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Full-Text Articles in Law
Unsettledness In Delaware Corporate Law: Business Judgment Rule, Corporate Purpose, Lyman P. Q. Johnson
Unsettledness In Delaware Corporate Law: Business Judgment Rule, Corporate Purpose, Lyman P. Q. Johnson
Lyman P. Q. Johnson
This Article revisits two fundamental issues in corporate law. One — the central role of the business judgment rule in fiduciary litigation — involves a great deal of seemingly settled law, while the other — is there a mandated corporate purpose — has very little law. Using the emergent question of whether the business judgment rule should be used in analyzing officer and controlling shareholder fiduciary duties, the latter issue having recently been addressed by Chancellor Strine in the widely-heralded MFW decision, this Article proposes a fundamental rethinking of the rule’s analytical preeminence. For a variety of reasons, it is …
The Progressive Possibility Of Corporate Law, Kent Greenfield
The Progressive Possibility Of Corporate Law, Kent Greenfield
Kent Greenfield
In this article, I wish to argue that we find ourselves, at least in the United States and perhaps world-wide, in an unusual and special moment in the intellectual history of corporate law. I believe there is more openness to re-thinking corporate law than any time in a generation. And I do not only mean the parts of corporate law governing executive compensation or the due diligence required when facing a merger proposal. I also mean an openness to discuss the questions of first principle: What are corporations for? Who owns them? What are their obligations to society in general? …
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, …
Corporate Takeovers And Corporations: Who Are They For?, Lyman P. Q. Johnson
Corporate Takeovers And Corporations: Who Are They For?, Lyman P. Q. Johnson
Lyman P. Q. Johnson
No abstract provided.
Sovereignty Over Corporate Stock, Lyman P.Q. Johnson
Sovereignty Over Corporate Stock, Lyman P.Q. Johnson
Lyman P. Q. Johnson
No abstract provided.
Recalling Why Corporate Officers Are Fiduciaries, Lyman P.Q. Johnson, David K. Millon
Recalling Why Corporate Officers Are Fiduciaries, Lyman P.Q. Johnson, David K. Millon
Lyman P. Q. Johnson
For all the recent federal attention to regulating - and differentiating - corporate officer and director functions, a curious fact remains: state fiduciary duty law makes no distinction between the fiduciary duties of these two groups. Instead, courts and commentators routinely describe the duties of directors and officers together, and in identical terms. To lump officers and directors together as generic fiduciaries with no distinction being made between them, suggests - as patently is not the case - that their institutional function and legal roles within the corporation are the same. Such a view, consequently, undermines efforts more sharply to …
The Social Responsibility Of Corporate Law Professors, Lyman P.Q. Johnson
The Social Responsibility Of Corporate Law Professors, Lyman P.Q. Johnson
Lyman P. Q. Johnson
Most statements of corporate social responsibility focus on the responsibilities of corporate decision makers or their advisors Professor Johnson argues that corporate law professors-the persons who educate the students who will become lawyers counseling corporate decision makers-also have a social responsibility. He believes that professors should find various ways to raise the subject of corporate social responsibility in the basic corporations course, and he advocates rejecting a classroom approach that addresses only shareholder-manager relations After describing several possible ways to do this, Professor Johnson spotlights fiduciary laws as a fruitful area to enrich student understandings of director duties in a …
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 …
Corporate And Business Law (Annual Survey Of Virginia Law), Lyman P.Q. Johnson
Corporate And Business Law (Annual Survey Of Virginia Law), Lyman P.Q. Johnson
Lyman P. Q. Johnson
This article reviews changes in Virginia corporate and business law for the period from June 2000 through May 2001. Part II ex- amines legislative changes in corporate and other business stat- utes (excluding public service corporation and insurance law is- sues) based on Virginia General Assembly action in the 2001 session. Part III reviews judicial decisions during the year, in- cluding decisions addressing agency law, partnership law, and corporate law issues and principles. This article describes these decisions and, in several instances, it also critically analyzes the outcomes. Part IV summarizes a May 25, 2001, Order of the Vir- ginia …
Misreading The Williams Act, Lyman P.Q. Johnson, David K. Millon
Misreading The Williams Act, Lyman P.Q. Johnson, David K. Millon
Lyman P. Q. Johnson
No abstract provided.
Missing The Point About State Takeover Statutes, Lyman P.Q. Johnson, David K. Millon
Missing The Point About State Takeover Statutes, Lyman P.Q. Johnson, David K. Millon
Lyman P. Q. Johnson
No abstract provided.
