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12 - Commentary on In re The Walt Disney Co. Derivative Litigation
- from Part IV - Fiduciary Duties in Corporate Governance
- Edited by Anne M. Choike, Michigan State University, Usha R. Rodrigues, University of Georgia School of Law, Kelli Alces Williams, Florida State University
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- Book:
- Feminist Judgments: Corporate Law Rewritten
- Published online:
- 15 January 2023
- Print publication:
- 05 January 2023, pp 301-328
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Summary
In re Walt Disney Company Derivative Litigation iconically revealed the latitude the Chancery Court gives boards when using the business judgment rule. The business judgment rule presumes that “directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interest of the company.” The burden is on the plaintiff to show that duties were breached and that the directors acted in bad faith, but both the Chancery Court and the Delaware Supreme Court ruled it had not. Professor Hillary Sale, rewriting the Delaware Supreme Court’s opinion as Justice Sale, suggests an alternative “inclusive process” that sets a higher ideal for corporate governance Sale urges boards to ask follow-up questions, explain different assessments, and listen to and weigh multiple viewpoints. In her commentary on the rewritten Disney opinion, Professor Laura Rosenbury contextualizes Sale’s approach by comparing its relational reasoning to similar insights of feminist scholars in other legal fields at the time, and also by situating the facts giving rise to the Disney litigation in light of the company’s and broader economy’s then-prosperity. Professor Rosenbury also highlights the intersectional strengths of Sale’s rewritten judgment.
5 - Griswold v. Connecticut, 381 U.S. 479 (1965)
- from Part II - The feminist judgments
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- By Cynthia Hawkins DeBose, Professor at Stetson University College of Law where she teaches courses in Family Law., Laura Rosenbury, Professor of Law at University of Florida Levin College of Law.
- Edited by Kathryn M. Stanchi, Linda L. Berger, Bridget J. Crawford
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- Book:
- Feminist Judgments
- Published online:
- 05 August 2016
- Print publication:
- 02 August 2016, pp 98-113
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Summary
INTRODUCTION
Is there any reason why women should not receive clean, harmless, scientific knowledge on how to prevent conception? … The woman of the upper middle class has all available knowledge and implements to prevent conception. The woman of the lower middle class is struggling for this knowledge.
– Margaret SangerWithin the family law canon, Griswold v. Connecticut is heralded as foreshadowing the modern right to privacy. In Griswold, the U.S. Supreme Court struck down the Connecticut law banning contraceptive use due to its unconstitutional intrusion upon marital privacy. By upholding a married couple's right to use contraception, the Court established that procreation is not the sole or defining purpose of marriage.
Griswold's legacy includes the notable privacy cases Eisenstadt v. Baird, Roe v. Wade, and Carey v. Population Services International. Indeed, “Griswold's story demonstrates how conflict over the right to privacy – one of the most fiercely contested rights of the modern constitutional canon – has helped to entrench the right to privacy, to make it endure, and to imbue it with evolving meaning.”
In contrast, in the feminist judgment, Professor Laura Rosenbury, writing as Justice Rosenbury, rejects the privacy frame, and somewhat jarringly catapults forward to a world of sexual liberty regardless of relationship status. Justice Rosenbury also explicitly ties contraception to women's ability to participate in civic and political life, emphasizing that control over one's reproductive future is crucial to equal citizenship regardless of gender, race, or class. The feminist Griswold therefore propels the opinion out of the marital bedroom into a world of sexual pluralism that challenges traditional divides between public and private.
CONNECTICUT's CONTRACEPTION BAN – RELICS OF THE COMSTOCK ACT (1873)
As Rosenbury explains, the statutes in Griswold were vestiges of the 1873 Comstock Act, a federal law that prohibited the delivery or transportation of obscene or immoral material, which included any methods of, or information pertaining to, birth control. The Comstock Act was openly moralistic, and its true purpose was to link sex and procreation – any separation of the two was “obscene.” The law's namesake, Anthony Comstock, was a so-called morality crusader. By early 1874, it was publicized that Comstock had seized 130,000 pounds of books, 194,000 pictures and photographs, and 60,300 “articles made of rubber for immoral purposes, and used by both sexes.”