CORPORATE FIDUCIARY PRINCIPLES FOR THE POST-CONTRACTARIAN ERA
Rutheford B. Campbell, Jr.
The impact of the law and economics movement on legal scholarship, legal analysis, and, ultimately, on the rules under which our society operates is substantial. The proponents of this movement (“Contractarians”) articulate their positions skillfully and apply their principles broadly across the entire spectrum of our laws, including, of course, the area of corporate law. Their goal is to convince the rest of us that their rules and principles are worthy of the imprimatur of society.
ANDERS IN THE FIFTY STATES: SOME APPELLANTS’ EQUAL PROTECTION IS MORE EQUAL THAN OTHERS’
MARTHA C. WARNER
A continuing source of frustration for the appellate judge is the review of appeals by indigent defendants whose appointed counsel can find no meritorious issues and files what is referred to as an Anders brief, required by the U.S. Supreme Court’s holding in Anders v. California. These appeals raise several problems for the appellate court. They require the devotion of court resources and time to appeals already deemed by counsel to have no merit; they require the court to review the record much more meticulously than in appeals raising meritorious issues; and they demand that the court raise, sua sponte, any issues that it deems arguably meritorious, even when counsel has not briefed those issues. In this respect, the appellate court treats this class of appeals in a significantly different way from other appeals. Because of these and other difficulties, several state appellate courts have adopted alternative procedures to avoid the Anders dilemma, while others have struggled with its application. The purpose of this Article is to examine what Anders and its progeny have required of state appellate courts, to determine how Anders has been applied in those courts, and to suggest some solutions to the problems Anders raises for the courts
ONE TOO MANY RIVERS TO CROSS: RULE 50 PRACTICE IN THE MODERN ERA OF SUMMARY JUDGMENT
Robert J. Gregory
The summary judgment procedure has undergone a significant transformation in recent years. Historically, summary judgment was a rarely used procedural device, designed “to preserve the court from frivolous defenses and to defeat attempts to use formal pleading as means to delay the recovery of just demands.” Even after adoption of the Federal Rules of Civil Procedure, which extended summary judgment to all cases and parties, courts remained wary of summary disposition because they “perceiv[ed] it as threatening a denial of such fundamental guarantees as the right to confront witnesses, the right of the jury to make inferences and determinations of credibility, and the right to have one’s cause advocated by counsel before a jury.” The standard formulation was that summary judgment should be denied whenever there was the “slightest doubt as to the facts.”
GUESTS IN ANOTHER’S HOUSE: AN ANALYSIS OF RACIALLY DISPARATE BAR PERFORMANCE
Cecil J. Hunt, II
Prevailing wisdom holds that substantial disparities exist in bar passage rates between people of color and their white counterparts Some scholars argue that these differences reflect the educational preparation and academic performance of racial groups prior to and during law school. However, such disparate performance also generates concern that the bar examination, the gateway to the legal profession, may be infected with racial, ethnic, cultural, gender, and/or economic bias unrelated to the competent practice of law. To the extent that such bias prevents otherwise capable law graduates from entering the legal profession, it is a serious problem.
HOLDING THE LINE AT VMI AND THE CITADEL: THE PRESERVATION OF A STATE’S RIGHT TO OFFER A SINGLE-GENDER MILITARY EDUCATION
Jeremy N. Jungreis
The men rise before sunrise. With the playing of reveille, they are out of their bunks, on the move. All around is frantic activity, noise, making of beds, adjusting of uniforms. No stalls divide the bathrooms; there is no privacy. All is seen. People are yelling, “Formation in five minutes, get out of the barracks.” Soon they are out in the cold morning air. They will not sleep for nearly seventeen hours. This is not boot camp and these are not soldiers. They are college students, cadets at the Virginia Military Institute (VMI) and The Citadel, the state-funded military colleges of Virginia and South Carolina.
BUYERS, BEWARE: THE FLORIDA SUPREME COURT’S ABROGATION OF THE APPARENT AUTHORITY DOCTRINE LEAVES PLAINTIFFS HOLDING THE TAB FOR TORTS OF FRANCHISEES— MOBIL OIL CORP. V. BRANSFORD
Brett A. Brosseit
In 1990, Jeremy Bransford entered a Mobil Mini Mart filling station to purchase some food items. Shortly thereafter, an argument arose between Mr. Bransford and the filling station cashier. Suddenly, the cashier attacked Mr. Bransford and beat him severely, causing permanent injury. Mr. Bransford filed suit against Mobil, alleging that Mobil had established an apparent authority relationship with the operator of the filling station, who was a Mobil franchisee. The evidence of apparent authority included facts indicating that Mobil owned the property on which the franchise was located, sold Mobil products at the filling station, used Mobil trademarks and logos throughout the premises, and sent Mobil representatives to the station to provide various routine support services. Further, the franchise agreement required the use of Mobil symbols and the selling of Mobil products, and the filling station employee was wearing the Mobil logo on his clothing when he attacked Mr. Bransford.