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Full-Text Articles in Law
Judicial Review Of Directors' Duty Of Care: A Comparison Between U.S. & China, Zhaoyi Li
Judicial Review Of Directors' Duty Of Care: A Comparison Between U.S. & China, Zhaoyi Li
Articles
Articles 147 and 148 of the Company Law of the People’s Republic of China (“Chinese Company Law”) establish that directors owe a duty of care to their companies. However, both of these provisions fail to explain the role of judicial review in enforcing directors’ duty of care. The duty of care is a well-trodden territory in the United States, where directors’ liability is predicated on specific standards. The current American standard, adopted by many states, requires directors to “discharge their duties with the care that a person in a like position would reasonably believe appropriate under similar circumstances.” However, both …
Rethinking "Political" Considerations In Investment, David H. Webber
Rethinking "Political" Considerations In Investment, David H. Webber
Faculty Scholarship
Five years ago, Professor David H. Webber was invited to deliver an address both to our Delaware Law School community and to the Delaware Bench and Bar as Visiting Scholar in Residence of Corporate and Business Law. Webber's Speech, "Rethinking 'Political' Considerations in Investment," made several predictions about the rise of politicized investment which were quite prescient. As relevant today as when it was delivered, this piece explores the consideration of investment factors outside the traditional realm of shareholder profit maximization, both in its current state and in the future. Webber's analysis of how investors balance the role of capital …
The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine
The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine
Scholarly Works
This article aims to explore the notion of the lawyer’s ethical responsibility to go “beyond” the letter of the law and to comply with the “spirit” or “purpose” of the law. The article suggests that, notwithstanding its promotion of admirable principles and goals, a spirit of the law model may prove inconsistent with basic legal and ethical obligations of lawyers. The lawyer’s duties as fiduciary, as agent, and as zealous advocate, responsible for representing the best interests of the client, preclude the lawyer from focusing on the spirit and purpose of the law rather than on the aims of the …
Being Virtuous And Prosperous: Sri’S Conflicting Goals, Benjamin J. Richardson, Wes Cragg
Being Virtuous And Prosperous: Sri’S Conflicting Goals, Benjamin J. Richardson, Wes Cragg
Articles & Book Chapters
Can SRI be a means to make investors both virtuous and prosperous? This paper argues that there can be significant tensions between these goals, and that SRI (and indeed all investment) should not allow the pursuit of maximizing investment returns to prevail over an ethical agenda of promoting social and economic justice and environmental protection. The discourse on SRI has changed dramatically in recent years to the point where its capacity to promote social emancipation, sustainable development and other ethical goals is in jeopardy. Historically, SRI was a boutique sector of the market dominated by religious-based investors who sought to …
Drafting Attorneys As Fiduciaries: Fashioning An Optimal Ethical Rule For Conflicts Of Interest, Paula A. Monopoli
Drafting Attorneys As Fiduciaries: Fashioning An Optimal Ethical Rule For Conflicts Of Interest, Paula A. Monopoli
Faculty Scholarship
The American Bar Association recently revised the ethical rules that govern lawyers. Its Ethics 2000 Commission proposed a number of changes to the Model Rules of Professional Conduct, including revisions to the rules that affect how the profession handles conflicts of interest in the area of attorneys who draft instruments that name themselves as fiduciaries. The intersection of these changes, with their subsequent clarification by an ABA opinion issued in May 2002, has broad implications for attorneys practicing in this area. Given the increasing elderly population, the trillions of dollars that they are transferring to their baby-boomer children, and the …
Enron And The Corporate Lawyer: A Primer On Legal And Ethical Issues, Roger C. Cramton
Enron And The Corporate Lawyer: A Primer On Legal And Ethical Issues, Roger C. Cramton
Cornell Law Faculty Publications
The stunning collapse of Enron, coupled with the large number of accounting irregularities and apparent corporate fraud, have created a climate in which reform and improvement of the law governing corporate lawyers is underway. The ABA Task Force on Corporate Responsibility has issued a preliminary report that recommends promising changes in the rules of professional conduct. And, the Corporate Reform Act of 2002 has changed the landscape by authorizing the SEC to promulgate rules of professional conduct for securities lawyers and directing the SEC to issue a rule requiring securities lawyers to climb the corporate ladder to prevent or rectify …
Fiduciary Duty, Contract, And Waiver In Partnerships And Limited Liability Companies, Richard A. Booth Marbury Research Professor Of Law
Fiduciary Duty, Contract, And Waiver In Partnerships And Limited Liability Companies, Richard A. Booth Marbury Research Professor Of Law
Faculty Scholarship
Among the controversies swirling around the promulgations of new uniform statutes governing partnerships and LLCs is the question whether and to what extend fiduciary duties should be made mandatory or waivable. Although courts and commentators have not traditionally focused on the costs of fiduciary duties, the costs are significant in that such duties may preclude agents from engaging in other legitimate ventures. Indeed, fiduciary duty may be used by those to whom it is owed to prevent competition or extort side benefits form participants. Mandatory duties effectively require participants who may identify multiple business opportunities to overinvest their human capital …
Has The Dip's Attorney Become The Ultimate Creditors' Lawyer In Bankruptcy Reorganization Proceedings?, Nancy B. Rapoport, C. R. Bowles
Has The Dip's Attorney Become The Ultimate Creditors' Lawyer In Bankruptcy Reorganization Proceedings?, Nancy B. Rapoport, C. R. Bowles
Scholarly Works
This article discusses the issues facing the lawyer for the estate in a bankruptcy case. It debunks the idea that the lawyer for the estate represents any single constituency, and it tries to redefine the fiduciary duties that the estate lawyer has to the bankruptcy estate.
From Tort To Crime: Some Reflections On The Criminalization Of Fiduciary Breaches And The Problematic Line Between Law And Ethics, John C. Coffee Jr.
From Tort To Crime: Some Reflections On The Criminalization Of Fiduciary Breaches And The Problematic Line Between Law And Ethics, John C. Coffee Jr.
Faculty Scholarship
Within the context of mail and wire fraud prosecutions, criminal liability for breach of fiduciary duties is being imposed with increasing frequency. Professor Coffee discusses the disturbing failure of the courts to require that the fiduciary's conduct have caused legally cognizable harm to the beneficiary. He concludes that an affirmative defense should be available to fiduciaries to show the lack of proximate cause between a breach and the injury. In addition, federal enforcement should occur only after state and private remedies have proven inadequate.