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.

New York laws affecting business corporations, containing the Business corporations law, General corporation law, Stock corporation law, applying provisions of the Tax law, including the Stock transfer tax act, and the Uniform stock transfer act and a synoptic analysis. Revised to May 10, 1924.

Mode of access: Internet.

The statutory and case law applicable to private companies, with special reference to the General corporation act of New Jersey and corporation precedents applicable to corporations generally.

Mode of access: Internet.

A general mass law for broadband energy harvesting

It is well known that the power absorbed by a linear oscillator when excited by white noise base acceleration depends only on the mass of the oscillator and the spectral density of the base motion. This places an upper bound on the energy that can be harvested from a linear oscillator under broadband excitation, regardless of the stiffness of the system or the damping factor. It is shown here that the same result applies to any multi-degree-of-freedom nonlinear system that is subjected to white noise base acceleration: for a given spectral density of base motion the total power absorbed is proportional to the total mass of the system. The only restriction to this result is that the internal forces are assumed to be a function of the instantaneous value of the state vector. The result is derived analytically by several different approaches, and numerical results are presented for an example two-degree-of-freedom-system with various combinations of linear and nonlinear damping and stiffness. © 2013 The Author.

Dielectric response of graded composites having general power-law-graded cylindrical inclusions

The dielectric response of graded composites having general power-law-graded cylindrical inclusions under a uniform applied electric field is investigated. The dielectric profile of the cylindrical inclusions is modeled by the equation epsilon(i)(r)=c(b+r)(k) (where r is the radius of the cylindrical inclusions and c, b and k are parameters). Analytical solutions for the local electrical potentials are derived in terms of hypergeometric functions and the effective dielectric response of the graded composites is predicted in the dilute limit. Moreover, for a simple power-law dielectric profile epsilon(i)(r) = cr(k) and a linear dielectric profile epsilon(i)(r) = c(b + r), analytical expressions of the electrical potentials and the effective dielectric response are derived exactly from our results by taking the limits b -> 0 and k -> 1, respectively. For a higher concentration of inclusions, the effective dielectric response is estimated by an effective-medium approximation. In addition, we have discussed the effective response of graded cylindrical composites with a more complex dielectric profile of inclusion, epsilon(i)(r)=c(b+r)(k)e(beta r). (c) 2005 American Institute of Physics.

Effective dielectric responses of graded composites of the particles with a general power-law gradation profile

The effective dielectric response of graded spherical composites having general power-law gradient inclusions is investigated under a uniform applied electric field, where the dielectric gradation profile of the spherical inclusions is modeled by the equation epsilon(i) (r) = c(b+r)(k). Analytical solutions of the local electrical potentials are derived in terms of hyper-geometric function and the effective dielectric response of the graded composites is predicted in the dilute limit. From our result, the local potentials of graded spherical composites having both simple power-law dielectric profile epsilon(i)(r) = cr(k) and linear dielectric profile epsilon(i) (r) = c(b+r) are derived exactly by taking the limits b --> 0 and k --> 1, respectively. In the dilute limit, our exact result is used to test the validity of differential effective dipole approximation (DEDA) for estimating the effective response of graded spherical composites, and it is shown that the DEDA is in excellent agreement with exact result. (C) 2005 Elsevier B.V. All rights reserved.

ARTICLE: On the Curious Disappearance of Human Servitude from General International Law

The following study considers the fragmentation of law which occurred in 1956 with regard to the law on servitude. As States were unwilling to go as far as the Universal Declaration on Human in establishing that "no one shall be held in [...] servitude", the negotiators of the 1956 Supplementary Conventions moved to expunge the very term 'servitude' from the text and to replace it with the phrase 'institutions and practices similar to slavery' which could then be abolished 'progressively and as soon as possible'. The negotiation history of the 1956 Convention clear demonstrate that the Universal Declaration on Human was the elephant in the room and that it ultimately lead to a fragmentation of the law as between general international law manifest in the 1956 Supplementary Convention on the one hand and international human rights law on the other. It is for this reason that, for instance the 2001 UN and 2005 Council of Europe trafficking conventions mention both 'practices similar to slavery' and 'servitude' as types of human exploitation to be suppressed in their definition of 'trafficking in persons'.

A manual of statutory corporation law : classified corporation laws of all the states, containing a digest of the business corporation laws of every state and territory of the United States, arranged uniformly, with the enactments of 1906 interleaved /

Includes bibliographical references and index.

A manual of New York corporation law, containing the important statutes regulating business incorporations, a digest of these statutes and the principal forms used by corporations operating in the state of New York,

Mode of access: Internet.

A report of the case of the King v. Westwood, with a ... digest of the authorities on the points of corporation law ... discussed ...

The claim of Thomas Westwood to be a burgess of the borough of Chepping Wycombe, tried in the court of King's bench.

Effect of an inservice on the teachers' knowledge of general school law, Section 504, and the Meta Consent Decree

It is generally assumed by educators that inservice training will make a significant difference in teacher knowledge of topics related to education. This investigation addressed that assumption by examining the effects of various factors, e.g., amount and timing of inservice training, upon teacher knowledge of educational law. Of special interest was teacher knowledge of the law as it pertained to ethnic and other characteristics of students in urban school settings. This study was deliberately designed to determine which factors should be later investigated in a more deterministic form, e.g., an experimental design.^ The investigation built upon that of Ogletree (1985), Osborne (1996) and others who focused on the importance of teacher development as a method to enhance professional abilities. The main question addressed in this study was, "How knowledgeable are teachers of school law, especially with regard to general school law, the Meta Consent Decree and Section 504 of the Rehabilitation Act of 1973."^ The study participants (N = 302) were from the Dade County School System, the fourth largest in the U.S. The survey design (approved by the System), specified participants from all levels and types of schools and geographic representations. A survey instrument was created, pilot tested, revised and approved for use by the district official representatives. After administration of the instrument, the resultant data was treated by several appropriate tests, e.g., multivariate analysis of variance (ANOVA).^ Several findings emerged from the analysis of the data: in general, teachers did not have sufficient knowledge of school law; factors, such as amount and level of education, and status and position were positively correlated with increased knowledge; factors such as years of experience, gender, race and ethnicity were not correlated with higher levels of knowledge. The most significant, however, was that when teachers had participated in several inservice training experiences, typically workshops, and, when combined with other factors noted above, their knowledge of school law was significantly higher. Specific recommendations for future studies were made. ^

Corporation laws of Virginia (being an Act concerning corporations, which became a law May 21, 1903; with amendments contained in acts 1904, 1906, and 1908; and other general acts relating to corporations) together with abstracts of the decisions of the courts, and a full collection of forms,

Mode of access: Internet.

Handbook of the law of Mexican commercial corporations, including foreign corporations in Mexico (in English) containing explanations of the system of laws of the republic of Mexico and the law of the contract, management and operations of general corporations organized in Mexico; as well as of foreign corporations operating therein; together with complete forms for use by lawyers and corporate officials,

Mode of access: Internet.

The law of joint stock companies, as altered by the Act of 1862. Including banking, insurance, mining and general companies. With the whole law of winding up. With an appendix of statutes, general rules and forms in Chancery, &c.

Originally published , 1856, under title: The Joint stock companies act, 1856. cf. Brit. mus. Catalogue.