The Texture of Loyalty

This paper examines whether and how reforms in corporate governance structures and practices in the United States may reshape conventional notions of the fiduciary duties owed by independent directors of public companies. The paper identifies two focal points for the evolution of directors\u27 fiduciary duties. First, various reforms in corporate governance assign more specific responsibilities to directors, arguably reorienting directors\u27 loyalty to due discharge of a specified function along with ongoing or residual duties of loyalty owed in more general terms to the corporation and its shareholders. The relationships among these specific duties and more general ones may be complex, as may be the consequences of increased emphasis on work to be done by directors as members of committees in contrast to the board as a whole. Second, reforms in corporate governance imply that a director\u27s duty of loyalty to the corporation and its shareholders requires more than disinterest, narrowly defined. That is, a director\u27s duty is one of fidelity to the interests of the corporation that imposes more than an obligation to refrain from participating in board decisions in which the director has a material financial interest. The paper prefaces discussion of evolution of directors\u27 duties by addressing two more fundamental questions about contemporary corporate governance: what role precisely should be assigned to directors, distinct from a corporation\u27s officers and its other senior executives? And what implications follow for the powers of shareholders? To the extent that directors can reasonably be expected to serve only a relatively formal or vestigial function, an expansion in shareholders\u27 powers may be warranted. Overall, the paper is a study of interrelationships among legal and nonlegal mechanisms that shape expectations for directors\u27 conduct. Although distinct, none operates in a vacuum. Formal structures, definitions, and requirements may shape how directors discharge their responsibilities by focusing directors\u27 attention on their gravity and, by enabling independent directors to function more collegially, facilitating the development of institutions of corporate governance that function independently of senior management. Articulating the content of directors\u27 responsibilities with greater specificity heightens expectations that these responsibilities will be fulfilled. In turn, higher expectations for directors\u27 conduct may serve to legitimate directors\u27 capacity, once elected, to exercise discretion independent of intervention from shareholders

The Fiduciary Character of Agency and the Interpretation of Instructions

This chapter in a forthcoming book justifies the conventional characterization of common-law agency as a fiduciary relationship. An agent serves as the principal’s representative in dealings with third parties and facts about the world, situating the agent as an extension of the principal for legally-salient purposes. A principal’s power to furnish instructions to the agent is the fundamental mechanism through which the principal exercises control over the agent, a requisite for an agency relationship. The agent’s fiduciary duty to the principal provides a benchmark for the agent’s interpretation of those instructions. The chapter draws on philosophical literature on the identity of the self over time to address related characteristics of agency doctrine, including the agent’s duty to interpret instructions and statements of authority in light of the principal’s present wishes as the agent reasonably understands them as well as the principal’s ongoing power to revoke the agent’s authority even when the revocation constitutes a breach of contract

The First Restatement of Agency: What Was the Agenda?

the paper presents the modern communication technology in wireless network, LTE and WiMAX. The system architectures between LTE and WiMAX network will be shown. In addition, a comparison of the system architecture and the air interface of these two networks will be discussed. The paper further concludes with discussion of these two aspects and gives the short look into the future 4G networks.QC 20141110</p

Accessory Disloyalty: Comparative Perspectives on Substantial Assistance to Fiduciary Breach

Culpable participation in a fiduciary\u27s breach of duty is independently wrongful. Much about this contingent form of liability is open to dispute. In the United States, well-established general doctrine defines the elements requisite to establishing accessory liability, which is categorized as a tort and often referred to as aiding-and abetting liability. What\u27s controversial is how the tort applies to particular categories of actors, most recently investment banks that advise boards of target companies in M&A transactions. In the United Kingdom, in contrast, accessory liability in connection with a breach of trust or fiduciary duty is controversial because the law is less clear, at least in part due to significant shifts in doctrine within a relatively short period of time. And equity houses the wrong, not tort (and the requisites for aiding-and-abetting liability in connection with a tort are significantly different). This essay, written as a contribution to a forthcoming book, uses contrasts between law in the US and the UK to deepen its examination of this distinctive form of wrongdoing. The essay\u27s central claim is that how the law categorizes a wrong matters for the elements of accessory liability. That is, breaching a fiduciary duty and culpably assisting in the fiduciary\u27s breach are both instances of wrongful conduct. Characterizing both as tortious, as does US law, has consequences for the elements of accessory liability. The comparative account also illustrates the independent character of accessory liability, underscored by outcomes in both jurisdictions in which the accessory\u27s culpability differs from that of the fiduciary as primary wrongdoer

Ratification: Useful But Uneven

Ratification permits a principal to determine to be bound by the legal consequences of action taken by an agent after the fact of the agent’s conduct when the principal would otherwise not be bound. By ratifying a principal may clarify the effects of uncertainty, furnishing reassurance to the agent, the third party with whom the agent dealt, and other parties interested in the status of the transaction. However, at the point the principal decides whether to ratify, the principal knows facts not known to agent and third party at the time of the agent’s unauthorised transaction, in particular subsequent developments in the market. The principal thus may be tempted to speculate at the expense of the third party, ratifying if the transaction seems then favorable to the principal and, if not, relying on the agent’s lack of authority. This article is a comparative analysis of ratification doctrine within the systems covered by The Unauthorized Agent. Ratification doctrine is variable among these systems and, even within single systems, difficult to rationalize. The article argues that these doctrinal characteristics reflect tensions between two competing principles that underlie ratification—the necessity for the principal’s consent and considerations of fairness to third parties—leading to variations in doctrinal specifics. Ratification’s unevenness also reflects the complexity of consent within agency doctrine; system-by-system variations also stem from differences in the significance of ratification and the contexts in which the doctrine matters