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What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel
What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel
Faculty Scholarship
This Article addresses corporate law's default rules, which allow corporations to waive their directors' liability for damages based on a breach of their fiduciary duty of care. Most large publicly held corporations have adopted such a waiver in their articles of association. This Article suggests that courts should limit the range of the waivers to the circumstances that existed when the voters voted and to the information they received before they voted. This Article distinguishes between public contracts (legislation) and private contracts (commercial transactions) and the default rules that apply to each. The Article shows that courts view corporations and …
What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel
What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel
Faculty Scholarship
This Essay addresses corporate law's Default Rules, which allow corporations to waive their directors' liability for damages for breach of their fiduciary duty of care. Most large corporations have adopted such a waiver. This Essay distinguishes Private Contracts from Public Contracts. Public Contracts include legislation, referendums, and votes on specific outcomes, such as union members' votes on the contracts that their representatives agreed upon with management. This Essay shows that the courts view corporations and corporate articles as Public Contracts. In some Public Contracts gap-filling rules limit the scope of the Public Contracts to the information that the voters received …
An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke
An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke
Faculty Scholarship
This Essay, originally presented at Lewis & Clark Law School’s 2006 Distinguished Intellectual Property Visitor lecture, discusses the challenges involved in developing a uniform law of software contracting. Technology and the law have developed since 1995, when the first efforts to codify such a law began. These earlier efforts were largely unsuccessful, and substantial uncertainty still exists in transactions involving software. In this Essay, Dean O’Rourke discusses the American Law Institute’s Principles project that seeks to identify approaches courts could use in adjudicating disputes involving software agreements. The challenges of developing the Principles include the same theoretical, practical and political …