2 resultados para Judgments
em Digital Commons @ DU | University of Denver Research
Resumo:
Robert Kennedy's announcement of the assassination of Martin Luther King, Jr., in an Indianapolis urban community that did not revolt in riots on April 4, 1968, provides one significant example in which feelings, energy, and bodily risk resonate alongside the articulated message. The relentless focus on Kennedy's spoken words, in historical biographies and other critical research, presents a problem of isolated effect because the power really comes from elements outside the speech act. Thus, this project embraces the complexities of rhetorical effectivity, which involves such things as the unique situational context, all participants (both Kennedy and his audience) of the speech act, aesthetic argument, and the ethical implications. This version of the story embraces the many voices of the participants through first hand interviews and new oral history reports. Using evidence provided from actual participants in the 1968 Indianapolis event, this project reflects critically upon the world disclosure of the event as it emerges from those remembrances. Phenomenology provides one answer to the constitutive dilemma of rhetorical effectivity that stems from a lack of a framework that gets at questions of ethics, aesthetics, feelings, energy, etc. Thus, this work takes a pedagogical shift away from discourse (verbal/written) as the primary place to render judgments about the effects of communication interaction. With a turn to explore extra-sensory reasoning, by way of the physical, emotional, and numinous, a multi-dimensional look at public address is delivered. The rhetorician will be interested in new ways of assessing effects. The communication ethicist will appreciate the work as concepts like answerability, emotional-volitional tone, and care for the other, come to life via application and consideration of Kennedy's appearance. For argumentation scholars, the interest comes forth in a re-thinking of how we do argumentation. And the critical cultural scholar will find this story ripe with opportunities to uncover the politics of representation, racialized discourse, privilege, power, ideological hegemony, and reconciliation. Through an approach of multiple layers this real-life tale will expose the power of the presence among audience and speaker, emotive argument, as well as the magical turn of fate which all contributes the possibility of a dialogic rhetoric.
Resumo:
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.