Theodore of Tarsus

 

Theodore of Tarsus

Today marks the anniversary of the death, in the year 690, of Theodore of Tarsus. At the time of his death, he was the Archbishop of Canterbury. Probably you have never heard of him. That’s unfortunate; he led a most interesting life. 

Theodore was born in Tarsus (the same city as was born Paul the Apostle) on the southern coast of what is today Turkey. He grew up at a time of conflict between the Byzantine Empire controlled out of Constantinople and the Sassanid Empire out of what was then referred to as Persia (today’s Iran). At this time, pre-the rise of Islam, most of the Sassanid Empire was Zorastrian.  By the early 600s and the rise of Islam, the Sassanid Empire converted to Islam. As such, through this stage in his life, Theodore had been immersed in classical Persian and then Muslim cultures even as he studied classical Western and Christian studies. Ultimately, he relocated first to Constantinople and then to Rome, where he entered a monastery and continued his studies. 

Following the death, before consecration, of a man intended to be the Archbishop of Canterbury (a certain Wighard), Theodore was chosen by the Pope to fill that vacant See. He was consecrated as the Archbishop of Canterbury in Rome, and at some point thereafter departed for England. Once in England, he took steps with respect to a variety of issues ranging from the calculation on what day Easter should be held in a variety of matters of church discipline. He is well served as a mediator in a number of political disputes. He as well founded a famous school at Canterbury. Many factors of his time as the Archbishop of Canterbury are known through Bede’s Ecclesiastical History of the English People. 

He would ultimately die in Canterbury at the age of approximately 88.

So there you have it. Theodore was born in southern Turkey, lived under both the Persian Sassanid and then the Persian Islamic Empires, studied in Constantinople and then in Rome, and spent over 20 years as the Archbishop of Canterbury. This suggesting the people in the Middle Ages did not travel far from where they were born is simply not accurate.

The Battle of Sekigahara

 The Battle of Sekigahara

 

Today (by one measurement) is the anniversary of the Battle of Sekigahara, it’s taking place in 1600 and being a if not the foundational event in the history of Japan. FYI, an alternative dating is October 21.

 

Sixteenth century Japan, while nominally led by the Emperor, was controlled by regional lords; the Emperor was a figurehead without effective control. The Sixteenth century had seen an ebb and flow of various clans including that of the famous Takeda Shingen. There then arose first Oda Nobunaga, he overthrowing the nominal but ineffective Ashikaga Shogunate and significantly consolidated power in central Japan under his Oda clan.  He was, however, famously forced to commit seppuku (although it is possible he died fighting) during the Honnō-ji Incident (1582) when his retainer Akechi Mitsuhiderevolted and attacked Nobunaga’s weakly defended position.  Mitsuhide was subsequently killer at the Battle of Yamazaki, it taking place some two weeks after Nobunaga”s death.

 

Nobunaga was nominally succeeded by a grandson, Oda Hidenobu, but as he was just a child the fact of his succession was consequent to the support of Toyotomi Hideyoshi, one of his father’s retainers. Having nothing to do with this discussion, Hidenobu would later convert to Catholicism. But I digress.  Toyotomi Hideyoshi would continue Nobunaga’s program of unification, and although a peasant (he was not born a member of the samurai class) he was by means of an astute adult adoption into the Fujiwara Clan appointed to the highest offices in the land including Imperial Regent; however, he could not reinstate the shogunate in himself as not being born a samurai he could not be the chief samurai. In 1592, after the death of his only son, he adopted and appointed as his heir his nephew Hidetsugu. Thereafter, resigning from his Imperial offices, he was known as the Taiko (retired regent). But then in 1593 Hideyoshi has another son, Hideyori, and tension as to the succession grew. Hideyori was 5 years old when Hideyoshi died in 1598.

 

Tokugawa Ieyasu had like Hideyoshi been a retainer and general under Nobunaga, including having fought at the Battle of Yamazaki. After Nobunaga’s death and a bit of back and forth he entered Hideyoshi’s service but on less than a full vassal basis.  When Hideyoshi died Ieyasu was one of the five members of a regency council (Tokugawa Ieyasu, Maeda Toshiie {succeeded in 1599 by his son Maeda Toshinaga}, Ukita Hideie, Uesugi Kagekatsu, and Mori Terumoto) intended to rule Japan until Hideyori came of ago, which was 15. However, relations among the regents broke down and Ieyasu, by far the most powerful of the five, used the pretext of improper actions by Uesugi Kagekatsu to launch a war that culminated in the Battle of Sekigahara. 

