Issue 8

Common Law Disclosure Duties and the Sin of Omission: Testing the Meta-theories

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of jurisdictions and covering over 200 years. 

The results are mixed. In some cases it appears that conventional wisdom is correct. For example, our data support the claim that courts are more likely to require disclosure of latent, as opposed to patent, defects. In addition, courts are more likely to require full disclosure between parties in a fiduciary or confidential relationship. On the other hand, our results cast doubt on much of the conventional wisdom regarding the law of fraudulent silence. Indeed, our results challenge ten of the most prominent theories that have been asserted to explain when courts will require disclosure. We find that courts are no more likely to impose disclosure duties when the information is casually acquired as opposed to deliberately acquired and that unequal access to information by the contracting parties is not a significant factor that drives courts to require disclosure. We do find, however, that when these two factors are present simultaneously courts are significantly more likely to force disclosure. Perhaps most interestingly, although it is generally understood that courts have become more likely to impose disclosure duties over time, we find that courts actually have become less likely to require disclosure over time.  

Lawrence Lessig’s Dystopian Vision

In Free Culture, Stanford Law School Professor Lawrence Lessig has ratcheted up his already heated rhetoric to produce a book that warns that the health of the “ecosystem of creativity” is in “grave peril” due to the efforts of “big cultural monopolists” to reduce the size of the public domain while using new technologies “to control what we can and can’t do with the culture all around us.” Failure to reverse the degradation of this ecosystem, we are assured, could lead to the loss of “freedom to create, freedom to build” and even “freedom to imagine.”

But the curious thing about Free Culture is that, stripped of its impassioned tone, the book portrays not a world of suffocated creativity and cultural impoverishment, but rather one where an unprecedented number of individuals are engaged in creative projects, free to make use of and draw inspiration from a rich trove of cultural resources. To be sure, the picture that emerges is far from a Panglossian “best of all possible worlds.” Real problems exist, and Lessig provides a valuable public service in pointing them out. Absent from Lessig’s analysis, though, is a full acknowledgement that the problems he details are of a piece with ones that Anglo-American law has confronted many times. In particular, the concern that special interests will pressure legislatures to change the contours of property rights so as to restrict competition was well understood by the nation’s founders, and the drawbacks of granting property rights to individuals and institutions who place little or no value on such rights (as may have occurred with the abolition of formal registration requirements to obtain copyrights) have been extensively discussed in the contexts of adverse possession and future interests. 

Lessig’s stubborn insistence that the dangers that loom are of unprecedented magnitude leads him to suggest that sweeping overhauls of legal rules and institutions as well as of societal norms are warranted. But a careful reading of Lessig’s own litany points to a different, more complicated conclusion: existing regimes are for the most part healthy, albeit in need of continual monitoring and adjustment.

Toward a Controlling Shareholder Safe Harbor

This Note surveys the law governing transactions between public corporations and their controlling shareholders. It explains that Delaware courts review these “controlling shareholder transactions” under the “entire fairness” standard. Yet, Delaware and the Model Act provide safe harbors to review independently approved transactions between corporations and their directors under the business judgment rule. This Note questions the disparate treatment and suggests that the same constraints on interested directors—namely, disinterested approval and market checks—are at least as effective in supervising controlling shareholders.

Next, this Note proposes that a safe harbor doctrine extend to controlling shareholder transactions. The premise is that, so long as the interests of controlling and minority shareholders are aligned, independent approval and market checks together provide sufficient constraints that challenge the utility of the current entire fairness rule. Yet, because these constraints fail when shareholder interests diverge in the so-called “final period,” this Note suggests that controlling shareholder transactions be separated into (1) final period and (2) non-final period categories. Business judgment is appropriate when shareholder interests are aligned, but entire fairness is necessary in the final period to protect the minority from the controlling shareholder’s self interest.

This argument relies on two principal Delaware cases: Puma v. Marriott (1971) and Kahn v. Lynch Communications (1994). It suggests that Lynch implicitly recognized the final period problem, while Puma declined judicial review because the aggregate interests of shareholders were aligned. Thus, read together, they are seen as wholly consistent with the theory underlying a controlling shareholder safe harbor.

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