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Mission Critical ESG and the Scope of Director Oversight Duties
Get PDFCorporations are facing increased scrutiny over how they treat their stakeholders and society at large. Failing to address key environmental, social, and governance (ESG) concerns may generate significant blowback, making it harder for corporations to attract talent, access capital, and sell products. ESG concerns have thus become a major source of reputational and financial risk for companies and their shareholders. One way for shareholders to hold managers personally accountable for being inattentive to critical ESG risks is by filing a derivative action on behalf of the company, claiming that managers breached their oversight duties (Caremark duties). Until recently, corporate legal scholars have dismissed this possibility, reasoning that oversight duties are generally unenforceable. That reasoning is no longer valid. In the past two years, Delaware courts have revamped their Caremark framework. The courts are now increasingly willing to apply heightened scrutiny to directors’ efforts, and increasingly willing to grant shareholders access to internal company documents in order to investigate failure-of-oversight claims. There can no longer be any question about Caremark’s relevance, but there remains a question about Caremark’s scope. Would the courts be as willing to apply heightened scrutiny and provide access to pre-suit discovery when the case concerns nonlegal risks? In other words, do directors face personal liability for how their companies treat the environment, diversity, and privacy, even when such behaviors are not punishable by law?
This Article examines the evolving scope of director oversight duties and makes three contributions. First, the Article synthesizes the caselaw to clarify that the relevant question when determining Caremark’s scope is not whether a risk is “legal” or “reputational,” but rather whether the risk is “critical” to the company’s success. The Article’s second contribution is to build an analytical framework for distinguishing between ESG risks that are critical (and thus subject to a realistic Caremark liability threat) and those that are not. The Article then applies the framework to concrete ESG concerns, such as cybersecurity, climate change, and sexual misconduct. Finally, the Article evaluates the social desirability of extending Caremark to oversight of nonlegal risks. The key disadvantage of doing so is that it increases the costs of judicial hindsight bias, while the key advantage is that it counterbalances the flaws of other ESG enforcement mechanisms. The Article concludes that courts should adopt a more judiciable approach when scrutinizing board oversight of nonlegal risks
Corporate Resiliency and Relevancy in the Private Ordering Era
Get PDFFirm-specific private ordering has flourished in the twenty-first century. Public companies are seeing more and more governance contracting in traditional venues such as the bylaws and charter, as well as in less conventional places like shareholder agreements and dual-class-like contracts. Decisions legitimizing private ordering in the corporate setting contain strong contractarian language and rely heavily on contract—and not corporate—principles to justify their holdings. In addition, recent statutory amendments have chipped away at traditionally mandatory features of the corporation, thereby reinforcing the contractual view of the corporate form and fueling the private ordering movement. All told, the current trajectory of corporate law appears to privilege freedom of contract and the contractarian theory above other principles and theories of the firm.
Noticeably absent from recent corporate jurisprudence, however, is any meaningful discussion of the rationale for, and consequences of, intertwining contract and corporate law in such an intimate way. Engaging in this discussion is critical, as the expansion of corporate contractual freedom and the corresponding judicial embrace of contractarian principals have important implications for corporate law and the role of the corporation in the business entity ecosystem. This Article discusses some of the impacts to the corporate form, corporate theory, and the corporation’s role in society resulting from the prioritization of contractual freedom
English: An “Epistolary” Poem on a Major Muslim Military Defeat during the Mediterranean Campaigns of AH 28–35/649–56 CE
No full textBased on the Armenian chronicle attributed to Sebēos, some scholars have argued for a large, failed Muslim expedition against Constantinople in or around 654 CE during ʿUthmān’s caliphate and Muʿāwiya’s governorship of Syria. Others seem to ignore the possibility, especially since there is no reference to such a siege in Arabic-language sources beyond perhaps one sentence in the history of Khalīfa b. al-Khayyāṭ. The poet Abū al-ʿIyāl al-Hudhalī, active in Egypt during the reigns of ʿUmar and ʿUthmān, provides a third possible source for this event in his description of a major Muslim military defeat against the Byzantines. Julius Wellhausen, in an overlooked article, noticed the historical significance of the poem but misdated it to the 660s. This essay redates the poem to the early to mid-650s and suggests that it refers to an early failed assault on Constantinople. It further argues that although the event is virtually ignored by the Arabic-language sources, it can help explain the Egyptian military’s hostility to ʿUthmān, which culminated in his assassination
Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context
Get PDFIn two paragraphs at the beginning of Dobbs v. Jackson Women’s Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi’s abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief’s arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.
