Professor Lyman P. Q. Johnson, the Robert O. Bently Professor of Law, had his article, Counter-Narrative In Corporate Law: Saints and Sinners, Apostles and Epistles, 2009 Mich. St. L. Rev. 847 (2009), published in the Michigan State Law Review.
Professor Johnson discusses the bi-vocal nature of corporate law. On the one hand, liberating and amoral statutes permit a master narrative of business persons eagerly pursuing the good life as they see it. The mixture of such lax law and human frailty frequently leads to the unleashing of boundless ambition, vanity, avarice, duplicity, and much mischief. On the other hand, another voice in corporate law occasionally moves into the foreground to interrupt and tell its own story – a counter-narrative demanding a measure of self-restraint – when those who direct or manage company affairs press self-gain (or sloth) to the point of intolerable excess. The tellers of these stories are judges – especially Delaware’s judges – when, sitting in equity, they invoke the discourse of fiduciary duty to confront the dominant story line and reshape how corporate managers may use the vast power conferred by law.
Professor Johnson argues that corporate law permits a master narrative that is highlighted and made legally visible only when challenged by equity’s counter-narrative, with which it is complicit. To do so, he draws on a biblical narrative where the New Testament’s redemptive teachings, for the most part, are conveyed by didactic parables and sermons emphasizing overarching principles and standards, not detailed rules or codes of conduct. Critically, moreover, apostles and epistles were exhorted not to keep the stories to themselves. Rather, they were commissioned to go forth and re-tell the Good News to the whole world. In a parallel way, equity’s co-producing role in corporate law is redemptive, and Delaware’s chancellors frequently preach and teach in parables and sermons. In response to law’s tale of unbridled freedom, they speak of restraint. Moral drama arises from this clash.
Congratulations to Professor Johnson on his publication.
On October 21, third-year law students Micah Jost and Aaron Sims presented their winning law review notes during the annual event recognizing the best student articles produced by Washington and Lee Law Review staff writers.
Jost, winner of the Roy L. Steinheimer Law Review Award, presented “Independent Contractors, Employees, and Entrepreneurialism under the National Labor Relations Act: A Worker-by-Worker Approach.” Jost graduated from Goshen College and is a Senior Articles Editor for Volume 68 of the Law Review.
Jost’s note discusses the often blurry line in labor and employment law between employees, who enjoy a variety of basic legal rights and protections on the job, and independent contractors, whom the law excludes from such coverage. It focuses on the failure of American labor law to recognize that many workers classified as independent contractors deserve the right to organize and collectively bargain with their employers. In particular, it examines a recent case in which the United States Court of Appeals for the District of Columbia Circuit concluded that FedEx Home Delivery drivers were independent contractors lacking the right to join a union under the National Labor Relations Act. Jost critiques the D.C. Circuit’s decision to focus on the drivers’ “entrepreneurial potential,” and argues that a worker-by-worker examination of each individual’s actual exercise of entrepreneurial rights could provide a more reasonable distinction between statutory employees and contractors who are, in some meaningful way, independent.
Sims, winner of the Washington and Lee Law Council Law Review Award, presented “SIGTARP and the Executive-Legislative Clash: Confronting a Bowsher Issue with an Eye toward Preserving the Separation of Powers during Future Crisis Legislation.” Sims graduated from George Wythe University and is a Managing Editor for Volume 68 of the Law Review.
Sims’s note explores the constitutionality of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP), an office created by the Emergency Economic Stabilization Act of 2008. SIGTARP is the government watchdog commissioned to oversee the Treasury Department’s management of the TARP program, a $700 billion economic bailout fund. The statute fashions a relationship in which SIGTARP recommends to Treasury certain actions regarding Treasury’s management of TARP. His note argues that the statute’s language requires Treasury to implement SIGTARP’s recommendations unless they are both unnecessary and inappropriate. It concludes that this dynamic violates the separation of powers. Although the statute lodges in the President the power to remove SIGTARP, Congress retains practically all remaining control over SIGTARP. While Supreme Court precedent stands for the proposition that presidential retention of the removal power neutralizes congressional-presidential separation of powers concerns, the note argues that this precedent is inapplicable to the SIGTARP dynamic because SIGTARP (unlike officers in the Supreme Court’s prior separation of powers cases) wields the power to shape policy and to commandeer the entire executive machine by submitting to Treasury recommendations that must be implemented unless they are both unnecessary and inappropriate. Sims concludes by examining the critical importance of preserving the separation of powers, the central role that the separation of powers plays in America’s unique form of government, and how the people are the primary guardians of the separation of powers.
Congratulations to both Jost and Sims for their impressive work.
In the sixth and final installment of the Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Lawrence Zelenak, the Pamela B. Gann Professor of Law at Duke University School of Law, came to speak on November 1 about his new article and book, Learning to Love the Form 1040: Two Cheers for the Return-Based Mass Income Tax.
In it, Professor Zelenak describes his viewpoint on why filing an income tax return every year is a good idea in general for American citizens. Traditionally, he points out, those who favor large government prefer an accurate withholding system, to make taxes as painless and unnoticed as possible. Conversely, those who favor small government prefer a more visible and painful system so that each penny taken by the government is realized, increasing public awareness of tax policy. Professor Zelenak first states that the combination approach we have currently, with both withholding and annual filing is a great compromise between the two camps.
But he also takes a new spin on this discussion. Professor Zelenak argues that having such a highly visible tax system is good regardless of the small or large government feud. Initially, he points out that every year, come April, the news is awash with articles and information about tax policy and tax figures. These sources help fuel a public discourse regarding tax that may not otherwise exist. Additionally, he compares the act of voting as a representation of one’s political citizenship to the act of paying taxes (or just filing a return, if the individual has no tax liability) as a representation of one’s fiscal citizenship. It helps solidify a sense of belonging and part of the greater good.
Many thanks to Professor Zelenak for coming to speak.