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Not a Question Was Asked: The Trajectory of Corporate Accountability in Light of Officer Exculpation
Get PDFThis Note examines the implications of the 2022 amendments to Delaware’s General Corporation Law— particularly the changes to Section 102(b)(7), which extends exculpation provisions to corporate officers. Previously limited to directors, these provisions now allow corporations to shield officers from personal liability for breaches of duty of care, albeit in a more constrained manner. The expansion raises questions about its necessity and potential impact on corporate law—with particular focus on the remaining accountability mechanisms available to shareholders. Delving into the evolving dynamics of corporate governance, this Note considers the current topography of corporate law: focusing on the roles and interplay of shareholders, directors, and officers within the corporate structure. It further explores the historical and legal contexts, particularly in Delaware, which have shaped current fiduciary duties and corporate accountability. It raises concerns regarding the implications of exculpation expansion on fiduciary duties, future legislative action, and potential judicial reception, particularly in light of recent shifts in shareholder litigation strategies and rulings. Central to this discussion is the impact of the exculpation amendment on various aspects of corporate governance. For corporate officers, the expansion potentially reduces accountability and alters the power dynamics within corporations. For shareholders, additional exculpation diminishes their ability to hold officers accountable for negligence, impacting their litigation rights and potentially influencing shareholder rights. In addressing these considerations, this Note also analyzes specific cases, including In re McDonald’s Derivative Shareholder Litigation, to illustrate the practical applications of these legal shifts, and In re Brookfield Asset Management, to raise the issue of diminution of available shareholder claims in instances where shareholder claims are needed most. This Note argues that, in light of all of these changes from shifting roles within corporations, recent rulings, and the exculpation amendment, fiduciary duties are in prime position to be scrutinized and shareholders’ accountability options abrogated. Finally, this Note posits that this legislative change, passed without substantial scrutiny or debate, reflects a broader trend in corporate law. It suggests a potential dissonance between the desire to protect officers from frivolous litigation and the need to maintain robust mechanisms for corporate accountability. The analysis concludes that while the exculpation provision aims to balance interests within the corporate legal framework, its long-term effects on corporate accountability remain uncertain and warrant careful observation
Farmland and Forestland in an Era of Climate Change: Hurricane Michael and Opportunities to Advance Rural Resilience
Get PDFCatastrophic disasters fundamentally destabilize and reshape communities. They often cause loss of life and invariably inflict extensive property damage. Disabled individuals, the elderly, chronically ill persons, and families struggling to make ends meet are almost always left more vulnerable. Affected communities frequently experience population loss, a declining property tax base, and economic contraction. Over the last three decades, a string of major disasters has focused scholarly attention on their far-reaching impacts on large cities. Storms and earthquakes have reshaped urban landscapes and forced communities to reckon with their futures from San Francisco to Northridge, Houston to New Orleans, and Miami to the New York metro area. These catastrophes will be studied for years to come. As compelling and iconic as the stories of urban wreckage and recovery have become, they have limitations when applied to the nation’s smaller-sized communities. Urban disaster narratives elide a range of vulnerabilities that expose small cities and towns—and the agricultural industry those communities often support—to the far-reaching costs and harms of natural disasters. Further, commentators and scholars who have focused broadly on the problems facing smaller cities and rural areas have sometimes overlooked the impact of storms, wildfires, or floods on those communities. In short, a significant gap exists in our thinking about rural resilience. The problem is profound, as 97% of the nation’s land mass is considered rural. Drawing on stories and data gathered from northwest Florida and southwest Georgia’s ongoing recovery from Hurricane Michael (2018), this Article examines significant shortcomings in state planning and disaster recovery policies that left smaller rural communities, farmers, and forestland owners fundamentally unprepared for a major disaster. The challenges encountered by rural communities in carrying out long-term disaster recovery highlight critical questions about perils associated with rural futures in an era of climate change and sea level rise. The post-disaster solutions devised by state governments suggest opportunities and obstacles to realizing more sustainable and equitable paths for the 20% of Americans living in rural municipalities and counties. This Article proceeds as follows. Part I provides a general overview of the damage caused by Hurricane Michael’s destructive push through the small towns and less densely populated counties of northwest Florida and southwest Georgia. Part II briefly explores commentary and scholarship covering the challenges associated with responses to major disasters affecting rural communities. Part III examines the heightened vulnerability that rural regions face when disasters threaten the continuing viability of historic land uses and the economies they support. Part IV assesses the role that institutions can play in sustaining rural land uses and does so by considering the institutional obstacles and opportunities that one state navigated to deliver recovery resources to agriculture and silviculture businesses. Part V highlights Hurricane Michael’s anemic housing recovery and suggests ways that states could expand solutions to disaster-related housing loss and thus move more to jumpstart long-term transformative housing recovery
