Corporate Director and Officer Liability: "Discretionaries" Not Fiduciaries
Corporate Director and Officer Liability: "Discretionaries" Not Fiduciaries
Radford Chair in Law and Professor of Law
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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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Front Matter
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1
Corporate Directors and Officers Are “Discretionaries”—Not Fiduciaries
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2
Fiduciary Duties in Business Enterprises: A Historical and Contemporary Perspective
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3
The Illusion of Corporate Director and Officer Fiduciary Duty: The Duty of Care, the Business Judgment Rule, and Exculpation Statutes
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4
The Duty of Loyalty: Far More Bark than Bite
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5
Derivative Litigation: Corporate Directors Are “Discretionaries”
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6
Mergers, Acquisitions, and Dispositions: A Semblance of Fiduciary Duty
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7
Close Corporations: The Presence (or Waiver) of Fiduciary Duties
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8
Rhetoric versus Reality: The Federal Securities Laws
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9
Corporate Directors and Officers Are “Discretionaries”: Proposed Standards of Liability
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10
The Clear Reality: “Discretionaries” Not Fiduciaries
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End Matter
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