Introduction
RETHINKING THE BOARD’S DUTY TO MONITOR: A CRITICAL ASSESSMENT OF THE DELAWARE
Eric J. Pan
The duty to monitor sits at the crossroads between the two fundamental fiduciary duties of corporations law: the duty of care and the duty of loyalty. Much of corporations law focuses on what directors should do when they make decisions for the corporation. The duty of care tells them to act with “the care of an ordinarily prudent person in the same or similar circumstances.” The duty of loyalty tells them to “exercise [their] institutional power . . . in a good-faith effort to advance the interests of the company.” Both duties tell directors to protect the interests of the corporation.
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HARMING BUSINESS CLIENTS WITH ZEALOUS ADVOCACY: RETHINKING THE ATTORNEY ADVISOR’S TOUCHSTONE
Paula Schaeffer
Convicted attorney Joseph Collins’ client is an empty shell today. Collins and his law firm helped Refco, Inc.’s executives conceal hundreds of millions of dollars in uncollectable debt.3 Without the staggering debt on its books, the client was able to satisfy its lenders and raise millions of dollars from investors.4 But only weeks after Refco’s initial public offering, the company announced discovery of the hidden debt and admitted that its financial statements could not be relied upon. Within a week of that announcement, the company filed for bankruptcy.
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WELFARE VERSUS AUTONOMY IN HUMAN SUBJECTS RESEARCH
Mark S. Stein, Julian Savulescu
Autonomy is commonly seen as a fundamental value that should guide the federal regulation of human subjects research. In this Article, we argue that autonomy is compromised, and should be compromised, for the sake of the welfare of research subjects and the welfare of people who stand to benefit from medical research. Such a compromise of autonomy is evident in regulatory exceptions to the requirement of informed consent, including the exceptions for emergency research and minimal-risk research. Less obviously, the blind clinical trial inherently represents a compromise of autonomy, as subjects are offered medical treatment on the condition that they give up (1) the right to know what treatment they are receiving, and (2) the right to participate in decisionmaking about their treatment. While such an offer of treatment conditioned on a waiver of informed-consent rights does not contravene the libertarian conception of autonomy, it does contravene the liberal conception of autonomy that is now dominant in bioethics. Autonomy is also compromised, on both the liberal and libertarian accounts, when access to experimental drugs is limited in order to channel people who are seeking those drugs into clinical trials.
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SHOTGUNS,WEDDINGS, AND LUNCH COUNTERS: WHY CULTURAL FRAMES MATTER TO CONSTITUTIONAL LAW
Anders Walker
Drawing from social movement theory, this Article shows that both the constitutional challenge to gun bans in Illinois and the constitutional challenge to California’s same-sex marriage ban have dealt with issues of frame alignment similar to those confronted by the civil rights movement in the 1960s. Yet, it is the Second Amendment litigation, ironically, that has most closely followed the movement’s attention to aligning legal claims with cultural trends. Out of this analysis emerges a larger claim that the analytics of frame alignment, and social movement theory generally, deserve more attention by constitutional scholars, both as a uniform analytic for comparing divergent reform agendas, and for better understanding the central role of cultural frames in determining the parameters of constitutional rights.
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SWIFT BOAT CAPTAINS OF INDUSTRY FOR TRUTH: CITIZENS UNITED AND THE ILLOGIC OF THE NATURAL PERSON THEORY OF CORPORATE PERSONHOOD
Matthew J. Allman
In the 2004 presidential election, a group known as Swift Boat Veterans for Truth released a series of television advertisements calling into question the military service of Democratic candidate John Kerry. These advertisements disputed the honesty and patriotism of Senator Kerry and even challenged the legitimacy of the medals he earned during his service in the Vietnam War. The claims made in these advertisements were eventually exposed to be false or misleading, and they were criticized by Democratic and Republican leadership alike. Indeed, this attack on Senator Kerry’s patriotism is one of the most reviled examples of dishonest partisanship in the modern electoral era. Nonetheless, the Swift Boat advertisements are widely thought to have affected the outcome of the election.
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A NEW ROLE FOR TORTIOUS INTERFERENCE IN THE DIGITAL AGE: A MODEL TO ENFORCE END USER LICENSE AGREEMENTS
Jessica Gallegos
This Note examines tortious interference, provides an overview of its controversial history and scholarly critiques, and evaluates new uses for tortious interference in the digital age. Through an overview of recent case law from the unlikely field of copyright law, this Note uncovers a new phenomenon in the law: parties to copyright litigation are using tortious interference as a model to enforce end user license agreements. This is both genius and problematic. It is genius on the part of those bringing breach of end user license agreement claims because tortious interference grants companies a remedy at law when third parties induce end users to breach their end user agreement. In the digital age, it provides a solution to companies faced with a reluctance to endure enormous litigation costs and public relations nightmares that accompany direct suits against potentially thousands of end user consumers of their products.1 However, the solution of tortious interference is also problematic in the digital age: it creates an incentive for companies to write end user agreements without ever intending to enforce the terms against the end users themselves. Instead, these companies intend to enforce the terms against their competition. This is extremely questionable because it usurps the underlying philosophies of both tortious interference and contract law. Ultimately, this Note suggests that tortious interference should be affirmed as a new model to enforce end user license agreements. However, this Note also suggests limiting this new model’s negative implications with a burden-shifting misuse doctrine, which preserves the heroic attributes of tortious interference and limits it to protect the integrity of contract law.
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CAT’S PAW CASES: THE STANDARD FOR ASSESSING SUBORDINATE BIAS LIABILITY
Sara Atherton Mason
There is no doubt that discrimination is still deeply rooted in our society. Although discrimination in any form is despicable, discrimination in the workplace has potentially negative ramifications on a person’s career, job performance, and ability to earn a living.
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