Ann Lipton has a great post on VC Laster's recent decision in United Food & Commercial Workers Union v. Zuckerberg. As she kindly notes, I blogged about that case recently.
Ann uses the case as a launching pad for an extended discussion on "the pathologies associated with the common law." Here's a brief taste:
... the Aronson test conflated the issue of objectivity with respect to bringing a lawsuitwith liability on the underlying claim, and phrased the former in terms of the latter.
As time wore on, that conflation made the Aronson test difficult and confusing to apply ....
And here’s the part that’s interesting to me: Why would the law persist in this obviously maladaptive way? Because, I believe, no litigant had any interest in arguing for a change. At the end of the day, Rales and Aronson are asking the same question, and regardless of which is used, they come out the same way – a point that several Delaware courts have made. Which means neither plaintiff nor defendant had much of an interest in briefing the distinction or arguing the law should be changed, and they didn’t. Without any litigants to press for clarification, Delaware courts allowed this state of affairs to continue and torture corporate law professors and junior associates throughout the land.
It's a great analysis and I recommend popping over to give it a read.
