Lessons to Be Learned: How the Policy of Freedom to Contract in Delaware's Alternative Entity Law Might Inform Delaware's General Corporation Law

Abstract

This article considers whether, as a result of recent activity by alternative entities in the public markets, it is appropriate to revise the Delaware General Corporation Law (DGCL) to provide for greater contractual flexibility to shareholders in all Delaware corporations. Such revisions may seek to alter or redefine the duties of directors and officers. Two situations presently call for contractual modification of managerial duties in public corporations: (1) aiding and abetting liability of advisors to exculpated directors, and (2) nonstockholder constituencies of Beneficial Corporations (B Corporations).