I basically like rules. Rules, laws, parameters, boundaries. I tend to be more of a visual thinker, so rules allow me to create mental boxes into which I can visually put ideas. And, setting aside my own cognitive style, rules keep the world organized. We all know what to expect from each other if we have “rules” (whether formalized as laws (or otherwise) or informally agreed upon (as norms, perhaps)) regarding certain matters.
This is part of why Delawareâ€™s â€œduty of careâ€? jurisprudence and the evolution of this gossamer â€œduty of good faithâ€? slay me. Since when is good faith its own â€œdutyâ€? â€“ we just cannot *make up* stand-alone duties, with independent rights to redress, can we? First, the Delaware Supreme Court talks only of the two traditional fiduciary duties â€“ care and loyalty. Then, out of nowhere, a young â€œduty of good faithâ€? appears, all dewy-faced, innocent, and undefined, and we are left with a merry triad. (I am picturing a rabbit warren filled with multiplying duties. . . . (tongue firmly in cheek)) Can *I* just make up some duties? Can *you* just make up some duties? (Everyone sing: â€œWith a duty here, with a duty there. Here a duty. There a duty. Everywhere a duty-duty. Supreme Court of Delaware had a farm. Ee I Ee I Oh!â€?) No â€“ people cannot make up duties willy-nilly. That would lead to chaos! We need rules regarding the creation of duties and . . . rules.
And my â€œduty of good faithâ€? indignation is the least of my complaints about the lack of clear or agreeably articulated â€œrulesâ€? in Delawareâ€™s duty of care jurisprudence. The inconsistencies and lack of rules run deep. For example, I have to follow my business judgment rule (presumption) lecture in Corps. class with the disclaimer that other scholars or various jurists have different ways of working through the business judgment rule discussion. I do not want my students to be surprised if they come across varying BJR articulations in their practice somewhere down the road.
I crave clarity. I want rules. I yearn for elements. I recall happily marching through the well-defined elements of crimes in Crim. Law class years ago. Elements, rules, structure. Everyone knows what to expect from each other when discussing assault in â€œXYZ jurisdiction.â€? There are elements. You are committing assault if all of the â€œassault elementâ€? boxes are checked. Not so in Delaware when dealing with fiduciary duty jurisprudence.
But this post is not about Delaware and its *ahem* sub-optimal duty of care jurisprudence. I will leave that discussion qua indictment to The Larrys: GW Professor Lawrence Mitchell refers to Delaware in his 2003 Villanova Law Review article as the â€œbrothel of corporate law.â€? BC Professor Larry Cunningham says (in conjunction with co-author Cardozo Professor Charles Yablon) â€œPredicting the course of Delaware law from prior case law is like watching clouds. They seem, at times, to take on recognizable shapes and forms, even to resemble something familiar. But you know that whatever shapes you think you see can vanish in a puff of wind.â€?
Instead, this longwinded post is about trying to guest blog without rules. I need rules, guidance, and parameters. What is expected of me? What defines a â€œgoodâ€? guest blogger? Do I need to put out lots of superficial posts or just a couple of heavyweight posts? Will there be a formal review? Are there whisper numbers? I have set a guest-blogging goal for myself of blogging every other day or every third day â€“ given that I tend to favor visual thinking, it takes me more time than average to translate my thoughts into written words. But, yet, even after I edit, re-edit, and edit again in the hopes of producing a â€œgoodâ€? post, I am still wary because I *really* do not know if even putting out one decent post every other day is in accord with the rules. Is it better in the long run to just put out lots of mediocre posts, so that the phrase â€œposted by Guest Blogger Elizabeth Nowickiâ€? gets a lot of blog time? I do not know what the blogging rules allow. And maybe it is not even about the blogging rules â€“ maybe it is about which big-name bloggers I can â€œcultivate.â€? That said, I am not suggesting we draft a â€œRestatement of Bloggingâ€? or ask ALI to put out some guidelines. Indeed, I am not always the biggest fan of those sorts of quasi-rules, because they are not binding, and there appears to sometimes be just a very tiny bit of politicking underlying the drafting. (Visual Articulation: Model codes or guidelines do not always offer solid, wooden boxes in which to put issues. They sometimes offer . . . cardboard boxes.)
Rules discussion aside, I will be back later this morning with a more substantive post about Vioxx. I intended to post it Thursday morning, but I ended up miring myself in some related research. In the meanwhile, does this post count as a real post, to be included in my guest-blogging promotion and tenure dossier? Or is this not â€œmeatyâ€? enough or â€œseriousâ€? enough to count toward my guest blogging requirements? When I go blog on Concurringopinions.com as a guest in a few weeks, will I be able to go in as a â€œSenior Guest Bloggerâ€? or will I get an e-mail from Dan Solove saying that he and his cohorts have talked it over, and they do not think I should try to go up for promotion to â€œSeniorâ€? Guest Blogger quite yet?
(Oh, and Professor Kaimipono D. Wenger over on http://www.concurringopinions.com/ recently served up a very funny post about tenor/sarcasm/teasing in posts. Hopefully, blogging common law will soon address the use of teasing/sarcasm in blogging, because that issue makes me nervous, too. There are no rules on point. I would like to include blue â€œhereâ€? hyperlinks to both Professor Wengerâ€™s post and my earlier post on truthonthemarket.com regarding my tongue-in-cheek tenor when blogging, but I do not know how to create live, fancy blue â€œhereâ€? hyperlinks in this template. If ALI decides to weigh in on blogging rules, hopefully they will give some guidance about standardized technology.)
One last thing: Is mentioning Solove, Wenger, and Concurringopinions.com in a post that I post on Truthonthemarket.com a violation of the guest blogging rules, such that I will likely get a friendly â€œwarningâ€? e-mail from Josh â€œThe Enforcerâ€? Wright? Will Professor Wrightâ€™s polite â€œfirst warningâ€? e-mail also chastise me for straying from â€œacademic commentaryâ€? on law, business and economics? Worse still, are there so many non sequiturs in the body of my above post that I will actually be fired from my guest-blogging job with Truthonthemarket.com, and I will find the following e-mail in my inbox?
Effective immediately, we have relieved you of your password and your guest-blogging duties at truthonthemarket.com.
It just was not working out.
Itâ€™s not you â€“ itâ€™s us. For accuracy and formalism, my internal draftsman insists that I note that, technically, “it is we.”
Actually, no, it *is* you.
Good luck in the future.