Is Federalization of Charity Law All Bad? What States Can Learn from the Internal Revenue Code

Professor Ascher makes a compelling case that federal law, and especially the Internal Revenue Code (the "Code"), has eclipsed state law as the predominate regulating force of the charitable sector. Professor Ascher views this trend with trepidation-he criticizes the Code for imposing a "frightening and bewildering array of often draconian penalties" and for its failure to track preexisting state-law concepts. I agree that the combination of state and federal law creates an impenetrable maze that charitable fiduciaries find overly difficult to negotiate. Yet I am reluctant to finger the Code as the primary culprit.

In my view, state law deserves much of the blame for its own demise. For when it comes to legal issues at the core of charity law-the non- distribution constraint and the charitable purpose requirement-state law is a largely useless tool for guiding or disciplining charitable boards. This failure is not solely attributable to attorneys' general lack of resources or interest. The larger problem lies with the law itself.

A compilation of the fuzziest of standards, state law gives no guidance to charitable fiduciaries. And charitable fiduciaries-volunteers with good intentions but little time and few resources-are uniquely in need of clear guidance.