ABSTRACT
Smith v Van Gorkom, 488 A 2d 858 (Del. 1985), is one of the most iconic and most criticized decisions to have shaped the law of corporate fiduciary duty. Yet women’s voices are nowhere to be found in the record of the Trans Union merger, nor in the resulting shareholder class action litigation that ultimately reached the Delaware Supreme Court. In addition, there is no evidence that either the defendants or the court believed that the duty of care required directors to consider how the proposed transaction might affect anyone other than the Trans Union shareholders.
This chapter is a commentary on the accompanying ‘feminist judgment’ written by Professor Lua Yuille for this volume. Both the commentary and her ‘rewritten’ opinion reimagine what Smith v Van Gorkom might have said if written from the standpoint of an intersectional feminism. As my commentary explains, her opinion articulates a higher duty of care for director and officer decision-making that would amplify diverse interests, perspectives, and voices, and would center racial, class, and gender dimensions. This standard would also align with the spiritual and religious identities and faith commitments of many women, reflecting internal vectors of identity that are often overlooked but are perhaps the most powerful in grounding a coherent and robust understanding of due care, and in meeting the ethical, relational, and procedural demands of corporate fiduciary duty.
Harper Ho, Virginia E, Commentary on Smith v Van Gorkom – Feminist Judgments: Rewritten Corporate Law (Aug. 8, 2021) in Feminist Judgments: Rewritten Corporate Law Opinions (Anne Choike, Usha R Rodrigues and Kelli Alces Williams, eds, 2022, forthcoming), City University of Hong Kong School of Law Legal Studies Research Paper.
First posted 2022-03-11 16:00:39
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