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Obituary: Ralph K Winter, 1935-2020

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发表于 12-22-2020 13:02:32 | 显示全部楼层 |阅读模式
James R Hagerty, Judge Made a Mark on Business Law; Mr Winter resisted what he saw as needless legal constraints on business. Wall Street Journal, Dec 19, 2020.
https://www.wsj.com/articles/u-s ... ess-law-11608135844

Note:
(a)
(i) Ralph K Winter Jr
https://en.wikipedia.org/wiki/Ralph_K._Winter_Jr.
("He received his Bachelor of Arts degree from Yale University in 1957 and obtained his Bachelor of Laws [LLB] from Yale Law School in 1960. He served as a law clerk for Judge Caleb Merrill Wright of the United States District Court for the District of Delaware from 1960 to 1961 and as a law clerk for Judge Thurgood Marshall of the United States Court of Appeals for the Second Circuit from 1961 to 1962. * * * He was an adjunct scholar at the American Enterprise Institute in Washington, DC, from 1972 to 1981. * * * Winter advocated for limited government involvement in business matters.[3] He also supported state control in such matters, as opposed to federal control.[3, which is this WSJ obituary] * * * He was confirmed by the United States Senate on December 9, 1981, and received his commission on December 10, 1981")

table: judge of US Court of Appeals for Second Circuit (1981 (appointed by Reagan) - 2000, of which as chief judge 1997-2000); senior judge (ie, semi-retired, with less case load) of 2nd Circuit 2000-2020 (United States Constitution does not set an age for a federal judge to retire, including that in Supreme Court)
(ii) Peter Lattman, Why Did Law Schools Switch from LLBs to JDs? Wall Street Journal, Sept 28, 2007 (blog).
https://www.wsj.com/articles/BL-LB-4565
(iii) Michael Mukasey
https://en.wikipedia.org/wiki/Michael_Mukasey
(1941- ; bachelor's degree in history from Columbia College; Bachelor of Laws from Yale; judge of the United States District Court for the Southern District of New York (in Manhattan) 1987-2006, of which he was chief judge 2000-2006; senior judge of that court 2006-2006; US attorney general 2006-2009 in George W Bush administration)


(b) "Where a private transaction imposes no substantial cost on society or third parties, the parties to it should be allowed to arrange their affairs in a way that satisfies them rather than some distant official."

The quotation is from
Ralph K Winter Jr, State Law, Shareholder Protection, and the Theory of the Corporation. The Journal of Legal Studies, 6: 251-292 (1977)
https://www.jstor.org/stable/723990

https://books.google.com/books?i ... ty+or+third+parties,+the+parties+to+it+should+be+allowed+to+arrange+their+affairs+in+a+way+that+satisfies+them+rather+than+some+distant+official%5C&source=bl&ots=37ilcbAtQp&sig=ACfU3U36EbuIyqDbhgJfL0aEN8WziVBYUA&hl=en&sa=X&ved=2ahUKEwiNyreLq-LtAhXinuAKHcHYDnkQ6AEwAHoECAEQAg#v=onepage&q=Where%20a%20private%20transaction%20imposes%20no%20substantial%20cost%20on%20society%20or%20third%20parties%2C%20the%20parties%20to%20it%20should%20be%20allowed%20to%20arrange%20their%20affairs%20in%20a%20way%20that%20satisfies%20them%20rather%20than%20some%20distant%20official%5C&f=false
(starting at page 269 (quotation at page 270) of The Role of the Shareholder in the Corporate World; Hearings before Subcommittee on Citizens and Shareholders Rights and Remedies of Committee on the Judiciary, United States Senate. Part I, June 27, 28, 1977)

Paragraph 1 of this article (same as testimony in the hearing) referred to
Santa Fe Industries, Inc v Green (1977) 430 US 462
https://scholar.google.com/scholar_case?case=12807392334939508390
("minority shareholders could either accept the price offered or reject it and seek an appraisal in the Delaware Court of Chancery * * * We thus adhere to the position that 'Congress by § 10(b) [of Securities Exchange Act of 1934] did not seek to regulate transactions which constitute no more than internal corporate mismanagement' ")

What US Supreme Court said in that case is that minority shareholders of Kirby could take it or reject it, in the latter by going to Delaware Court of Chancery, not federal court in that § 10(b) offered no federal jurisdiction for their (minority shareholders') grievance.

