Linda Sugin (Fordham) has posted Resisting the Corporatization of Nonprofit Governance: Transforming Obedience into Fidelity, 76 Fordham L. Rev. ___ (2007), on SSRN.  Here is the abstract:

This paper is part of a symposium on Nonprofit Organizations, Economic Challenges and the Future of Charities. The law of nonprofit governance is moving toward a more corporate model of accountability and borrowing from the law of business organizations. While applauding some of these developments, this essay expresses concern over the creeping corporatization of the law of charities, and argues that nonprofit corporations differ from business corporations in ways that the law must recognize. The market incentives that control business behavior are absent in nonprofit organizations, so regulatory mechanisms must act as substitutes. Nonprofit organizations, and charities in particular, are public/private organizations, so there must be greater government interest in their oversight than there is for purely private businesses.

Individuals in charge of nonprofit corporations share the fiduciary duties of care, loyalty, and good faith with their corporate counterparts, and some scholars have argued that these duties are sufficient. A unique duty for nonprofit directors – the duty of obedience – has fallen out of favor. This essay argues that obedience has been the stepchild fiduciary duty because it may be too rigid to be reconciled with contemporary notions of board discretion and the nonprofit corollary of the business judgment rule. Nevertheless, this paper advocates a reinvigorated and redefined duty to charitable mission, which it calls “fidelity.” It argues that the corporate duties are insufficient to reach the substantive obligation that nonprofit directors should have to pursue charitable goals. Fidelity creates a legal norm explicitly connected to charitable mission that also accommodates considerable flexibility and discretion for nonprofit boards. The essay argues that an obligation of fidelity is necessary to distinguish nonprofit directors from business directors, signals the importance of charitable mission for nonprofit organizations, distinguishes charities from social-entrepreneurial businesses, and requires subordination of non-charitable goals.