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Corporate Director and Officer Liability: "Discretionaries" Not Fiduciaries

Online ISBN:
9780197751534
Print ISBN:
9780197751503
Publisher:
Oxford University Press
Book

Corporate Director and Officer Liability: "Discretionaries" Not Fiduciaries

Marc I Steinberg
Marc I Steinberg

Radford Chair in Law and Professor of Law

Southern Methodist University (SMU)
,
USA
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Published online:
28 April 2025
Published in print:
27 June 2025
Online ISBN:
9780197751534
Print ISBN:
9780197751503
Publisher:
Oxford University Press

Abstract

The principal theme of this book is that corporate directors and officers are not, in actuality, fiduciaries and that the use of this term should be abandoned. As the book highlights, the liability standards that often apply to directors and officers are so lenient that they are devoid of fiduciary status. Accordingly, to continue to identify these individuals as fiduciaries perpetuates a fiction that should be remedied. Rather, a new substantive term should be recognized that accurately and objectively portrays this situation: the corporate director or officer is a “discretionary.” The degree of discretion allowed before liability arises may be strict or expansive depending on the surrounding facts and circumstances. This distinction is important as legal terms and concepts have impact. They are relied upon for what they claim to represent. Directors and officers accordingly should be accurately characterized as “discretionaries.”

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