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 …
The Modest Business Judgment Rule, Lyman P.Q. Johnson
The Modest Business Judgment Rule, Lyman P.Q. Johnson
Lyman P. Q. Johnson
This article argues that Delaware mis-formulates and mis-uses the business judgment rule. Properly understood, the business judgment rule's function in corporate law is quite modest. It is a narrowly-drawn judicial policy of nonreview which, in duty of care cases, shields the merits of board decisions from judicial scrutiny. The article contends that the business judgment rule, therefore, should be de-emphasized as an analytical construct in the law of director fiduciary duties and should be sharply differentiated from the broader-gauged duty of due care. Doing so will pave the way for Delaware courts to rethink the importance of articulating a robust, …
The Case Beyond Time, Lyman P.Q. Johnson, David K. Millon
The Case Beyond Time, Lyman P.Q. Johnson, David K. Millon
Lyman P. Q. Johnson
The Delaware Supreme Court's opinion in Paramount Communications, Inc. v. Time, Inc.' treats several important questions that arise in connection with hostile corporate takeovers. At the same time, it leaves three critical issues unanswered. In this article, we first briefly describe what the Time decision did, comparing Chancellor William Allen's somewhat discursive Chancery Court opinion with the more peremptory ruling of the Supreme Court. Next, we identify three unarticulated but potentially far-reaching implications of both the Supreme Court's and Chancellor Allen's reasoning that threaten to destabilize seemingly settled doctrine governing the conduct of target company management.
Corporate Takeovers And Corporate Law: Who's In Control?, Lyman P.Q. Johnson, David K. Millon
Corporate Takeovers And Corporate Law: Who's In Control?, Lyman P.Q. Johnson, David K. Millon
Lyman P. Q. Johnson
No abstract provided.
The Delaware Judiciary And The Meaning Of Corporate Life And Corporate Law, Lyman P.Q. Johnson
The Delaware Judiciary And The Meaning Of Corporate Life And Corporate Law, Lyman P.Q. Johnson
Lyman P. Q. Johnson
No abstract provided.
Law And Legal Theory In The History Of Corporate Responsibility: Corporate Personhood, Lyman P.Q. Johnson
Law And Legal Theory In The History Of Corporate Responsibility: Corporate Personhood, Lyman P.Q. Johnson
Lyman P. Q. Johnson
This paper, part of a larger scholarly project, addresses one of four areas – i.e., the emergence of corporate personhood – where, historically, law has both influenced and mirrored cultural expectations concerning corporate responsibility. The other areas (treated elsewhere) are corporate purpose, corporate regulation, and corporate governance. Corporate personhood is a subject of longstanding and recurring interest that, notwithstanding it has been a settled concept since the 19th century, continues to vex and excite, as seen in the U. S. Supreme Court’s splintered 5-4 decision in the 2010 case of Citizens United v. Federal Election Commission. The decades-long debates about …
Faith And Faithfulness In Corporate Theory, Lyman P.Q. Johnson
Faith And Faithfulness In Corporate Theory, Lyman P.Q. Johnson
Lyman P. Q. Johnson
No abstract provided.
The Eventual Clash Between Judicial And Legislative Notions Of Target Management Conduct, Lyman P.Q. Johnson
The Eventual Clash Between Judicial And Legislative Notions Of Target Management Conduct, Lyman P.Q. Johnson
Lyman P. Q. Johnson
No abstract provided.
Good Faith In Revlon-Land, Christopher M. Bruner
Good Faith In Revlon-Land, Christopher M. Bruner
Christopher M. Bruner
The Delaware Supreme Court has set a very high hurdle for plaintiffs challenging directors' good faith in the sale of a company. In Lyondell Chemical Company v. Ryan, the court held that unconflicted directors could be found to have breached the good faith component of their duty of loyalty in the transactional context only if they "knowingly and completely failed to undertake," and "utterly failed to attempt" to discharge their duties. In this essay I argue that the Lyondell standard effectively imports into the transactional context the exacting standard previously applied in the oversight context — a move clearly aimed …
The Constitution, The Roberts Court & Business: The Significant Business Impact Of The Supreme Court's 2011-2012 Term, Corey A. Ciocchetti
The Constitution, The Roberts Court & Business: The Significant Business Impact Of The Supreme Court's 2011-2012 Term, Corey A. Ciocchetti
Corey A Ciocchetti
The 2011-2012 Supreme Court term created quite the media buzz. The Affordable Care Act cases and the controversial Arizona immigration law dominated the headlines. But the term also included other fascinating yet less sensationalized cases. The Court heard its fair share of criminal law controversies involving derelict defense attorneys and prosecutors as well as civil procedure disputes involving qualified immunity for witness in grand jury proceedings and private parties assisting the government in litigation. The justices also entertained arguments on a federal law allowing United States citizens born in Jerusalem to have “Israel” stamped as their birthplace on a passport. …
Improving Fraudulent Transfer Law In Leverage Buy-Outs Through Judicial Certainty & Reliability, Vincent V. Hilldrup
Improving Fraudulent Transfer Law In Leverage Buy-Outs Through Judicial Certainty & Reliability, Vincent V. Hilldrup
Vincent V. Hilldrup
LBOs that file for bankruptcy are routinely challenged under fraudulent transfer law, where plaintiffs allege that the LBO unreasonably reduced the target’s liquidity and capital adequacy, saddled it with debt and was completed as a means of funneling company assets to both current and former shareholders. These cases will bestow upon bankruptcy courts the responsibility and power of efficiently allocating billions of dollars to classes of creditors and clawing back funds from shareholders. Since these cases will have a crucial impact on the overall economy, it is imperative that bankruptcy courts wield their authority and power in a predictable, fair, …