 

Ishida Mitsunari led the forces at least nominally loyal to Hideyori, they (the Western Army) comprising by the time of battle some 80,000 soldiers (their force had been larger but there had been on the eve of battle significant defections to Ieyasu’s side).  Ieyasu went into battle with approximately 88,000 troops (the Eastern Army).  In a day that started with heavy fog the forces clashed. As the day progressed there were several notable defections from the Western Army to the Eastern army (maybe 23,000 troops total), in each case weakening the former and strengthening the latter.  In the end the battle lasted between 2 and 4 hoursduring which the Eastern Army suffered between 8,000 and 35,000 deaths while the Eastern Army is estimated to have lost between 4,000 and 10,000. Taking the middle point of the higher of these ranges the Eastern Army, initially not that much different in size from the Eastern Army, suffered 17,500 casualties while Ieyasu’s Eastern Army suffered 5,000.  Ieyasu then began a program of redistribution of territories to favor those who had supported his position as those who were part of the Western Army and who did not defect were stripped of their lands and power. Hideyori was forced to commit seppuku when Ieyasu’s forces laid siege to his remaining forces in Osaka Castle.

 

In 1603 Tokugawa Ieyasu was appointed Shogun by the Emperor, thus starting the Tokugawa Shogunate that would rule Japan until 1868.

 

And thus was Japan unified by the sequential acts of Oda Nobunaga, Toyotomi Hideyoshi, and Tokugawa Ieyasu.

 

For those of you who enjoyed the 2024Shogun tv series (the recent one, not whatever that was circa 1980 with Richard Chamberlain), it is set in this period, but significant aspects of it, well, lets just say they depart from the historic record in order to tell a story.  There was an English sailor, a navigator, named William Adams who was a retainer to Tokugawa Ieyasu.  The chronology of his arrival and place in the Tokugawa court do not match that in the tv series or Clavell’s book.

 

Battle of Marathon (490 b.c.)

 Athenian Forces Defeat Invading Persians at Marathon

      Today might be the anniversary of the great battle, fought in 490 b.c. at Marathon, at which the forces of Athens defeated the Persian invasion sent by Darius the Great. The exact date of the battle is subject to controversy, although there is something of an alternative consensus on the 21st.

      At the time of the battle, the Persian Empire extended from the western boundaries of what is today India across the Middle East, Turkey and to Southwest Europe.  Darius had decided that the land we refer to today as Greece, inhabited by a variety of city-states, would be next incorporated into his empire.  The fact that various of the Greek city-states were supporting rebellious territories in what is today Western Turkey and the Mediterranean probably had a big role in that decision.  An invasion fleet landed its troops some twenty-six miles northeast of Athens at the Bay of Marathon.  Working with collaborators in Athens, it was thought that the army could be drawn away and destroyed even as the collaborators led an internal revolt, taking control of the city and making it available to Darius.  It would not turn out that way.

      At news of the landing, Athens sent word to Sparta seeking its assistance, the Spartan hoplite troops being the strongest force in the region.  Famously, the Spartans were unwilling to send their forces in light of an upcoming religious festival. In consequence, Athens would stand alone.  The Athenian army, well smaller than that of the Persian forces, camped facing their enemy for over a week.  On the 8th day, seeing that the Persians were re-embarking some troops onto ships and fearing that they intended to launch a direct assault on Athens, the Greek forces attacked.  Although outnumbered, by skillful flanking maneuvers the Greeks were able to envelop the Persian forces.  While the historical records recite what must be grossly inflated figures, certainly the Persians lost in excess of 6,000 men while the Greeks lost fewer than 200.

Although not recounted in the contemporary historic record, a runner, Pheidippides, took off to announce the victory to Athens.  Just over 26 miles later, he entered the city, announced “nickomen” (“victory”) and dropped dead from exhaustion.  Meanwhile, the balance of the Persian army embarked on their ships and set out from the Bay of Marathon with the intent of directly attacking Athens.  The Athenian army force-marched itself back to the city, manning its walls as the Persian fleet approached.  The Persians decided that another attack was not in their best interest and they withdrew.  

     A decade after Marathon, the Persian forces under Xerces, son of Darius, would again invade Greece.  They would ultimately fall victim to the Spartan and allied forces at Thermopylae, the Greek naval forces at Salamis and again the allied forces at Plataea.

            As for the famous runner bring news of victory, probably not.  The runner to Athens after the Battle of Marathon is not supported in the historic record, and is first recorded in the writings of the Roman Lucian. Lucian lived in the Second Century a.d., so generously there were six hundred thirty years between the Battle of Marathon and Lucian drafting the first report of this event.

And So Begin the Middle Ages

 And So Begin the Middle Ages

      By a certain measure, today marks the anniversary of the date in 476 from which the “Middle Ages” may be dated.  On this day, the last emperor of the Western Roman Empire, Romulus Augustus, who was little more than a child and was completely controlled by his father, Orestes, the Magister Militum of the Roman military, was deposed by Odoacer. Orestes had little standing to complain about the over-throw of his son's reign - Orestes had revolted against the prior emperor and put his son on the imperial throne.  