Resilient Forest Management and Climate Change
Get PDFClimate change threatens the very existence of the world’s forests as temperature increases outpace forests’ ability to adapt. Society must implement adaptation policies aimed at making forests more resilient. This Article describes how we can better manage for more resilient forests by first detailing some of the scientific and policy complexity affecting our ability to do so. The Article then details the primary adaptation solutions for creating greater forest resiliency (reducing fire risk and integrating more climate resilient species into forests), some of the impediments to implementing those solutions (federalism, geographic and ecological differences in forests, and scientific unknowns), and how to overcome those impediments (incentivizing market development, increasing government investment, reforming federal administrative law, and harnessing expertise in regional forestry programs to build trust)
Another Round for Petrella v. MGM, Laches, and Raging Bull: Resolving the Circuit Split Over Copyright’s Statute of Limitations
Get PDFThere is a split between the Second Circuit and the Ninth and Eleventh Circuits over the interpretation and application of the Copyright Act’s three-year statute of limitations. The disagreement is about whether it bars a copyright infringement plaintiff from recovering for infringing acts occurring outside the statute’s three-year window. The Second Circuit stated in 2020 in Sohm v. Scholastic that the U.S. Supreme Court explicitly delimited damages to the three years prior to the commencement of an infringement action. However, the Ninth Circuit in Starz Entertainment in 2022 and the Eleventh Circuit Nealy v. Warner Chappell Music in 2023 both held that so long as a plaintiff brings suit within three years of discovering infringing acts, it may seek damages regardless of when those acts occurred. The Supreme Court recently granted certiorari in Nealy v. Warner Chappell Music to resolve the following question:Whether, under the discovery accrual rule applied by the circuit courts and the Copyright Act’s statute of limitations for civil actions, 17 U.S.C. § 507(b), a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit. This circuit split presents an ideal opportunity for the nation’s highest court to resolve an important question concerning how the Copyright Act should be interpreted. The heart of this split is disagreement over how courts should read and apply the U.S. Supreme Court’s 2014 decision in Petrella v. MGM. That decision concerned rights in the award-winning movie Raging Bull, the equitable defense of laches, and how that defense relates to copyright’s statute of limitations.The Second Circuit stated in Sohm that Petrella limits claims to “a three-year lookback period from the time the suit is filed to determine the extent of the relief available.” This means that “a plaintiff’s recovery is limited to damages incurred during the three years prior to filing suit.” In contrast, the Ninth Circuit stated in Starz Entertainment v. MGM Domestic Television that “[n]either the text of the Copyright Act nor Petrella imposes a three-year damages bar in a discovery rule case.” Similarly, the Eleventh Circuit in Warner Chappell Music was unwilling to read Petrella as creating a three-year lookback period or a damages cap. This Article’s thesis is that the U.S. Supreme Court, in resolving this circuit split, should agree with the Second Circuit’s holding in Sohm v. Scholastic that limits the plaintiff’s damages to the three-year lookback period from the time the suit was filed. The Article discusses the Copyright Act’s statute of limitations, actions that trigger the running of this statute of limitations, and the U.S. Supreme Court’s Petrella decision. It then analyzes the Second Circuit’s approach to the underlying issue followed by an analysis of the Ninth and Eleventh Circuit approaches. The Article’s last section concentrates on why the split should be resolved to align with the Sohm decision. This outcome is based on the author’s reading of Petrella, the legislative history of the Copyright Act’s statute of limitations, and statements made by the U.S. Supreme Court and other courts in opinions dealing with similar issues involving damages and statutes of limitations for several different causes of action
Guilty Pleasures: The Copyright and Labor of Reality Television
Get PDFThe Writers Guild of America’s 2023 strike forced audiences to reckon with Hollywood’s labor issues and the powerhouse unions that seek to solve them. Television networks responded with “strike-proof” fall schedules that highlighted a gap in the entertainment industry’s union membership: reality television. This Note examines and questions that gap, focusing on the labor of reality story producers and the important role it plays in creating a copyrightable product. Although copyright doctrine offers story producers little to no protection against exploitation, copyright case law implicitly recognizes story producers as, essentially, writers. This Note uses that case law to argue that story producers and scripted television writers share an overwhelming community of interest and belong in the same collective bargaining unit. Finally, this Note suggests the labor doctrine of accretion as a method for reality story producers to gain membership in the Writers Guild of America
Memorial Fund Established in Honor of David Ralston
Get PDFAnnouncement from Dean Rutledge that the late Georgia Speaker of the House David E. Ralston is being memorialized with a scholarship bearing his name at the University of Georgia School of Law. The fund will provide support for scholarships, summer fellowships or Georgia leaders-in-residence at the School of Law, in honor of Ralston, who died in November 2022 at the age of 68
Billionaire Taxes and the Constitution
Get PDFThe United States now has ten times as many billionaires as it had just a few decades ago. This ever-growing class has sparked congressional interest in “billionaire tax” proposals. These proposals would generally require that billionaires recognize income when their asset values increase, even if they have not sold their assets.
