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Full-Text Articles in Law
Reality Check On Officer Liability, Lyman P.Q. Johnson
Reality Check On Officer Liability, Lyman P.Q. Johnson
Lyman P. Q. Johnson
This article addresses the fiduciary duties of corporate officers. Responding to a critique that recent scholarly analyses of officers depart from reality, it argues that, on a variety of grounds, those analyses are more realistic than the critique and provide doctrinal coherence and advance the goal of meaningful executive accountability. The divergent governance functions of directing versus managing are described and it is argued that those disparate roles should matter for fiduciary duty analysis. No great outbreak of litigation should be expected if officers are held to a stricter duty of care than directors because boards of directors, not courts, …
Are Corporate Officers Advised About Fiduciary Duties, Lyman P.Q. Johnson
Are Corporate Officers Advised About Fiduciary Duties, Lyman P.Q. Johnson
Lyman P. Q. Johnson
This Article reports the results of an empirical study of whether and how in-house corporate counsel advise corporate officers about fiduciary duties. The fiduciary duties of officers long have been neglected by courts, scholars, and lawyers, as the Introduction explains, even though executives play a central role in corporate success and failure. The study’s findings, organized by type of company (public or private), size, and attorney position within the firm, show several interesting patterns in advice-giving practices. For example, fewer than half of all respondents provided advice to officers below the senior-most rank. The results raise the possibility that, unlike …
After Enron: Remembering Loyalty Discourse In Corporate Law, Lyman P.Q. Johnson
After Enron: Remembering Loyalty Discourse In Corporate Law, Lyman P.Q. Johnson
Lyman P. Q. Johnson
The demise of monetary damages as a remedy for breach of the corporate director duty of due care means that only a breach of the duty of loyalty or good faith affords the possibility of holding corporate directors personally liable for wrongdoing. The author argues that the fiduciary duty of loyalty contains both a widely appreciated, but rather minimal, "non-betrayal" aspect and a less appreciated, but more affirmative, "devotion" dimension. The affirmative. thrust of loyalty, grounded in widely-shared cultural norms and finding expression in myriad literary and religious stories, offers a doctrinal avenue for addressing a potentially broader range of …
Counter-Narrative In Corporate Law: Saints And Sinners, Apostles And Epistles, Lyman P.Q. Johnson
Counter-Narrative In Corporate Law: Saints And Sinners, Apostles And Epistles, Lyman P.Q. Johnson
Lyman P. Q. Johnson
Corporate law is bi-vocal. On the one hand, liberating and amoral statutes permit a master narrative of business persons eagerly pursuing the good life as they see it. The mixture of such lax law and human frailty frequently leads to the unleashing of boundless ambition, vanity, avarice, duplicity, and much mischief. On the other hand, another voice in corporate law occasionally moves into the foreground to interrupt and tell its own story – a counter-narrative demanding a measure of self-restraint – when those who direct or manage company affairs press self-gain (or sloth) to the point of intolerable excess. The …
Reality Check On Officer Liability, Lyman P.Q. Johnson
Reality Check On Officer Liability, Lyman P.Q. Johnson
Scholarly Articles
This article addresses the fiduciary duties of corporate officers. Responding to a critique that recent scholarly analyses of officers depart from reality, it argues that, on a variety of grounds, those analyses are more realistic than the critique and provide doctrinal coherence and advance the goal of meaningful executive accountability. The divergent governance functions of directing versus managing are described and it is argued that those disparate roles should matter for fiduciary duty analysis. No great outbreak of litigation should be expected if officers are held to a stricter duty of care than directors because boards of directors, not courts, …
Counter-Narrative In Corporate Law: Saints And Sinners, Apostles And Epistles, Lyman P.Q. Johnson
Counter-Narrative In Corporate Law: Saints And Sinners, Apostles And Epistles, Lyman P.Q. Johnson
Scholarly Articles
Corporate law is bi-vocal. On the one hand, liberating and amoral statutes permit a master narrative of business persons eagerly pursuing the good life as they see it. The mixture of such lax law and human frailty frequently leads to the unleashing of boundless ambition, vanity, avarice, duplicity, and much mischief. On the other hand, another voice in corporate law occasionally moves into the foreground to interrupt and tell its own story – a counter-narrative demanding a measure of self-restraint – when those who direct or manage company affairs press self-gain (or sloth) to the point of intolerable excess. The …
Are Corporate Officers Advised About Fiduciary Duties, Lyman P.Q. Johnson
Are Corporate Officers Advised About Fiduciary Duties, Lyman P.Q. Johnson
Scholarly Articles
This Article reports the results of an empirical study of whether and how in-house corporate counsel advise corporate officers about fiduciary duties. The fiduciary duties of officers long have been neglected by courts, scholars, and lawyers, as the Introduction explains, even though executives play a central role in corporate success and failure. The study’s findings, organized by type of company (public or private), size, and attorney position within the firm, show several interesting patterns in advice-giving practices. For example, fewer than half of all respondents provided advice to officers below the senior-most rank. The results raise the possibility that, unlike …
Senior Corporate Officers And The Duty Of Candor: Do The Ceo And Dfo Have A Duty To Inform?, Z. Jill Barclift
Senior Corporate Officers And The Duty Of Candor: Do The Ceo And Dfo Have A Duty To Inform?, Z. Jill Barclift
Faculty Scholarship
This article focuses on the duty to inform as a framework to assess liability of senior officers of public companies who withhold information from directors. The broadening of the definition of the duty to inform that senior officers owe directors to include an underlying affirmative duty to provide information, even when director or shareholder action is not requested, offers an opportunity for greater monitoring of corporate governance by focusing on those often most culpable. Currently, the plain language of Delaware’s delegation of authority statute protects directors who reasonably rely in good faith on the reports of corporate officers. However, officers’ …
Daedalean Tinkering, Sean J. Griffith
Daedalean Tinkering, Sean J. Griffith
Michigan Law Review
Part I of this Review describes Skeel's account of corporate scandal, focusing on the central theme of excessive risk-taking. Part II examines Skeel's most original policy proposal-the creation of an investor insurance scheme to protect against excessive risk. Although the proposal takes up only a few pages of the book, it targets the books' core concern-the risk of corporate fraud. In evaluating the proposed investor insurance regime, this Review raises a set of objections based on cost and administrability and argues that an insurance regime would be duplicative of existing mechanisms that effectively spread the risk of financial fraud. Part …
After Enron: Remembering Loyalty Discourse In Corporate Law, Lyman P.Q. Johnson
After Enron: Remembering Loyalty Discourse In Corporate Law, Lyman P.Q. Johnson
Scholarly Articles
The demise of monetary damages as a remedy for breach of the corporate director duty of due care means that only a breach of the duty of loyalty or good faith affords the possibility of holding corporate directors personally liable for wrongdoing. The author argues that the fiduciary duty of loyalty contains both a widely appreciated, but rather minimal, "non-betrayal" aspect and a less appreciated, but more affirmative, "devotion" dimension. The affirmative. thrust of loyalty, grounded in widely-shared cultural norms and finding expression in myriad literary and religious stories, offers a doctrinal avenue for addressing a potentially broader range of …