A balanced analysis.
For dinner tonight I made a quasi-homemade lamb and lentil stew. After browning 4 lamb shoulder chops in my All-Clad 3-Quart Saute Pan with Lid, I used the same pan to braise the chops in a cheap red wine with a bay leaf, some shallot and garlic, a dozen peppercorns, and a couple of sprigs of rosemary. After about 2 hours, they were very tender. I let the chops cool until I could pull the meat into shreds, while defatting the braising liquid.
I then fried two ounces of pancetta in a teaspoon of olive oil in my All-Clad 3-Quart Saucier Pan with Lid. I briefly sautéed sone shallots and garlic in the same pan and then added 1 drained 14.5 ounce can of Muir Fire Roasted Tomatoes to the pan. I then added one 14.5 ounce can of Amy's vegetarian lentil soup to the pan, along with some frozen chopped spinach and some finely chopped frozen green beans to the mix. I added the lamb and let the soup simmer for 10 minutes. It was a little dry at this point so I added some of the defatted braising liquid to loosen it up.
I served one of my all-time favorite wines, a 1986 Chateau Meyney (last noted in 2011). I required decanting, both to get it off the heavy sediment and to let the wine aerate. At first, there was a rather funky aroma but it blew off with some time to breathe. Classic bouquet and flavor associations included prunes, cedar, leather, tobacco, and earth. It probably can go another 5 years. One bottle left: When to drink it? Grade: A
As Ian Millhiser illustrates in his trenchant, persuasive, and profoundly dispiriting book Injustices, the Supreme Court has consistently and unapologetically used its authority to thwart progress and perpetuate inequality. The child labor disaster is, if you can believe it, one of the less appalling stories in the book. For as long as the court has held the power to strike down laws—a power it created—its justices have used this authority to impose their own antiquated, antidemocratic ideas on the country at large. Millhiser repeatedly ponders why the court has so persistently hindered self-rule and social progress. The better question to ask about the court, however, is a more basic one: Why do we still put up with it?
I suppose it would be bootless to remind Slate and its readers that not so long ago the shoe was on the other foot:
Brian Quinn notes that:
A nice little retrospective in the Delaware Law Weekly on Chief Justice Leo Strine's first year as chief:
Strine became Delaware's eighth Supreme Court chief justice on Feb. 28, 2014. Since then, he has issued more than 100 opinions and orders, welcomed three new justices to the court, formed a committee to overhaul problem-solving courts, and started a commission for access to justice.
In addition, by my count, he's posted 10 new articles to SSRN.com in the last year. I am reminded of the story line from Calvin & Hobbes when Calvin cloned himself. Strain must be cloning himself to maintain this amazing level of productivity.
At campuses across the country, traditional ideals of freedom of expression and the right to dissent have been deeply compromised or even abandoned as college and university faculties and administrators have capitulated to demands for language and even thought policing. Academic freedom, once understood to be vitally necessary to the truth-seeking mission of institutions of higher learning, has been pushed to the back of the bus in an age of "trigger warnings," "micro-aggressions," mandatory sensitivity training, and grievance politics. It was therefore refreshing that the University of Chicago, one of the academic world's most eminent and highly respected institutions, in the face of all this issued a report ringingly reaffirming the most robust conception of academic freedom. The question was whether other institutions would follow suit.
Yesterday, the Princeton faculty, led by the distinguished mathematician Sergiu Klainerman, who grew up under communist oppression in Romania and knows a thing or two about the importance of freedom of expression, formally adopted the principles of the University of Chicago report. They are now the official policy of Princeton University. I am immensely grateful to Professor Klainerman for his leadership, and I am proud of my colleagues, the vast majority of whom voted in support of his motion.
I wish UCLA was so enlightened.
The U.S. Court of Appeals for the Third Circuit will hear oral argument in Philadelphia tomorrow, April 8, in a closely watched case that will determine when individual corporate shareholders can force a corporation to include shareholder proposals in its annual proxy statement. ...
In this case, an activist shareholder sought to include a proposal in Wal-Mart’s proxy materials that would, if adopted, compel the board’s governance committee to review the company’s policies concerning the sale of potentially dangerous or offensive products. WLF argues that the “ordinary business” exception permits exclusion of proposals about the nature of the products the company sells.
The WLF's position has to be correct. If the court goes the other way, the ordinary business exception will have been completely eviscerated. Shareholders will be empowered to micro-manage basic business decisions.
As a percentage of operating costs, profits are often miniscule. Yet they play an outsized moral role in the creation and distribution of goods and services. “Profits motivate people to work hard for themselves and to make life bette for others,” says economist Walter Williams.
John Carney notes that regulators are increasingly pushing a different model of corporate governance on banks than applies to other corporations:
The duty of corporate boards to represent the interests of shareholders above all others has long been the fundamental norm in the U.S. That is changing at the biggest U.S. banks, The Wall Street Journal reported last week.
