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.

Local-global processing in early-onset schizophrenia: Evidence for an impairment in shifting the spatial scale of attention

In this study we report the results of two experiments on visual attention conducted with patients with early-onset schizophrenia. These experiments investigated the effect of irrelevant spatial-scale information upon the processing of relevant spatial-scale information, and the ability to shift the spatial scale of attention, across consecutive trials, between different levels of the hierarchical stimulus. Twelve patients with early-onset schizophrenia and matched controls performed local-global tasks under: (1) directed attention conditions with a consistency manipulation and (2) divided-attention conditions. In the directed-attention paradigm, the early-onset patients exhibited the normal patterns of global advantage and interference, and were not unduly affected by the consistency manipulation. Under divided-attention conditions, however, the early-onset patients exhibited a local-processing deficit. The source of this local processing deficit lay in the prolonged reaction time to local targets, when these had been preceded by a global target, but not when preceded by a local target. These findings suggest an impaired ability to shift the spatial scale of attention from a global to a local spatial scale in early-onset schizophrenia. (C) 2003 Elsevier Science (USA). All rights reserved.

Factorizations of and by powers of complete graphs

Let K-k(d) denote the Cartesian product of d copies of the complete graph K-k. We prove necessary and sufficient conditions for the existence of a K-k(r)-factorization of K-pn(s), where p is prime and k > 1, n, r and s are positive integers. (C) 2002 Elsevier Science B.V. All rights reserved.

Climate governance in an international system under conservative hegemony: the role of major powers

In the last five years, climate change has been established as a central civilizational driver of our time. As a result of this development, the most diversified social processes - as well as the fields of science which study them - have had their dynamics altered. In International Relations, this double challenge could be explained as follows: 1) in empirical terms, climate change imposes a deepening of cooperation levels on the international community, considering the global common character of the atmosphere; and 2) to International Relations as a discipline, climate change demands from the scientific community a conceptual review of the categories designed to approach the development of global climate governance. The goal of this article is to discuss in both conceptual and empirical terms the structure of global climate change governance, through an exploratory research, aiming at identifying the key elements that allow understanding its dynamics. To do so, we rely on the concept of climate powers. This discussion is grounded in the following framework: we now live in an international system under conservative hegemony that is unable to properly respond to the problems of interdependence, among which - and mainly -, the climate issue.

Muddle or march: China and the 21st century Concert of Powers

Concert of Powers has emerged as an attractive modality in global governance. As an emerging power, China must seriously take this template into account. This article seeks to analyze the incentives, possibilities, and uncertainties for China to participate in Concert with reference to China's history memory on Concert, China's intellectual endeavors, as well as China's evolving foreign preferences. It concludes that China is generally qualified and capable of being a key participant in Concert of Powers with increasing willingness. Yet, China's involvement depends on 1) if Concert template can overcome its own deficiencies; 2) if Concert have competitive advantages compared with other governance alternatives for China; and 3) if China can keep its momentum on both willingness and capacity in power transition.