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.

The Impact of Transit Oriented Development on the Travel Behaviors of Workers in Denver, Colorado

To combat unsustainable transportation systems characterized by reliance on petroleum, polluting emissions, traffic congestion and suburban sprawl, planners encourage mixed use, densely populated areas that provide individuals with opportunities to live, work, eat and shop without necessarily having to drive private automobiles to accommodate their needs. Despite these attempts, the frequency and duration of automobile trips has consistently increased in the United States throughout past decades. While many studies have focused on how residential proximity to transit influences travel behavior, the effect of workplace location has largely been ignored. This paper asks, does working near a TOD influence the travel behaviors of workers differently than workers living near a TOD? We examine the non-work travel behaviors of workers based upon their commuting mode and proximity to TODs. The data came from a 2009 travel behavior survey by the Denver Regional Council of Governments, which contains 8,000 households, 16,000 individuals, and nearly 80,000 trips. We measure sustainable travel behaviors as reduced mileage, reduced number of trips, and increased use of non-automobile transportation. The results of this study indicate that closer proximity of both households and workplaces to TODs decrease levels of car commuting and that non-car commuting leads to more sustainable personal travel behaviors characterized by more trips made with alternative modes.

Psychological Perspectives on the Civil Liberties of Transgendered Inmates in a Prison Setting

As society becomes increasingly less binary, and moves towards a more spectrum based approach to mental illness, medical illness, and personality, it becomes necessary to address this shift within formerly rigid institutions. This paper explores this shift as it is occurring within correctional settings around the United States concerning the medical care, housing, and safety of transgendered inmates. As there is no legal standard for the housing or access to gender-affirming medical care (i.e., hormone therapy, sexual reassignment surgery), these issues are addressed on an institutional level, with very little consistency throughout the country. Currently, most institutions follow a genitalia-based system of classification. Within the system, core beliefs are held, some adaptive and some no longer adaptive, that drive the system's behavior and outcomes. With regard to transgendered inmates, several underlying beliefs within the system serve to maintain the status quo; however, the most basic underpinning is the system's reliance on a binary gender system. As views of humane treatment of the incarcerated expand and modernize, the role of mental health within corrections has also expanded. Psychologists, social workers, counselors, and psychiatrists are found in almost all correctional facilities, and have become a voice of advocacy for an often underserved population.

Shift Work and the United States Female Workforce: The Relationship Between Shift-Work and Ill-Health Effects

The present study was designed to determine the magnitude of the relationship between amount, frequency, and length of shift work completed by female transportation employees and the number, degree, and extent of problems related to physical, menstrual and psychological health including depression. It was hypothesized that workers that are employed in areas such as transportation who are working shift work on a regular basis place themselves at higher risk for developing health or psychosocial related effects. These health related outcomes can have a profound impact on an employee’s job performance, daily functioning, and personal life. The present study sought to understand the potential relationship between working shift work and higher disturbances to the bodies’ natural functioning. The present study has the potential for explaining new ways to decrease the risk factors for those working shift work by contributing to the overall understanding of this multifaceted relationship. This study has many important findings and implications. This study has implications for explaining that the effects of disturbances to the circadian rhythm as a result of certain shift work schedules can result in ill-related health effects. Additionally, this study sought to challenge limitations to current research that has been conducted on the topic as the majority of studies have been performed on men. The overall purpose of the study was to gain a better understanding of the negative effects of shift work on females working within the transportation industry. This study sought to explain the health implications specifically for female workers as fewer studies have been conducted with gender as a main effect in the analysis. The present study suggests that due to the circadian rhythm controlling hormone secretion within the body, disturbances to its natural rhythm can have additional effects on female cycles such as menstruation. Overall, this study offers implications for further research on females working shift work and highlights the continued importance for further exploration into recent developments. These implications have the potential to further our current understanding of the relationship between shift work and ill-health effects, particularly the factors that women face.