However, Elizabeth is entirely correct in her interpretation from the standpoint of *natural language*, which includes fuzzy in-between categories whether we like it or not. Entirely respectable fields in semantics and logic have grown over the past century that may be able to accomodate Elizabeth’s position (one variety of them are called “intuitionists”).

Incidentally, Elizabeth’s interpretation is one which I share quite strongly and independently, though my approach is from the standpoint of the philosophy of language and not law.

And, further, if we were to define precisely this third-way middle option, then that would actually be an exercize in *reducing* vagueness, not increasing it. So I don’t sympathize with that objection.

BTW, Kate–you, more than any other blogger, seem to throw your ideas out there for everyone to see, and I, for one, really appreciate your thoughts, even though I disagree with many of them.

1. You said “in my limited English, “not goodâ€? actually means “badâ€? – rather than “neither good nor badâ€? as you suggest.”
I actually do not think that your point is relevant – that is to say, “not good” versus “bad” is not quite parallel to “not in good faith” versus “bad faith.” But given your comment on “limited English,” I will offer that “not good” is often not the same as “bad.” I disagree with you in that regard.

Example:
Elizabeth: Kate, does this outfit look good?
Kate: Ahhhhh…. Well, it doesn’t look *bad,* but I can’t say that it looks *good,* either.
Elizabeth: Well, I’m going to dinner with a bunch of judges who want to hear about my “not in good faith” article, so I want to look *good,* not just. . . passable.
Kate: Ok. Got it. Then wear some brown. It brings out your eyes. That will look good! Brown always looks good on you. The black that you are wearing doesn’t look *bad,* but it does not do anything for you.

So, if you were asking what the difference between “bad” and “not good” is, it seems that the difference is one of degree. Interestingly, Merriam-Webster Online does not use “not good” to define “bad” nor does it do the opposite. Good is defined first as “of a favorable character or tendency,” such that it seems that “not good” would include the “neutral” or decent or satisfactory categories.

2. The paper has not been workshopped beyond the four walls of Richmond. At Richmond, given that I am essentially the only corp. law scholar on the faculty, the reaction was predictable: “Right. Not in good faith dose not mean bad faith.” (That is to say, this curious corporate law unwillingness to define good faith and let it stand as its own measuring stick seems to have struck my colleagues as a bit odd.)
**** Let me take this opportunity to say that, if any generous reader is affiliated with a law school that has a workshop series and is in need of warm bodies (or is willing to take a warm workshop-seeking body), please let me know. I would be grateful for any chances to present this paper anywhere.

That said, the limited audiences who have heard about my position have responded as follows:
Reactions from the bench to my proposal have been shockingly good. I have yet to have a jurist react as you and Gordon have. Indeed, the reaction has often been exactly the opposite. For example, one jurist admitted that she/he wished a plaintiff had served the argument up as I did when the chance arose. Another jurist went so far as to sigh and say something akin to “I have been saying this for years.” An additional jurist was . . . initially leery but seemed open to considering the idea (not convinced, by any stretch, but willing to consider the idea). Just to be clear, the “not in good faith” verus “bad faith” discussion comes up now and again in various published opinons in different contexts, and every time (except one) that I have so far found the discussion being had directly, my argument carries the day or at least holds ground (setting aside the corporate governance or corporate law realm in general, b/c the issue has come up only in garbled fashion, in my view).
The bar: I have only discussed my position with two practitioners. One just did not understand it. The fellow was a plaintiffs’ lawyer, with the PERFECT opportunity to make the argument, but he *just* *did* *not* *get* *it.* Sad. The other practitioner agreed with me. I imagine that conversations with the defense bar would be predictable and negative – I have not yet had them, however.
Other Academics: You and Gordon are the only two I have yet come across who thought my idea was “bizarre” or, in Gordon’s view, “a nightmare.” The few other academics who have heard the argument have been either in agreement, neutral, or skeptical of how far I will get with the argument but willing to concede that it has merit. I will be presenting this paper at Cornell in the fall – I will report back.

