral theory that provides meaning to constitutional law and interpretation, and a comparative perspective that situates the American experience within a world context that serves as in invaluable prism through which to illuminate the special features of our own constitutional order. While the focus of the book is entirely on American constitutional law, the book asks students to consider what, if anything, is unique in American constitutional life and what we share with other constitutional democracies. Each chapter is preceded by an introductory essay that highlights these major themes and also situates the cases in their proper historical and political contexts. This new edition offers updated and expanded treatment of a number of important and timely topics that have been addressed by the Supreme Court in recent years.
Lloyd Histoshi Mayer and Paul B. Miller
Lloyd Hitoshi Mayer, Creating a Tax Space for Social Enterprise, in The Cambridge Handbook of Social Enterprise Law 157 (Benjamin Means & Joseph W. Yockey eds., 2018)
While still relatively few in number compared to traditional nonprofit and for-profit organizations, the rise of social enterprises represents a possible disruption of not only existing models of doing business but also areas of law that in many respects have seen little fundamental change for decades. One such area is domestic tax law, where social enterprises currently find themselves subject to the rules of for-profit activities and entities. Here, both scholars and policymakers are beginning to ask whether it is either necessary or desirable to modify existing tax provisions to better accommodate social enterprise: that is, whether to create a distinct tax space for social enterprise.
This chapter considers some of the initial answers to this question and places them within a larger, tax theory framework in order to advance consideration of this emerging issue.
Paul B. Miller & Andrew S. Gold, Fiduciary Duties in Social Enterprise, in The Cambridge Handbook of Social Enterprise Law 321 (Benjamin Means & Joseph W. Yockey eds., 2018).
This chapter examines theoretical and practical issues relating to fiduciary administration in social enterprise. It argues that social enterprise often calls for fiduciary administration on a hybrid model, combining elements of service-type administration and governance-type administration. Like standard service-type situations, social enterprise calls for administration in the interests of a defined constituency (ordinarily, shareholders). However, hybridity is introduced through the commitment to general public-oriented purposes that distinguish social enterprise from conventional business organizations. We will show that, contrary to common opinion, the fiduciary hybridity found in social enterprise is neither unique nor unworkable. We will briefly discuss other examples of hybrid fiduciary relationships and institutions, and we will explain the value of hybridity and how problems attributed to it are, or may be, resolved.
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