No Power to be Disloyal (or, How Not to Write a Loyalty Opinion)

It is the thesis of this paper that no privilege to act disloyally exists: that a power to act never trumps the duty of loyalty. My method is to discuss three cases in which the privilege or power to act appears to receive judicial support. The paper shows why this strategy does not work. Such assertions have no support in logic (and usually not in law), provide a slippery slope at the bottom of which the duty of loyalty ceases to exist, often result in a decision being internally inconsistent, and fail to stand the test of time.

I will do my best to unwind the harm these cases might cause. My hope is that those reading this paper will take its criticism to future cases so that this kind of argument can be defeated elsewhere in the law, and so that courts will not assert such things in the future. There is always a better, wiser course for the law.