Increasingly, regulators are pushing boards to put other objectives ahead of shareholder wealth. At worst, this means directors will have less time to focus on issues directly aimed at maximizing shareholder returns. The result: a possible drag on big-bank stocks and another reason some may have to consider whether their size and business model makes sense.
The traditional duty of directors was famously articulated by the Michigan Supreme Court that reined in Henry Ford’s attempts to change Ford Motor’s policies to benefit the public, workers and its customers. “A business corporation is organized and carried on primarily for the profit of the stockholders. The powers of the directors are to be employed for that end,” the court said in its decision. ...
The changing role of big-bank boards was flagged last year in a speech by Federal ReserveGovernor Daniel Tarullo, the institution’s regulatory point person. In this, he said corporate governance would need to change to broaden the scope of boards’ fiduciary duties to reflect macroprudential regulatory objectives. While Mr. Tarullo stopped short of directly advocating this change, the Fed’s recent actions suggest it is moving in this direction.
I can see a case for the proposition that banks are different. But I think I'll ruminate on that for a while.
The article is here. BNA gets all snippy if I quote from their articles, so I'll simply quote from the email I sent their reporter and from which he borrowed. The reporter's questions are indented and in blue. My answers are not indebted and in the ordinary font.
Do fee-shifting bylaws and charter have the effect of immunizing corporations and directors from shareholder suits?
What effect do you believe the Delaware State Bar’s recent proposal regarding fee-shifting will have? Could some of the other proposals (forum selection and appraisal arbitrage) prevent abusive litigation?
Just to remind you I'm still an unreconstructed Burkean. These days, however, that side mostly expresses itself on twitter:
Iran’s Negotiating Triumph Over Obama and America http://t.co/sJfGnNUsUj Obama's legacy will be a much more dangerous world— Stephen Bainbridge (@ProfBainbridge) April 4, 2015
The Campus Climate Crusade http://t.co/bqA4Rb28W4 The purge continues.— Stephen Bainbridge (@ProfBainbridge) April 4, 2015
Liberal Intolerance, Round II http://t.co/C8ZYhQCXnf To stamp out cultural dissent, the left is willing to stomp on religious liberty— Stephen Bainbridge (@ProfBainbridge) April 4, 2015
With my inherent cynicism and tendency to view legislation through an almost exclusively interest group analysis, I was surprised (but pleased) to see a Delaware lawyer stand up and be counted by identifying many of the key flaws in the bill proposed by the Delaware bar to ban fee shifting bylaw and charter provisions. Good for John Reed.
Peter Ladig reports:
Chancellor Bouchard who issued his opinion in Strougo v. Hollander, C.A. No. 9770-CB (Del. Ch.) on March 16, 2015 ... addressed plaintiff’s motion for partial judgment on the pleadings that a fee-shifting bylaw adopted after the challenged transaction did not apply to him. The Court found that the fee-shifting bylaw did not apply to the plaintiff in this case, and in reaching this conclusion, made some interesting comments that will undoubtedly further the debate over the proposed legislation to eliminate fee-shifting bylaws and regulate forum selection bylaws. ...
The Court then stated:
As a practical matter, therefore, applying the Bylaw in this case would have the effect of immunizing the Reverse Stock Split from judicial review because, in my view, no rational stockholder – and no rational plaintiff’s lawyer – would risk having to pay the Defendants’ uncapped attorneys’ fees to vindicate the rights of the Company’s minority stockholders, even though the Reverse Stock Split appears to be precisely the type of transaction that should be subject to Delaware’s most exacting standard of review to protect against fiduciary misconduct. This reality demonstrates the serious policy questions implicated by fee-shifting bylaws in general, including whether it would be statutorily permissible and/or equitable to adopt bylaws that functionally deprive stockholders of an important right: the right to sue to vindicate their interests as stockholders.
Notwithstanding this stinging language, the Court found that it did not need to reach those issues, because the motion before it focused solely on the timing of the adoption of the bylaw.
With a proposal to ban fee shifting bylaws pending before the Delaware legislature, it is hard to see this unnecessary dicta as anything but a judicial intervention in the political process designed to give ammunition to the opponents of fee shifting provisions. Of course, it's not terribly surprising that a trial judge would intervene in a debate that could effect Delaware lawyer incomes and do so in a way that helps protect those incomes, but it's still disturbing.
For my argument that banning fee shifting bylaws is classic interest group legislation intended to protect the incomes of lawyers rather than to benefit society, see:
Nov 18, 2014 ... (2) What's in the best interest of the key interest group that would be affected by fee shifting bylaws? As we'll see, I think those questions have ...
For my argument that allowing fee shifting bylaws is the correct public policy outcome, see:
Nov 17, 2014 ... I had been planning on writing a law review article on fee shifting bylaws, but I suspect that events will overtake the inevitably lengthy ...