Just so we are clear, I *know* that my position is very unlikely to carry the day. I agree that it is common, in various opinions, for the parlance to automatically run between good faith and bad faith. I know that the defense bar would *hate* to lose the cushion that “bad faith” affords. I agree that it has historically been the habit to shorthand “bad faith” for “not in good faith.” But, just because it is done, does not make it intellectually defensible (not to metion right) in the few cases where it actually MAKES a difference. As one jurist said, “your argument would make a difference with the Caremark sorts of cases.” Bingo!

3. As I describe in point one, above, I think I can dispose of your “plain English” argument by using. . . the dictionary, case law, examples, etc. There is a huge gap in terms of pure dictionary definition between “not in good faith” and “bad faith.” (If you were to line up the defintion of good faith with the definition of bad faith, you would immediately see that they are *not* definitional opposites!) As far as your utilitarian argument, if two things do *not* mean the same thing (and I maintain that “not in good faith” and “bad faith” do not), it probably is not helping the discussion to make a vague situation . . . just plain *wrong* from a “plain English” standpoint. That said, I am sure your view and that of Gordon will be shared by many, if I am lucky enough to get chances to workshop the paper. And I have to believe that, at the end of the day, the defense bar would never let the tide turn. Let’s be honest: They convinced the legislature in the 1980’s that there was an insurance crisis such that the Delaware legislature adopted 102(b)(7). There was no crisis – please. But that is another post entirely.

Thanks for the question, Kate.

I in fact dislike your proposal, partly for statutory interpretation reasons (in my limited English, “not good� actually means “bad� – rather than “neither good nor bad� as you suggest), and partly for utilitarian reasons (I see no reason to think up yet another vague category in the world that needs more clarity and predictability; the fact that this area of law is already polluted by vagueness doesn’t mean we should add more vagueness or that more vagueness won’t cause more harm).

But again, I am mostly curious about the reactions from the bar and the bench.

I am delighted to be gaining ground with you. You initially observed that my position (that “not in good faith” should mean “not in good faith”) was bizarre; now your opinion of my position has graduated to “stillborn.”

Please tell me more about why you continue to disagree. Your colorful comments do not give me the best understanding of why you prefer to define “not in good faith” as meaning the same thing as “bad faith” as opposed to just defining “not in good faith” to mean “something other than affirmative good faith.” I recall that you had mentioned earlier that you thought my definition would be unfriendly to business and unclear. As to the latter concern, I think we agree that we are already in the land of the unclear. That, to me, is not necessarily a good reason to give up the struggle to well-define “good faith” in the affirmative (such that the meaning of “not in good faith” is more clear, if not even close to obvious!) in favor of mis-defining “not in good faith” as shorthand for “bad faith.” I guess you disagree? Or is it more that your first concern is an overwhelming (in your view) concern? I understand the argument that we do not want to freeze the pool of potential directors – obviously I strongly disagree with the merits of the argument. But is that concern what is underpinning your disagreement with my position?

I appreciate your willingness to engage in the discussion. This will be a good distraction from the very sad recent events at today’s Preakness. In case you missed it, Barbaro, the favorite for today’s race, was pulled up about ten strides into the race, as he snapped his ankle in two places. To see that poor animal’s lower-leg wobble, to see him holding up his leg in obviously serious distress, and to see him try to kick away whatever it was that was “hurting him” was gut-wrenching. Michael Matz, Barbaro’s trainer, is an incredible trainer and horseman, in addition to being a very big-hearted guy, and, as best I could tell, Barbaro was ready to make that track his. (Barbaro broke through the starting gates before the bell, and he was full of himself in the warm-up.) It was very sad to see what should have been a wonderful day for Michael and his horse end in tragedy. God bless the jockey for being able to stop Barbaro quickly – hopefully the jockey’s excellent response saved the animal from turning a broken ankle into a terminal injury.
So, Kate, I am glad you are giving me something less troubling to think about, and I thank you.