Under existing doctrine, billionaire taxes likely violate the realization requirement embedded in the Sixteenth Amendment of the Constitution. However, this Article argues that existing Sixteenth Amendment doctrine suffers from deep infirmities and theoretical inconsistencies. With the conceptually sound interpretive approach advanced in this Article, a billionaire tax could pass constitutional muster
Title IX at Fifty: Reimagining Institutional Liability Under Karasek\u27s Pre-Assault Theory
Get PDFUnfortunately, sexual misconduct remains a pervasive problem on college campuses throughout the country. While victims of sexual harassment and assault can report these incidents to their university, these institutions often fail to respond adequately. Investigations into the alleged misconduct are often unnecessarily delayed and school officials neglect to inform victims about the status of their cases. Even more troubling, institutions opt to impose informal sanctions on perpetrators without consulting victims. In such instances, students can hold educational institutions accountable for these deficiencies by suing under Title IX. This is easier said than done. Typically, a plaintiff must prove that their university acted with deliberate indifference in responding to their report. To do so, a plaintiff must show that the institution had actual notice of the reported misconduct. Courts often decline to find that the institution had actual notice, even when the school was aware of the perpetrator’s previous misconduct. A new theory of institutional liability from the Ninth Circuit poses a new avenue for plaintiffs suing universities under Title IX. Under the pre-assault theory, a plaintiff argues that their institution maintained a policy of deliberate indifference to sexual misconduct that heightened their risk of victimization. Thus, a plaintiff does not need to show that the school responded with deliberate indifference to a reported instance of sexual misconduct. This Note argues that the pre-assault theory presents a better approach to hold institutions accountable than the more typical post-assault theory of liability. Though not without its flaws, the pre-assault theory should be employed by victims across the country to hold their educational institutions accountable
Silent Sentences: The Procedural Tragedy of the Bureau of Prisons\u27 Sentence Computation Policy
Get PDFThe Bureau of Prisons has systematically lengthened sentences—at times doubling them—for prisoners subject to federal and state sentences for the same conduct. This phenomenon does not stem from any expressed intent on the part of federal or state judges, defense attorneys, the prosecution, or a plea deal. Instead, it arises through silence at a prisoner’s federal sentencing on a key issue: whether the federal sentence is consecutive to or concurrent with a yet-to-beimposed state sentence.
For those facing both a federal sentence and a yet-to-beimposed state sentence for the same conduct, perhaps no other aspect of sentencing has a greater impact. If a federal sentence is to run concurrently with a state sentence, the time a prisoner spends in custody is credited towards both terms of imprisonment. Conversely, if a sentence is set to run consecutively, the service of one sentence hinges on the completion of the other. Years of additional lost liberty hang in the balance. Yet if a federal judge omits a few words at sentencing about the interaction between the federal and yet-tobe-imposed state sentence, the Bureau of Prisons seizes unlimited and unreviewable discretion to make the sentences consecutive.
The scope of this discretion is breathtaking. The Bureau of Prisons can unilaterally add to a term of imprisonment even where the state judge explicitly provides for concurrency, or when the prosecution acknowledges the sentences should run concurrently. Once the error comes to light, neither the prisoner nor the sentencing federal judge have the means to rectify it. Instead, the length of imprisonment is solely left to the administrative halls of the same agency, the Department of Justice, that conducts the prosecution. While this realization has startled and dismayed several courts that encounter the issue, the procedural mechanism for administrative imprisonment and its consequences remain largely unexplored.
This Note documents the procedural tragedy of this sentence computation mechanism and delves into its tangible repercussions for those ensnared within its Kafka-esque framework. Leveraging developments in sentencing law, this Note contends that the inclusion of five simple words to 18 U.S.C. § 3584(a) is all that stands between what can be decades of arbitrary imprisonment and freedom for many. However, in the absence of such reform, this Note concludes with a plea for awareness of the issue among stakeholders in the criminal justice system to avoid this tragic fate