Editors’ Note: Jill Horwitz remembers Marion Fremont-Smith, one of the most important figures in the study of nonprofit law in the last half-century, who died on December 30, 2021.
Marion Fremont-Smith died peacefully in her home of 60 years in Cambridge, Massachusetts on December 30th, 2021. She was 95. Marion’s contributions over her long career left an indelible mark on nonprofit law, regulation, scholarship, and the sector more generally.
Although Marion loved to talk about ideas, she was less forthcoming about herself, so a brief professional biography is in order. While raising three young children, she taught political science at Wellesley College, her alma mater. Her professional career in nonprofits began when she became the Director of the Public Charities Division in Massachusetts Attorney General’s Office in 1960. In 1962, the Russell Sage Foundation engaged Marion as the Project Director on the Study of Public Accountability of Charitable Foundations. The output of that project, Foundations and Government: State and Federal Law and Supervision (Russell Sage Foundation, 1965), quickly became the leading work on state and federal nonprofit foundation law. She joined the Boston law firm Choate, Hall & Stewart as an associate in 1964, focusing on tax-exempt organizations, trusts, and estate planning. She was elected partner at the firm in 1971, making her one of the first female partners in a Boston law firm. While in practice, she published Philanthropy and the Business Corporation (Russell Sage Foundation, 1972), a concise volume that, among other subjects, explores the roles and responsibilities of for-profit business in philanthropy. Her prescience has become obvious given that these issues are a central focus of business-corporation scholars many decades later.
Marion returned to the academy full time in 1998 as Senior Research Fellow at the newly established Hauser Center for Nonprofit Organizations at the Harvard Kennedy School. At the Hauser Center she directed research on governance and accountability of nonprofit organizations and published many articles, ran conferences, and regularly taught at Harvard Law School. Her third book, Governing Nonprofit Organizations (2004), was a vast work covering the history, policy, and law of nonprofits. She was Co-Reporter (and later Consultant) on her final major publication, the American Law Institute’s first Restatement of the Law, Charitable Nonprofit Organizations (2021). In addition to her full-time work in the sector, Marion held dozens of governing roles (e.g., Trustee of the Carnegie Endowment for International Peace for 26 years) and professional positions (e.g., Chair of the Section on Taxation, Committee on Exempt Organizations of the American Bar Association).
Marion influenced so many areas of scholarship and practice that it is hard to choose among them, but I’ll focus on two substantive influences. First, the significance of state law. It is common to see the terms “exempt organizations,” “nonprofits,” and “charities” used interchangeably. Yet the legal meanings of the terms are distinct. “Nonprofit” and “charitable” tend to refer to the status of an entity—a corporation, trust, or other type—based in state law, with a charity being a subset of nonprofits. Whether such an entity is tax-exempt (that is, exempt from income tax under federal or state tax law) or whether it has one of the many other benefits that entities deemed tax-exempt may enjoy (such as the ability to issue tax-exempt debt or be free from state and local property taxes) is a related, but separate matter. An entity that is a nonprofit under state law may be, but need not be, tax-exempt. However, an entity that is tax-exempt typically must be a state nonprofit.
Why do these distinctions matter? The authorities that grant and revoke exemption and similar benefits have a more limited regulatory role than do state authorities that enforce the requirements of nonprofit or charitable status. As Marion wrote, “Charities are a creature of state law.” Her historical work traces the roots of state law through centuries of common law that extended long before the Statute of Elizabeth in 1601. As Marion’s work made clear, compared to this state law, the short history of U.S. federal tax-exemption that began only in the early 20th century seems trifling.
Marion’s policy scholarship details the growth of the regulatory scope of the federal government via the IRS over the sector, including a very helpful discussion of the reorganization of the exempt organization activities of the IRS in Governing Nonprofit Organizations. Unlike the bulk of scholarship on charities, Marion’s scholarship centers on the states. She repeatedly makes clear that it is the state attorneys general who have the broadest and most important power to regulate charities. That power is grounded in the idea of parens patrie. As the father of the people, the King not only had the power to protect charitable assets; he had the duty to protect them.
Marion did not stint in her assignment of both the power and the duty of the attorney general to protect those assets. (And although she was delighted that state law was the subject of a Restatement, she was unhappy that the Restatement section on the attorney general spoke in terms of authority rather than duty). Marion believed that tax authorities had important powers and responsibilities, such as the responsibilities to protect the public purse. She knew that the federal government had more resources than the states, and that the federal role in regulation of the sector was significant. As a realist, she knew that attorneys general could not do the work without funding and personnel, both of which have been in short supply in many states.
Nonetheless, Marion’s was the leading voice for the view that the state responsibilities were most significant of all. The state had the responsibility of protecting the public interest in advancing the purposes of charity and of protecting charitable assets. She advocated for both roles throughout her life. It is fitting that she lived to see the New York Attorney General’s Charities Bureau act on its duty to serve the public with its power to investigate even such a high-profile charity as the Trump Foundation.
Second, Marion kept her focus on substantive charities law. Despite excursions by various courts discussing the law of charitable trusts or the law of charitable corporations, Marion was steadfast in her well-supported view that, although there are some differences in applicable law with respect to the legal form a charity may assume, the most important substantive areas of the law are the same regardless of the form. It is that deep understanding of the law that allowed a Restatement of the Law, Charitable Nonprofit Organizations to exist. By focusing on the critical commonalities of all charities—that they are private and that they can neither be owned by private owners (with the exception of another charity) nor adopt the purpose of seeking profits—a coherent law of charities emerges. It is Marion’s work that allows the Preface of the Restatement to include the following: “To the extent possible, this restatement sets forth a single law of charities, regardless of whether they are corporations, unincorporated associations, or charitable trusts, or whether they take some other legal form that a charity may adopt.”
In addition to her many substantive contributions, Marion’s influence will live through the many people she touched. The law is a particularly hierarchical field, and Marion found her way to the very top of it. Yet she was often the first woman to hold a position, and that fact inspired those behind her.
Marion also had uncommon curiosity. She was particularly interested in the ideas of young lawyers and scholars. Until the pandemic stopped travel in 2020, she kept a punishing professional travel schedule, attending meetings where she could be seen sitting with the youngest person in attendance, learning from and encouraging others.
Marion leaves an enviable legacy. The sector is immeasurable better from her scholarship, policy contributions, and mentorship of countless young thinkers. I will miss her.
– Jill Horwitz
Jill Horwitz is the David Sanders Professor in Law and Medicine and the inaugural Faculty Director of the Program on Philanthropy and Nonprofits at UCLA School of Law. She is also Professor of Public Affairs (by courtesy) at the UCLA Luskin School of Public Affairs, Research Associate at the National Bureau of Economic Research, and Adjunct Professor of Economics at the University of Victoria Department of Economics in British Columbia, Canada.