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.

Pieter Bruegel the Elder’s Netherlandish Proverbs and Sixteenth Century Dutch Semiotics

"In 1559, Pieter Bruegel the Elder‘s depiction of {7f2015}Netherlandish Proverbs‖ illustrated his profound understanding of the Dutch love for proverbs, their contemporary values, and appreciation for moral lessons in art forms. Depicting gestures and poses that represented proverbial phrases enabled Bruegel‘s leap from didactic labels employed by other artists to his inscription-free success of {7f2015}Netherlandish Proverbs.‖ My examination reveals that Bruegel‘s employment of gestural imagery, indicating rhetorical phrases or proverbs, was reinforced by a history of scholarly curatorship for written proverb collections, humanist interest in proverbs, and use of Dutch vernacular to bolster protonational pride"

On Becoming a Working Visual Artist: Opportunities and Challenges Along the Path

Thousands of students graduate from colleges and art schools every year with the goal of becoming working visual artists. The majority of them, however, find that earning a living as a working artist is a tough and competitive career path. This Capstone Project, through an extensive literature review and interviews, examines the factors and characteristics that influence whether an individual will make the leap to becoming a working visual artist. Research results indicate that primary factors in achieving the status of working visual artists include specific personality traits, experiential and career-oriented arts education, and development of strong business skills.