Washington and Lee law professor Christopher Bruner has published an article titled “Is the Corporate Director’s Duty of Care a ‘Fiduciary’ Duty? Does It Matter?” in the Wake Forest Law Review. From the abstract:
While reference to “fiduciary duties” (plural) is routinely employed in the United States as a convenient short-hand for a corporate director’s duties of care and loyalty, other common-law countries generally treat loyalty as the sole “fiduciary duty.” This contrast prompts some important questions about the doctrinal structure for duty of care analysis adopted in Delaware, the principal jurisdiction of incorporation for U.S. public companies. Specifically, has the evolution of Delaware’s convoluted and problematic framework for evaluating disinterested board conduct been facilitated by styling care a “fiduciary” duty? If so, then how should Delaware lawmakers and judges respond moving forward?
In this Essay I argue that styling care a “fiduciary” duty has impacted Delaware’s duty of care analysis in ways that are not uniformly positive. Historically, loyalty has been aggressively enforced, while care has hardly been enforced at all – the former approach aiming to deter conflicts of interest through probing analysis of “entire fairness,” while the latter aims to promote entrepreneurial risk-taking through a hands-off judicial posture embodied in the business judgment rule. Conflation of these differing concepts as “fiduciary duties,” however, has facilitated a tendency toward over-enforcement of care, periodically threatening to impair entrepreneurial risk-taking until arrested by a countervailing legislative or judicial response. Additionally, their conflation threatens to erode the duty of loyalty by fueling the contractarian argument that the sole utility of such “fiduciary duties” is to fill contractual gaps, and that corporations therefore ought to possess latitude to “opt out” of loyalty to the degree already permitted with respect to care.
Prof. Bruner’s new article is available for download from SSRN. In addition, Prof. Bruner has also published a book review of Directors’ Duties and Shareholder Litigation in the Wake of the Financial Crisis by Joan Loughrey (ed). The review appears in the Cambridge Law Journal and is available for download for the journal’s website.
Professor Mark A. Drumbl, the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute, recently had his review of Judith Armatta’s book, Twilight of Impunity: The War Crimes Trial of Slobodan Milosevic published in the Law & Politics Book Review, 21 Law & Pol. Book Rev. 177 (2011).
The book, Twilight of Impunity, chronicles the prosecution of Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia (ICTY). Milosevic was elected President of Serbia in 1989, President of the Republic of Serbia in 1990, and then President of the Federal Republic of Yugoslavia in 1997. In 2001, he was arrested. At the ICTY, Milosevic faced 66 charges involving genocide, crimes against humanity, and war crimes arising from nearly a decade of bloodbath in Kosova, Croatia, and Bosnia.
Milosevic’s trial ended on March 11, 2006. The process came to a close without conviction or sentence. Law did not draw the final curtain. The trial’s end came by way of death – Milosevic’s own – in his jail cell after four years’ of proceedings. In this regard, Milosevic cheated the very verdict his concerted dilatory antics had sought to postpone indefinitely.
Judith Armatta, a human rights lawyer and journalist, spent many days over nearly three years attending at Milosevic’s trial in The Hague. Twilight of Impunity emerges as the ensuing work product. Although she modestly claims that Twilight of Impunity is “not the definitive trial record,” Professor Drumbl claims that it serves as the definitive book about the trial.
Prof. Drumbl states that fundamentally, her book about the trial – from front cover imagery through to text – is much more about him than it is about the tens of thousands of victims. She favors subject over composition. Hence, the trial story becomes his story. Some exception arise, he says, such as Armatta’s beautiful treatment of the pugnacity of witness K-31 in cross-examination by Milosevic. Still, the book remains about getting Milosevic and the herculean efforts international lawyers undertook to get him.
Professor Drumbl regards the book with praise, saying that “Armatta’s encyclopedic compendium is impeccably researched, meticulous, detailed, prudent, and careful. It distinguishes itself as a must-read.”
The full review may be found here.
Congratulations to Professor Drumbl.
In the upcoming edition of the Jurimetrics Journal, Professor Joshua A. T. Fairfield, the Director of the Frances Lewis Law Center, will have his review of Rutger’s Professor Greg Lastowka’s Virtual Justice published.
Professor Fairfield notes that Lastowka’s book is not just an introduction to virtual worlds and the rules that govern them. Instead, it is more of a study on the “process by which law emerges from the interaction of community and technology at the bleeding edge of cyberspace.” He argues that the book demonstrates that virtual worlds are participating in the generation of common law. Professor Fairfield finishes the review with these words:
It is often the goal of legal scholars to write the definitive work on the subject; the last word. Lastowka has succeeded in doing even better – he has written the first word. With humor, exhaustive research, and precise, moderated analysis, he has written a foundational text that necessarily must undergird all that will certainly follow. As he set out to do, lastowka has not finished the debate. Rather, he has crafter a solid foundation on which the field can now build.
Congratulations to Professor Fairfield for getting his review published.