Volume 99

The Principal Problem: Towards a More Limited Role for Fiduciary Law in the Nonprofit Sector

Nonprofit law scholars have increasingly recognized that state fiduciary law developed to govern for-profit corporations does not readily translate into the nonprofit sector. A substantial body of literature has sought to strengthen nonprofit governance by modifying for-profit fiduciary law to better fit the needs of the nonprofit sector. No one has answered, however, the fundamental question of to whom nonprofit boards and directors owe their fiduciary duties. Without understanding whose interests fiduciary law should protect, attempts to strengthen it are premature.

Directors and officers of for-profit corporations owe their duties to shareholders. Nonprofit corporations lack shareholders but could theoretically be accountable to donors, beneficiaries, customers, the state, or their charitable purpose. This Note argues that nonprofit corporations in fact have no appropriate principals, and thus fiduciary law is a poor governance mechanism for the nonprofit sector. The legal toolkit available to reform nonprofit governance is thus more limited than has been previously acknowledged. In the future, legal efforts to reform nonprofit governance should focus on creating targeted rules to address specific abuses and on creating conditions that allow market-based governance mechanisms to flourish.

The Dark Side of Town: The Social Capital Revolution in Residential Property Law

Social capital has pervaded property law, with scholars and policy-makers advocating laws and property arrangements to promote social capital and relying on social capital to devolve property governance from legal institutions to resident groups. This Article challenges the prevailing view of social capital’s salutary effects with a more skeptical account that examines the dark side of residential social capital—its capacity to effectuate local factions and to promote restraints and inegalitarianism that close off property. I introduce a set of claims about social capital’s dark side in residential property and explore these points through the examples of local racial purging, land cartels, and residential self-governance. First, contrary to the assumption of a social capital deficit, residential racial segregation and land cartelization, perhaps the deepest imprints on the American property landscape today, suggest an abundance of local social capital and possible unintended consequences of interventions to build social capital. Second, “governing by social capital,” or relying on social capital for property self-governance, may empower factions, breed conflict, and increase the demand for residential homogeneity as a proxy for cooperation. In light of the mixed evidence for social capital’s benefits and its sizeable dark side, the more pressing and productive role for property law is not to promote social capital, but to address its negative spillovers and illiberal effects.

A Constitutional Theory of Habeas Power

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as ‘lawful’ custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. ‘A Constitutional Theory of Habeas Power’ is an inquiry into the newly-minted principle that the federal Constitution guarantees some quantum of habeas process.

I argue that Article III combines with the Suspension Clause to guarantee habeas process and to specify the exclusive conditions by which Congress may restrict it. My ‘Habeas Power Theory’ has two global principles: (1) that the constitution entitles all federal prisoners to some quantum of habeas (or substitute) process before an Article III judge; and (2) that, absent a formal suspension, the constitution does not permit Congress to restrict judicial power to determine what constitutes proof of lawful custody.

By cohering the new writ history, decisional law, and maxims of federal jurisdiction, I sketch a theory for how judges ought to use habeas to test different forms of federal power—for immigration, military, and criminal custody. ‘Habeas Power’ represents an entry in a new thread of habeas literature, growing out of the War-on-Terror litigation and focusing on what one might call the ‘core features’ of the writ. Methodologically, the Article embraces the renewed emphasis on pre-Revolutionary English writ practice and habeas suspension statutes. It is also the scholarship’s most extensive treatment of habeas jurisdiction as an Article III remedial power over federal custody. By formulating the habeas authority as a power of judges, I try to square an affirmative constitutional guarantee of habeas process with more established maxims of federal jurisdiction.

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