IS THE CORPORATE DIRECTOR'S DUTY OF CARE A "FIDUCIARY" DUTY? DOES IT MATTER?

In an article appearing in the Wake Forest Law Review several years ago, the author argued that Delaware's nascent corporate law duty of "good faith" ought to be conceptualized as a component of the duty of loyalty, the logic being that the former conceptual vessel could contain no content not wholly redundant with the latter. In this essay he returns to the topic, exploring further the merits of this proposal as well as the conceptual and practical impediments that might stand in the way -- a reexamination prompted by comparative work on corporate governance in common law jurisdictions that he has undertaken in the intervening years. While he ultimately concedes that there may be no pressing imperative to restyle the duty of care in nonfiduciary terms moving forward, he concludes that the analytical problems described in this essay can otherwise be remedied only through a statutory provision that more clearly distinguishes these differing duties and enforcement strategies from one another, foreclosing their further conflation in a categorical manner.