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.

Staying in the Delaware Corporate Governance Lane: Fee Shifting Bylaws and a Legislative Reaffirmation of the Rules of the Road

The Delaware legislature has taken steps towards the adoption of amendments to the Delaware General Corporation Law (DGCL) that would prohibit fee shifting provisions in the articles and bylaws. The language in the legislative proposal, however, addresses fee shifting provisions only in the context of "internal corporate claims." Some have raised concerns that this language would allow for fee shifting provisions that applied to other types of actions, including at least some cases brought under the securities laws. This piece suggests that in fact the Delaware General Corporation Law already prohibits the adoption of bylaws and certificate provisions that apply to causes of action unrelated to internal corporate claims. As a result, there was no reason for the Delaware legislature to expressly bar fee shifting provisions in these types of actions.

Islamic Political Thought: Reviving a Rationalist Tradition

This work develops the foundations of an Islamic argument for secular, liberal democracy from within the Islamic discursive tradition. First, it challenges the presentation of contemporary Islamic political thought as a unified, continuous development of the classical canon by showing the influence of the now marginalized medieval rationalists in the development of Islamic political thought. The classical rationalist concern with divine justice forced the founders of Sunni orthodoxy to state their epistemologies and their positions on ethical ontology. The orthodox positions, and their related methods of legal-juristic reasoning, are shown to be incapable of accommodating the modern Islamic positions on political representation, slavery, and just war. This leads to the second argument of the work, that the modern Islamic discourse is better understood as a reflection of the central concern with justice and its rationalist epistemology and ethical ontology we find in the writings of classical rationalists. This argument is made by examining the works of three classical rationalists, a theologian, a philosopher, and a historian. Their political positions, shaped by their rationalism and concern with justice, challenged their orthodox contemporaries, and provide substantive critiques of the classical political accommodations, methods of politico-legal reasoning, and hence, of modern Islamist political projects. The final chapter reveals how far the mainstream of Islamic political thought has deviated from the classical discourses, since the 19th century, by adopting the language and ideals of the European Enlightenment. This shift is presented as a triumph of classical rationalism over literalism, whose epistemological foundations and ontological implications have yet to be acknowledged and appreciated.

Finding Onesimus: Recovering the Story of a First-Century Fugitive Slave

Author: Ryan Lokkesmoe Title: Finding Onesimus: Recovering the Story of a First-Century Fugitive Slave Advisor: Pamela Eisenbaum Degree Date: August 2015 ABSTRACT This dissertation is an investigation into the experience of a first-century fugitive slave named Onesimus, who is known to us primarily through Paul’s letter to Philemon (Phlm) in the New Testament. Within this broader purpose, this project challenges a popular historical theory for Onesimus’ flight, the so-called Amicus Domini theory. This is the theory that Onesimus fled his master Philemon with the premeditated intention of seeking out the Apostle Paul as a peacemaker in a conflict Onesimus was having with Philemon. The Amicus Domini theory is accepted by many scholars, though rarely discussed in detail or examined critically. The goal of this project is to offer a more probable historical reconstruction of Onesimus’ flight – one that takes better stock of the available evidence (historical, textual, archaeological, legal, and rhetorical). This project is rooted in the sub-discipline of the Historical Critical method, though rhetorical analysis is applied as well. This study offers a translation and commentary of Phlm, as well as an examination of Paul’s rhetoric in the letter. Other sources that specifically mention Onesimus are also investigated, e.g. Colossians, ancient Christian commentators, and the subscriptions in the manuscripts. The project also examines slavery in the Ancient Mediterranean world with a view toward understanding what most slaves experienced, and especially fugitive slaves. Roman law of slavery is also discussed, as well as the estimated travel times and cost of Onesimus’ journey (whether from Colossae to Rome, Caesarea Maritima, or Ephesus). There are many factors that are problematic for the Amicus Domini theory, e.g. the duration of Onesimus’ journey, the financial cost to Philemon, and the fact that the documents typically used to support the Amicus Domini theory (Pliny’s letters to Sabinianus and the writings of Roman jurists) do not comport with the data in Phlm. This dissertation offers a modified theory for Onesimus’ predicament: Amicus Domini Ex Post Facto. Onesimus did not leave Philemon intending to seek out Paul and reconcile with Philemon, but he eventually decided to seek help long after the fact. This historical reconstruction makes better sense of the evidence, and provides a clearer view of what Onesimus faced during his flight.