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.

New Middle East Cold War: Saudi Arabia and Iran's Rivalry

The competing powers of Saudi Arabia and Iran continue to redress and reverse the strategic imbalance and direction of the Middle East’s regional politics. The 1979 Iranian Revolution catapulted these two states into an embittered rivalry. The fall of Saddam Hussein following the 2003 U.S. led invasion, the establishment of a Shi’ite Iraq and the 2011 Arab Uprisings have further inflamed tensions between Saudi Arabia and Iran. Iran and Saudi Arabia have not confronted each other militarily, but rather have divided the region into two armed camps on the basis of political and religious ideology in seeking regional allies and promulgating sectarianism as they continue to exploit the region’s weak states in a series of proxy wars ranging from conflicts in Iraq to Lebanon. The Saudi-Iranian strategic and geopolitical rivalry is further complicated by a religious and ideological rivalry, as tensions represent two opposing aspirations for Islamic leadership with two vastly differing political systems. The conflict is between Saudi Arabia, representing Sunni Islam via Wahhabism, and Iran, representing Shi’ite Islam through Khomeinism. The nature of the Saudi-Iranian rivalry has led many Middle East experts to identify their rivalry as a “New Middle East Cold War.” The Saudi-Iranian rivalry has important implications for regional stability and U.S. national security interests. Therefore, this thesis seeks to address the question: Is a cold war framework applicable when analyzing the Saudi Arabian and Iranian relationship?

A Qualitative Study of Potential Suicide Risk Factors Among Soldiers Transitioning From Operation Iraqi Freedom/Operation Enduring Freedom

Using qualitative methods, this study explored potential risk factors for suicide, as defined by Joiner's Interpersonal-Psychological Theory of Suicide (IPTS), in a population of Soldiers returning from deployment in Operation Enduring Freedom/Operation Iraqi Freedom (OEF/OIF). Sixty-eight Soldiers participated in semi-structured interviews during the period of transition from deployment to the garrison environment. These Soldiers were asked about changes in perception of pain, experiences of perceived burdensomeness, and lack of belonging. Interviews were transcribed and analyzed. A phenomenological methodology was employed (Creswell, 2006). In response to questions about perception of pain, Soldiers discussed both positive and negative changes in their experience of physical and emotional pain. When asked about experiences of perceived burdensomeness, Soldiers described changes related to deployment, such as injuries and combat related guilt, as well as changes related to transition from combat, including care seeking, reintegration into family and society, and emotional distancing. Regarding the experience of lack of belonging, Soldiers described difficulties related to the deployment, such as combat injuries, leadership roles, and individual differences, as well as difficulties related to reintegration such as symptoms of emotional numbing and distancing. Findings highlight the potential utility of IPTS in exploring both acute and chronic suicide risk factors associated with deployment and transition, as well as potential treatment strategies that may reduce suicide risk in the population of Soldiers during reintegration.