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.

Three Dichotomies in Lawyers’ Ethics (With Particular Attention to the Corporation as Client)

Three usually unexpressed, and too often unnoticed, conceptual dichotomies underlie our perception and understanding of lawyers’ ethics. First, the existence of a special body of professional ethics and professional regulation presupposes some special need or risk. Criminal and civil law are apparently insufficient. Ordinary day-to-day morality and ordinary ethics, likewise, are not considered to be enough. What is the risk entailed by the notion of a profession that is special; who needs protection, and from what? Two quite different possible answers to this question provide the first of the three dichotomies examined in this article: one can understand the risk as primarily to a vulnerable client from a powerful professional; or, to the contrary, from a powerful client-lawyer combination toward vulnerable others. Second, what is the foundational orientation of lawyers? Are lawyers serving primarily their particular clients, and those clients’ preferences, choices and autonomy? Or is the primary allegiance of lawyers to some community or collective goal or interest distinct from the particular goals or interests of the client? The third dichotomy concerns not the substance of therisk, or the primary orientation, but the appropriate means of responding to that risk or that fundamental obligation. Should professional ethics be implemented primarily through rules? Or, should we rely on character and the discretion of lawyers to make a thought out, all things considered, decision? Each of these three presents a fundamental difference in how we perceive and address issues of lawyers’ ethics. Each affects our understanding and analysis on multiple levels, from (1) determining the appropriate or requisite conduct in aparticular situation, to (2) framing a specific rule or approach for a particular category of situations, to (3) more general or abstract theory or policy. A person’s inclinations in regard to the dichotomies affects the conclusions that person will reach on each of those levels of analysis, yet those inclinations and assumptions are frequently unexamined and unarticulated. One’s position on each of the dichotomies tends to structure the approach and outcome without the issues and choice having been explicitly addressed or possibly even noticed. This article is an effort to ameliorate that problem. Part I addresses the question of what is the risk in the work of lawyers, or the function of lawyers, for which professional ethics is the answer. The concluding section focuses on the particular problem of the corporation as client. Part II then asks the related and possibly consequent question of what is the foundational orientation or allegiance of the lawyer? Is it to the individual client? Or is it to some larger community interest? Again, the concluding section focuses on thecorporation. Part III turns to the means or method for addressing the obligations and possible problems of the professional ethics of lawyers. Should lawyers’ ethics guide and confine the conduct of lawyers primarily through rules? Or should it function primarily through reliance on the knowledge, judgment and character of lawyers? If the latter were the guide, ethical decisions would be made on a situation by situation basis under the discretion of each lawyer. Toward the end of each discussion possibilities for bridging the dichotomy are considered (and with such bridges each dichotomy may come to look more like a spectrum or continuum.). At several points after its introduction in Parts I and II, the special problem of the corporation as client is revisited and possible solutions suggested. Illustrating the usefulness of keeping the dichotomies in view, Part IV applies them to several exemplary situations of ethical difficulty in actual lawyer practice. For readers finding it difficult to envision the consequences of these distinctions, turning ahead to Part IV may be useful in making the discussion more concrete. Some commonalities across the dichotomies and connections among them are then developed in the concluding section, Part V.

How Competition Over Limited Natural Resources Impacts the Formation of Culture

This project analyzes the closely linked connection between the competition over limited resources and the formation of culture as it pertains to art and literature. The project is broken into three main topics: the influence of limited resources on competition, the role that competition and other factors have on the formation of culture, and finally how art and literature are reflective of resources, the competition for those resources, and other historical influences. This paper concludes that while there are many factors in the creation of cultures, competition over limited natural resources plays the most integral role in the formation of culture.

Efficient sampling of band-limited signals from sine wave crossings

This correspondence presents an efficient method for reconstructing a band-limited signal in the discrete domain from its crossings with a sine wave. The method makes it possible to design A/D converters that only deliver the crossing timings, which are then used to interpolate the input signal at arbitrary instants. Potentially, it may allow for reductions in power consumption and complexity in these converters. The reconstruction in the discrete domain is based on a recently-proposed modification of the Lagrange interpolator, which is readily implementable with linear complexity and efficiently, given that it re-uses known schemes for variable fractional-delay (VFD) filters. As a spin-off, the method allows one to perform spectral analysis from sine wave crossings with the complexity of the FFT. Finally, the results in the correspondence are validated in several numerical examples.

Estimation of Time-Limited Channel Spectra From Nonuniform Samples

This paper deals with the estimation of a time-invariant channel spectrum from its own nonuniform samples, assuming there is a bound on the channel’s delay spread. Except for this last assumption, this is the basic estimation problem in systems providing channel spectral samples. However, as shown in the paper, the delay spread bound leads us to view the spectrum as a band-limited signal, rather than the Fourier transform of a tapped delay line (TDL). Using this alternative model, a linear estimator is presented that approximately minimizes the expected root-mean-square (RMS) error for a deterministic channel. Its main advantage over the TDL is that it takes into account the spectrum’s smoothness (time width), thus providing a performance improvement. The proposed estimator is compared numerically with the maximum likelihood (ML) estimator based on a TDL model in pilot-assisted channel estimation (PACE) for OFDM.

Difusión de contenido obsceno dentro del Horario de Protección al Menor en el Perú: Análisis del reality show Esto es Guerra

En el presente artículo se analiza el contenido que difunde Esto es Guerra, el reality show peruano con alto índice de preferencia en la audiencia infantil durante el 2014, acusado de transmitir escenas con contenido sexual. El objetivo de esta investigación es determinar si existen rastros de material obsceno en este bloque televisivo y si este transgrede el Horario de Protección al Menor, reconocido en el marco legal peruano. Su justificación se enmarca en la escasez de estudios que se han realizado sobre realities en el Perú, los constantes pedidos de la sociedad para que este programa deje de transmitirse y las sanciones que ha recibido de parte de organismos estatales. La metodología empleada se basa en un análisis de contenido de la séptima temporada de Esto es Guerra, en el que se tendrán en cuenta los mensajes que transmiten los conductores y participantes a través de su comportamiento. La investigación determinó que el reality show de competencia presenta segmentos que podrían ser considerados como obscenos, aunque su duración es muy limitada y no representativa en relación a todo el programa.

Note from William Croswell to President Kirkland and the Corporation of Harvard College, 1817-1821

This folder contains six documents: three drafts of a brief March 10, 1817, note to Harvard President John Kirkland, with two of the drafts followed by an October 25, 1819, note to the Harvard College Corporation concerning Croswell's work on Harvard's Library Catalogue.

Letters to the Corporation of Harvard College, 1819-1829

Paper notebook containing copies of letters sent by Croswell to the Harvard Corporation in relation to his work on the Harvard Library Catalogue.

Memorials to the Harvard Corporation, 1819 October-1821 June

Six documents containing drafts and copies of eleven letters.

Memorial to the Harvard Corporation, 1821 November

Three drafts of a letter.

Memorial to the Harvard Corporation, 1824 March 31

Two drafts of a letter.

Memorial to the Harvard Corporation, 1824 June 24

One draft of a letter.

Memorial to the Harvard Corporation, 1824 November 10

Three drafts of a letter.

Memorial to the Harvard Corporation, 1825 April 30

Two drafts of a letter.

Memorial to the Harvard Corporation, 1825 December 12

One draft of a letter.