The Future Direction of Delaware Law (Including a Brief Exegesis on Fee Shifting Bylaws)

Delaware sets the governance standards for most public companies. The ability to attract corporations could not be explained solely by the existence of a favorable statutory regime. Delaware was not invariably the first or the only state to implement management friendly provisions. Given the interpretive gaps in the statute and the critical importance of the common law in the governance process, courts played an outsized role in setting legal standards. The management friendly nature of the Delaware courts contributed significantly to the state’s attraction to public corporations. A current example of a management friendly trend in the case law had seen the recent decisions setting out the board’s authority to adopt bylaws under Section 109 of the Delaware General Corporation Law (DGCL), particularly those involving the shifting of fees in litigation against the corporation or its directors. The DGCL allows bylaws that address “the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers or employees.” The broad parameters are, however, subject to limits. Bylaws cannot be inconsistent with the certificate of incorporation or “the law.” Law includes the common law. The Delaware courts have used the limitations imposed by “the law” to severely restrict the reach of shareholder inspired bylaws. The courts have not used the same principles to impose similar restraints on bylaws adopted by the board of directors. This can be seen with respect to bylaws that restrict or even eliminate the right of shareholders to bring actions against management and the corporation. In ATP Tour, Inc. v. Deutscher Tennis Bund the court approved a fee shifting bylaw that had littl relationship to the internal affairs of the corporation. The decision upheld the bylaw as facially valid.The decision ignored a number of obvious legal infirmities. Among other things, the decision did not adequately address the requirement in Section 109(b) that bylaws be consistent with “the law.” The decision obliquely acknowledged that the provisions would “by their nature, deter litigation” but otherwise made no effort to assess the impact of this deterrence on shareholders causes of action. The provision in fact had the practical effect of restricting, if not eliminating, litigation rights granted by the DGCL and the common law. Perhaps most significantly, however, the bylaws significantly limited common law rights of shareholders to bring actions against the corporation and the board. Given the high dismissal rates for these actions, fee shifting bylaws imposed a meaningful risk of liability on plaintiffs. Moreover, because judgments in derivative suits were paid to the corporation, shareholders serving as plaintiffs confronted the risk of liability without any offsetting direct benefit. By preventing suits in this area, the bylaw effectively insulated the behavior of boards from legal challenge. The ATP decision was poorly reasoned and overstepped acceptable boundaries. The management friendly decision threatened the preeminent role of Delaware in the development of corporate law. The decision raised the specter of federal intervention and the potential for meaningful competition from the states. Because the opinion examined the bylaw in the context of non-stock companies, the reasoning may remain applicable only to those entities and never make the leap to for-profit stock corporations. Nonetheless, the analysis reflects a management friendly approach that does not adequately take into account the impact of the provision on the rights of shareholders.

Schleiermacher's Doctrine of Biblical Authority: An Alternative to Content-Based/Supernaturalist and Function-Based Rationalist Models

Author: Kerry W. Holton Title: SCHLEIERMACHER’S DOCTRINE OF BIBLICAL AUTHORITY: AN ALTERNATIVE TO CONTENT-BASED/SUPERNATURALIST AND FUNCTION- BASED/RATIONALIST MODELS Advisor: Theodore M. Vial, Jr. Degree Date: August 2015 This dissertation examines Friedrich Schleiermacher’s understanding of biblical authority and argues that, as an alternative to strictly supernaturalistic and rationalistic models, his understanding allows the New Testament to speak authoritatively in Christian religion in an age of critical, historical awareness. After classifying Schleiermacher’s position in a typology of the doctrine of biblical authority, this dissertation explores his conception of divine revelation and inspiration vis-à-vis scripture. It demonstrates that although he did not believe there is warrant for the claim of a direct connection between divine revelation and scripture, or that scripture is the foundation of faith, he nonetheless asserted that the New Testament is authoritative. He asserted the normative authority of the New Testament on the basis that it is the first presentation of Christian faith. This dissertation examines Schleiermacher’s “canon within the canon,” as well as his denial that the Old Testament shares the same normative worth and inspiration of the New. Although this dissertation finds difficulty with some of Schleiermacher’s views regarding the Old Testament, it names two significant strengths of what is identified as his evangelical, content-based, and rationalist approach to biblical authority. First, it recognizes and values the co-presence and co-activity of the supernatural and the natural !ii in the production of the New Testament canon. This allows both scripture and the church to share religious authority. Second, it allows Christian faith and the historical-method to coexist, as it does not require people to contradict what they know to be the case about science, history, and philosophy. Thus, this dissertation asserts that Schleiermacher’s understanding of biblical authority is a robust one, since, for him, the authority of scripture does not lie in some property of the texts themselves that historians or unbelievers can take away.

"Our Father Isaac": Reading the Sahidic Testament of Isaac in an Egyptian Monastic Context

This dissertation argues that the textual community of fourth or fifth century monastic Egypt read Testament of Isaac as an ascetical regimen in order to transform themselves into children of Isaac. T. Isaac highlights three particular dimensions of Isaac's character from the remembered tradition of Isaac that would have resonated in the Egyptian monastic context of the textual community - Isaac as priestly authority, Isaac as sacrifice, and Isaac as blind ascetic - to create a model for the new self that the textual community aimed to achieve. Two important ascetic practices in T. Isaac that the textual community was to perform were copying and reading T. Isaac. These two practices functioned as technologies of the self that helped the members of the textual community to transform their present subjectivity into a new self modeled on Isaac in T. Isaac.

The Dragon Tree in the Age of Exploration

he dragon tree, a peculiar species native to Socotra, southwest Arabia, east Africa, Morocco, Macaronesia, and the Canary islands, possesses an intriguing iconographic history. The first wave of images date from 1470 to 1550, beginning with Martin Schongauer’s 1470 engraving of The Flight into Egypt. These depictions portray the dragon tree in the context of a handful of biblical themes and with apparent symbolic import. After 1550, religious images of the dragon tree vanish abruptly and are replaced by representations of an empirical nature. Dragon tree iconography is notable for the extent to which it did and did not leave an impression on European art. In this paper I examine the inability of dragon tree images to gain the momentum required to propel them into European iconography more permanently, and the forces that may account for the abrupt change from biblical to botanical renderings.