Monday, November 19, 2018
Even after 19 years or so of teaching Business Associations courses, I still marvel at how hard it is to teach corporate fiduciary duty doctrine to my students. A lot of my frustration comes from the amount of (perhaps not-so-useful) judicially instigated labeling involved under Delaware law, as the leading state in the area. In particular, there is the narrowing of the duty of care to exclude both substantive duty of care claims and Caremark claims. And then there is the matter of how to best describe the nature of the business judgment rule and how to describe the interaction of disclosure (candor) with the fiduciary duties of care and loyalty. And finally there is a lingering doctrinal question as to whether, in other jurisdictions, good faith, classified as a subsidiary component of the duty of loyalty in Delaware, may be a free-standing fiduciary duty or, in the alternative, foundational, penumbral, etc. to the fiduciary duties of loyalty and care . . . . Tough stuff.
Is anyone else out there suffering in the same way I do in teaching fiduciary duties in a Business Associations or Corporations class? How do you handle the legal complexity/labeling questions? I continue to want to improve in teaching this material. I am all ears.
[Postscript: I failed to note in the original post the helpful comments that I received on a longer-form, less specific post on this issue two years ago. Feel free to look there for more and for some ideas folks shared about their teaching then.]