Date: 9 February 2018
With the advent of the new millennium there has been a noticeable growth in the level of non-profit regulation across the globe. Many common law countries have sought to introduce statutory definitions of charitable purposes and public benefit while both civil and common law countries have focused regulatory attention on how to better govern nonprofits as a way to ensure greater accountability and transparency. A number of motivating factors behind this growth in statutory regulation can be identified, ranging from the fallout of domestic charity scandals to broader fears of terrorist exploitation of otherwise non-regulated nonprofits. At the same time, there has been an evolution and growth in many countries in the level of non-statutory regulation that has occurred in the non-profit sector with self-regulatory regimes attempting to shore up better fundraising practices, improved governance, and greater accountability of charities.
The Regulatory Waves project, jointly coordinated by Oonagh Breen, Alison Dunn and Mark Sidel, set out to unpick the relationship between non-statutory and statutory regulation of nonprofits. It sought to understand better the narrative shifts in individual countries between state regulation and alternatively sector regulation and through this examination to begin to ask what factors influenced the choice of one regulatory form over the other. By comparing the stories of regulatory change across 16 jurisdictions, with the assistance of 9 academics from around the world, the project attempted to identify the common drivers – whether of historical, political, cultural, donor-led or other origin – and to analyse see whether common trends emerged. The project looked at the experiences of Australia, Brazil, China, Ecuador, England and Wales, Ethiopia, Ireland, Israel, Kenya, Malawi, Mexico, Uganda, Scotland, Tanzania, the United States and Vietnam.
Bringing together scholars to collaborate at ARNOVA meetings in Hartford CT and Denver CO through colloquiums and paper panels and supplemented with additional workshop and plenary sessions at ISTR meetings in Muenster and Puerto Rico, the Regulatory Waves Project culminated in a co-edited book, Regulatory Waves: Comparative Perspectives on State Regulation and Self-Regulation Policies in the Nonprofit Sector, published by Cambridge University Press (New York) in December 2016. This presentation brings together some of the main themes and outcomes of the project and seeks to review current thinking on our starting hypothesis that the regulation of nonprofits within a country or region occurs on a cyclical basis with continuous interchange occurring between waves of state regulation subsequently followed and, sometimes superseded, by waves of non-statutory regulation. The purpose of this paper is to begin a new conversation as to whether the theoretical framework put forward by this study can be used as a predictive tool to assess where on the cycle of regulation a given country sits and whether knowing or better understanding this position and the factors that influence it might inform future directions in non-profit oversight.
Professor Oonagh Breen teaches at the School of Law, University College Dublin, Ireland. She received her doctorate in law (JSD) in comparative non-profit regulation from Yale Law School in 2006. She has held visiting appointments at De Paul Law School, Chicago, University Missouri Kansas City, University of California, Davis, Brooklyn Law School, and Southern Illinois University. Her research interests include the legal regulation and governance of charitable organizations from a comparative perspective. She has worked with non-profit representatives, the Law Reform Commission, the Charity Regulator and the Irish Government on issues relating to the reform of charity law. Since 2005 she is the Irish rapporteur for the United States International Grantmaking Project. She is currently a Board Member of the International Society for Third Sector Research (ISTR) and the Chair of the International Centre for Not for Profit Law. Her research has been published in such journals as Voluntas, Financial and Accounting Management Journal, Public Law, Non-profit Policy Forum and the International Journal for Not-for-Profit Law. Her recent co-edited and co-authored book, Regulatory Waves Comparative Perspectives on State Regulation and Self-Regulation Policies in the Nonprofit Sector is published by Cambridge University Press (hardback 2016, e-version 2017).
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