Browsing by Author "Katz, Robert"

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    Indiana's Flawed Religious Freedom Law
    (2015) Katz, Robert; Robert H. McKinney School of Law
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    The Philanthropic Behavior of Nonprofit Hospitals
    (2010-02-02T20:14:17Z) Lyons, Alvin L.; Steinberg, Richard; Wittberg, Patricia, 1947-; Morrison, Wendy; Katz, Robert
    The study of the nonprofit sector has traditionally focused on nonprofit organizations as recipients of charity. A perspective that has been relatively neglected is that of nonprofit organizations as not only recipients but also as donors of charitable resources. This dissertation explores the phenomenon of philanthropic behavior of nonprofit organizations, using studies of the contributions and community health programs of nonprofit hospitals in Indiana as an example. Philanthropic behavior is defined as actions and programs initiated by a nonprofit organization to meet additional community needs – beyond its primary mission or services. It presents the hypothesis that such activities are undertaken for reasons similar to for-profit organizations – and have comparable organizational benefits. The studies reported in the dissertation show a wide variation in reporting such activities as well as of the organizational structures in place to manage such behavior. This variation is seen even in seemingly similar hospitals such as religious hospitals within an identified system. The dissertation discovers that while nonprofit organizations may engage in philanthropic behavior, these practices go largely unrecognized. Because the actions are not systematically noted or recorded, some very significant residual benefits that nonprofits provide for their defined communities are also unrecognized. It also finds that when these activities are evident, they are driven more by the professional values and actions of individual employees than by organizational policies. The dissertation concludes that drawing conclusions from this study of the data on Indiana hospitals – both from state reports and the IRS Form 990s – is difficult. There is an inconsistency between the two databases as well as within each of the datasets that makes any specific conclusions as to the relative values of different hospitals or to standards is suspect. It notes that while the revised Form 990 should help in overall transparency, the reporting of areas such as health education and donations will most probably continue to be inconsistent. This inconsistency makes the information difficult to use as either an evaluation tool or as policy to encourage community-serving behavior.
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    Price Ceiling: The Charitable Status of Fee-Charging Nonprofits
    (Office of the Vice Chancellor for Research, 2014-04-11) Katz, Robert
    Is a fee-charging nonprofit legally “charitable” if it effectively excludes poor people from its services by charging high fees? This paper compares and contrasts how the English and U.S. legal systems answer this question. The question itself draws attention to the difference between what “charity” and “charitable” mean for laypersons as opposed to lawyers versed in the “common law” i.e., the body of judge-made law that originated in England and was adopted by the U.S. and other former British colonies. In ordinary usage, charity means relief of the poor. Under the common law, however, “charity” can describe any nonprofit entity that (inter alia) advances education (e.g., schools), promotes health (e.g., hospitals) or relieves poverty. These purposes are free-standing: a school can be “charitable” without relieving poverty, and a poverty relief agency can be charitable without advancing education. In Anglo-American common law, the fact that a nonprofit hospital, school, etc., charges fees for its services does not automatically make it non-charitable. Yet what is the upper limit of this principle? In the U.S., nonprofit hospitals must provide charity care to the uninsured and underinsured or risk losing their tax-exempt status. In England, expensive nonprofit private schools can be legally “charitable” even if they offer no financial aid, so long as they at least consider the needs of the poor. Why do the English and U.S. legal systems disagree on the charitability of fee-charging nonprofits? The answer, this paper argues, lies in whether a legal system’s definition of “charitable” is singular or multiple. English law uses the same definition of “charitable” for both common law and tax-exempt purposes, while U.S. law does not. As a result, the U.S. legal system has more flexibility to gradate the fiscal and other advantages it confers upon nonprofits to better reflect the amount of public benefit they provide. For example, it can deem a nonprofit hospital a “charity” for common law purposes (e.g., if “charitable,” a trust can endure indefinitely; private trusts by contrast must expire within a generation or two), while at the same time rejecting the hospital’s charitableness not for tax-exempt purposes. This analysis lays the foundation for drawing normative conclusions, such as “which is better, and why.”
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    The Role of Public Reason in Obergefell v. Hodges
    (2015) Katz, Robert; Robert H. McKinley School of Law
    Public reason, as developed by John Rawls, is the idea that the “moral or political rules that regulate our common life be, in some sense, justifiable or acceptable to all those persons over whom the rules purport to have authority.” This Essay explores the role that the idea of public reason plays in the opinions of Justice John Roberts and Justice Anthony Kennedy in Obergefell v. Hodges, the Supreme Court's 2015 landmark decision recognizing a constitutional right to same-sex marriage (SSM). Most notably: Roberts accuses Kennedy of violating public reason by grounding the right to SSM on a sectarian creed, namely, the comprehensive liberalism espoused by John Stuart Mill. Kennedy implicitly reproves citizens who support SSM bans on religious grounds, perhaps gesturing towards a civic duty or etiquette to refrain from supporting laws based solely on one’s creed. Roberts in turn criticizes Kennedy for unfairly applying the demands of public reason to ordinary citizens. In these ways, Roberts and Kennedy act less like exemplars of public reason, the role that Rawls envisions for a supreme court, and more like whistleblowers of others’ violations and misapplications of the idea.