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89 Tul. L. Rev. 869 (2014-2015)

handle is hein.journals/tulr89 and id is 927 raw text is: Strengthening Charity Law: Replacing Media Oversight with Advance Rulings for Nonprofit Fiduciaries Linda Sugin* This Article considers the urgent challenges facing the chantable community and its state regulators. too little fiduciary duty law for nonprofits, the nse of media enforcement of wrongdoing in chanties, and an inherent tension in the statefs dual role as enforcer and protector of the nonprofit sector It analyzes whether the scarcity oflaw is realy a problem by comparing nonproit organizations with business organizations and concludes that charities lack the self- enforcement mechanisms of businesses and therefore need more government guidance. It evaluates whether the media has made governmental supervision obsolete and expresses skepticism about the press displacing state oversight The solution presentet an advance-ruling procedure for fiduciary duty questions, proposes that states shifi their focus from better enforcement against wrongdoers ex post to better charity governance ex ante by devoting more attention and resources to assisting well-meaning charity directors in carying out their fiduciary obligations. I. INTRODUCTION ............................................................................. 870 II. WHERE IS THE LAW IN NONPROFIT GOVERNANCE? .................... 874 A. What Is ChaiiiyLaw? ........................................................ 874 B. LegalEnforcement ofFiduciary Duties Is Minima ........ 876 C Can Business LawFill the Gap in Chanties Fiduciary Law ? ................................................................... 880 III. MEDIA OVERSIGHT OF CHARITIES GOVERNANCE ....................... 884 A. Media Enforcement Is Robust Because Reputation Matters to Nonprofit Leaders ............................................ 884 B. The GoodandBadofMeda Enforcement ...................... 888 IV A PROPOSAL FOR ADVANCE RULINGS ......................................... 898 V C ONCLUSION ................................................................................ 905 * © 2015 Linda Sugin. Professor of Law, Fordham Law School. A prior version of this Article was presented at the Columbia Law School Charities Regulation and Oversight Project Conference, The Future of State Charities Regulation and Enforcement. Many thanks to participants there and participants in the Fordham Law School faculty workshop series for helpful comments. Particular thanks to Talia Metson for excellent research assistance and to Sarah Jaramillo, Fordham Law librarian.

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