Equality challenges to abortion bans preceded Roe, and will continue in courts and politics long after Dobbs v. Jackson Women’s Health Organization. In this Article we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after fifteen weeks violates the Fourteenth Amendment’s Equal Protection Clause, and show how its equality-based arguments open up crucial conversations that extend far beyond abortion.
Our brief shows how the canonical equal protection cases United States v. Virginia and Nevada Department of Human Resources v. Hibbs extend to the regulation of pregnancy, providing an independent constitutional basis for abortion rights. As we show, abortion bans classify by sex. Equal protection requires the government to justify this discrimination: to explain why it could not employ less restrictive means to achieve its ends, especially when using discriminatory means perpetuates historic forms of group-based harm. Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life; at the same time the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends.
Our brief asks: could the state have pursued these same life- and healthprotective ends with more inclusive, less coercive strategies? This inquiry has ramifications in courts, in legislatures, and in the court of public opinion. Equal protection focuses the inquiry on how gender, race, and class may distort decisions about protecting life and health, within and outside the abortion context. There are many forms of equal protection argument, and this family of arguments can play a role in congressional and executive enforcement of constitutional rights, in the enforcement of equality provisions of state constitutions, and in ongoing debate about the proper shape of family life in our constitutional democracy. Equal protection may also have the power to forge new coalitions as it asks hard questions about the kinds of laws that protect the health and life of future generations and that enable families to flourish
Differences and Similarities: Variability and Fractality in CDST
Get PDFVariability and fractality, two key concepts in Complex Dynamic Systems Theory (CDST)—the former concerning changes and variations, and the latter concerning recursiveness and self-similarities—may seem contradictory at first glance. This forum piece attempts to elucidate how the two seemingly contradictory properties can be reconciled in CDST to examine second language (L2) development. To that end, this piece includes a definition and short epistemological history of each concept, accompanied by a review of some relevant studies. It concludes with two metaphors to illustrate the relationship between variability and fractality, and how the two seemingly irreconcilable ideas can generate a clearer and more panoramic view of L2 development
Simon, Andrew. 2022. Media of The Masses: Cassette Culture in Modern Egypt. Stanford, CA: Stanford University Press.
No full textBlackness at the End of the World: A Theological Ungrounding
No full textThis paper argues that there exists no ontotheological grounds for black life. As such, blackreligion and, by extension, black theology should consider the ways in which black life is life thatis lived ungrounded. The central claim of this paper notes that categories such as the good life,the human, freedom, and citizenship are inadequate to account for the reality of black life amidthe totalizing effects of antiblackness. As such, black theology should position itself to imagineblack theology beyond the confines of the science of faith and other colonial markers of life andhumanity. In essence, this paper seeks to make two theological claims/interventions; first, itquestions the use of the category of the human as a liberatory figure through which the blackcan attain freedom. Second, it throws into crisis the notion of eschatological time and salvationand the inability or difficulty to account for the black who has been rendered simultaneously inand out of time. Ultimately, this paper wants to think with black feminist futurity and Afrofuturistdiscourse as generative tools to imagine black life beyond the confines of antiblackness, if at allpossible
Mentoring the mentor: Developing clinical instructor cross-cultural psychological capital to support culturally/linguistically diverse DPT students
No full textRationale: Cultural and social isolation, microaggressions, and few culturally and linguistically diverse (CLD) mentors contribute to a lack of belonging on clinical education experiences (CEEs) for CLD Doctor of Physical Therapy students. The purpose was to investigate whether a multiple mentor model including a CLD learner, their clinical instructor (CI), and CLD mentor could develop CI cross-cultural psychological capital (CC PsyCap) and mentoring skills to support CLD learners on CEEs.
Methods: Three CLD learners and their CIs were each matched with a CLD mentor. CIs completed online cross-cultural mentor training and met with the CLD student and mentor four times during the 10-week CEE. CIs completed the CC PsyCap survey to measure changes in CI cross-cultural self-efficacy before and after the CEE. Interview data from participants were thematically analyzed.
Results: All CIs demonstrated an increase in CC PsyCap scores over the study period. CIs gained insight into the unique needs of CLD learners, often subjected to bias and discrimination, and developed strategies to proactively support learners. CLD learners faced challenges related to race in the CEE and pressure to assimilate. They valued CLD mentors who role-modeled persistence and success and CIs who celebrated diversity and created a welcoming environment.
Clinical relevance: CIs play an important role in mentoring CLD learners on CEEs. This study highlighted that CI CC PsyCap can be developed through mentoring and coaching from CLD mentors, ultimately increasing support for CLD learners on CEEs