D. Gordon Smith, 𝘈 𝘗𝘳𝘰𝘱𝘰𝘴𝘢𝘭 𝘵𝘰 𝘌𝘭𝘪𝘮𝘪𝘯𝘢𝘵𝘦 𝘋𝘪𝘳𝘦𝘤𝘵𝘰𝘳 𝘚𝘵𝘢𝘯𝘥𝘢𝘳𝘥𝘴 𝘍𝘳𝘰𝘮 𝘵𝘩𝘦 𝘔𝘰𝘥𝘦𝘭 𝘉𝘶𝘴𝘪𝘯𝘦𝘴𝘴 𝘊𝘰𝘳𝘱𝘰𝘳𝘢𝘵𝘪𝘰𝘯𝘴 𝘈𝘤𝘵, 68 U. CIN. L. REV., 1201 (1999).
The Committee on Corporate Laws of the Business Section of the American Bar Association recently adopted amendments to the section of the Model Business Corporation Act (MBCA) enunciating standards of director performance. In place of the current section 8.30, which has been adopted by 42 states, the Committee has adopted two sections - one defining a standard of conduct and one defining a standard of liability for corporate directors. This paper argues that these new standards do not achieve the goals of bifurcation. Moreover, if adopted and used, the new standards will engender confusion and possibly inequitable results. This paper proposes the removal of standards governing the duty of care from the MBCA, returning authority over this area of law to the common law courts.
For the “Twelfth Annual Conference on Corporate Law,” sponsored by University of Cincinnati School of Law, Cincinnati, Ohio on March 11, 1999.
University of Cincinnati Law Review