(c) The online , but not print, version of this obituary wrote, "While there [in Yale Law School], he met Kathryn 'Kate' Higgins, who worked in the law library. They married in 1961."

Kathryn Winter, 1936-2012. New Haven Register, Sept 7-9, 2012 (obituary)
https://www.legacy.com/obituarie ... 8478&fhid=13054

So in 1961, she was 25 and he, 26.
(d) "Mr Winter served as a law clerk to Thurgood Marshall, the future Supreme Court justice, when he -Marshall] was appointed to the Second Circuit Court of Appeals in 1961. Justice Marshall later told the New York Times that in one case he was unsure whether he had jurisdiction and asked Mr. Winter to check. After looking into the matter, Mr Winter returned to say: 'Hey, Judge, guess what you ain't got!' * * * Mr Winter joined the Yale law faculty in 1962 and remained a full-time professor there until joining the appeals court in 1982 [Wikipedia in (a) is correct, that he became a judge in December 1981]."

There is usually a comma or question mark after what.
(e) "In the 1970s, he bucked conventional wisdom on corporate-governance law."

What the obituary described afterwards was NOT conventional wisdom. Since colonial times, marriage, education, corporation -- to name a few -- have always been in the state, not federal, domain.
---------------------full text (print)
Many judges are authorities on constitutional or criminal law. Ralph K. Winter stood out for his rare expertise on business and finance.

Judge Winter, who died Dec 8 at the age of 85, made a mark on corporate governance and securities law while serving in the Manhattan-based U. Court of Appeals for the Second Circuit from 1982 until his death. He resisted what he saw as needless legal constraints on business and articulated a memorable case for maintaining state control over laws involving the relationship between shareholders and management.

"Where a private transaction imposes no substantial cost on society or third parties, the parties to it should be allowed to arrange their affairs in a way that satisfies them rather than some distant official," he wrote.

Mr Winter died at a nursing home in Guilford, Conn. He had been under treatment for esophageal cancer and tested positive for Covid-19 about two months before his death, his son, Andrew Winter, said.

An only child, Ralph Karl Winter was born July 30, 1935, and grew up in Waterbury, Conn, where his father worked in the real-estate business. He attended the private Taft School in nearby Watertown.

After a Taft headmaster told him he wasn't the Yale type and shouldn’t apply there, he applied only to Yale—and was admitted. His major was political science, but he later wished he had chosen history. He earned a bachelor’s degree in 1957 and a law degree, also at Yale, in 1960.

Mr Winter served as a law clerk to Thurgood Marshall, the future Supreme Court justice, when he -Marshall] was appointed to the Second Circuit Court of Appeals in 1961. Justice Marshall later told the New York Times that in one case he was unsure whether he had jurisdiction and asked Mr. Winter to check. After looking into the matter, Mr Winter returned to say: 'Hey, Judge, guess what you ain't got!'

Mr Winter joined the Yale law faculty in 1962 and remained a full-time professor there until joining the appeals court in 1982. Especially during student uprisings of the late 1960s and early 1970s, being a conservative at Yale could be trying. "I've been called a fascist because I believe in small government," he said in a 2017 oral history at Yale Law School.

In the 1970s, he bucked conventional wisdom on corporate-governance law. At the time, the consumer advocate Ralph Nader was calling for federal chartering of large corporations. William L. Cary, a former chairman of the Securities and Exchange Commission, argued for minimum federal standards.

Delaware had grabbed the lion's share of legal fees associated with granting corporate charters. Mr Cary wrote a 1974 article saying the state had led a "race for the bottom" in legal standards. States, he said, had adopted laws that empowered managers and "watered the rights of shareholders vis-à-vis management down to a thin gruel."

In a 1977 article replying to Messrs Cary and Nader, Mr Winter insisted that state regulation was generally preferable to federal rules. Competition among states had reduced regulation, he said, but in a way that benefited shareholders by reducing compliance costs and making companies more profitable.
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