      With Romulus' resignation the imperial regalia was packed up and shipped off to Byzantium.  With this event, the Western Roman Empire ceased to exist, its fragments now under control of various “barbarian” tribes.

 

The Battle of Crecy

 

Today is the anniversary of the Battle of Crecy, it taking place in 1346 as part of the Hundred Years War (a later developed label that would have mystified its participants and contemporaries). One of the three defining battles of that conflict, the others being Poitiers (1356) and Agincourt (1415), the English decisively prevailed at each. Still they lost the Hundred Years War.

 

The English army, under the direct command of King Edward III and including amongst its nobles his son Edward the Prince of Wales (a/k/a the Black Prince so named because of the blackened steel of his armor), had landed in the Cherbourg Peninsula at St. Vaast de Hogue and proceeded to march across Normandy. St. Lo and Caen, both known to students of the D-Day invasion of 1944, were in Edward’s path of pillage; Caen was captured and looted for five days. The spoils of war were loaded into Edward’s fleet and dispatched back to England with orders to collect more men and equipment and meet him at Le Crotoy at the mouth of the Somme.

 

Continuing the ongoing pillage , just short of Rouen they turned south towards Paris, but did not proceed past Poissey (20 miles from Paris) as his army there crossed the Seine, the crossings further north having been destroyed in an effort to deprive Edward of an opportunity to proceed further north. Still, the complete failure of the French forces was feared, a general levy was ordered, and plans for the defense of Paris were prepared. 

 

Having crossed the Seine, Edward’s forces moved generally north-east towards their goal of Le Crotoy, crossing the Somme river at Blanchetaque where they defeated a French defensive force on the river’s north bank. After maneuvering between the forces the French under the command of King Phillip VI thought they had pinned down the English forces, thereby forcing a direct battle. Be careful what you ask for.

 

Determining the number of combatants in medieval warfare is notoriously difficult with many ranges being up to 100%. Crecy is no exception; the English forces are estimated to have been between a low of 7000 and a high of 15,000. Jonathan Sumption, author of a monumental five-volume history of the Hundred Years War, put the English forces at between 7000 and 10,000. Regardless they were clearly outnumbered; the French forces were somewhere in the range of 20,000 to 30,000.

 

Edward picked the site of the battle, positioning his line uphill from the  expected advance of the French. In preparation his forces set up some primitive small cannon and as well dug holes through the hill to interrupt any cavalry charge. Likely the archers were protected by sharpened stakes driven into the ground at an angle, especially useful against cavalry. Once in place the English settled into position and rested, awaiting the expected French attack. The Black Prince commanded one of the forward elements; Edward III was in the rear with a reserve force.

 

While the why is less than clear, it is clear that French discipline failed and what could have been an organized attack by an overwhelming force became a string of uncoordinated actions without a unifying plan or mutual support. Initially a mercenary force of Italian crossbow men largely if not exclusively from Genoa engaged, but without the heavy wooden shields they needed for protection while reloading; a crossbow could fire maybe twice a minute during which time a Welsh bowman could unleash ten arrows at significantly longer range. In addition, it rained, and the softened ground made it more difficult to reload the crossbows. The crossbow men retreated, pushing against the other forces moving forward who thought them cowards and killed many of them. Meanwhile the forward edge of the French forces were in range of the English bows.

 

Having pushed their way to the front, French mounted knights and men at arms initiated a cavalry charge. Uphill. Across ground recently rained upon and containing trenches and holes dug by the English to impede a cavalry charge. It went as well as you might expect. While likely most of the mounted soldiers had some plate armor, particularly helmets, padded tunics and chain mail were still predominant, and at 200/250 feet a longbow’s arrow could penetrate even plate. Even more vulnerable were the unarmored horses, and each one that fell brought down not only its rider but as well impeded the horses behind it. No doubt wounded and terrified horses ran thru the French forces further shattering its cohesion. The few French forces who survived the cloud of arrows to reach the English line were dispatched in hand to hand combat.

 

That was just the first wave. As more French forces arrived they organized and launched further calvary charges. Again uphill. Again over wet ground, now impeded not just by English dug trenches and holes but by the bodies of dead men and horses and against the force of retreating men and horses. Into the face of archers who knew they were winning, who knew that not winning meant certain death, and who had the experience against the first cavalry charge to inform how to handle each that followed. The same fate awaited those few French who survived the arrows of the long bowmen and reached the English line. And it happened again. And again. The charges continued through dusk into the night, perhaps as late as midnight. King Phillip was injured by an arrow to his jaw, and the French battle standard, the Oriflamme, was captured. Finally the French just stopped attacking.

 

The total number of prisoners taken that day by the English forces is a rare clearly quantified figure: zero.

 

The next day various English forces sallied forth to attack, killing perhaps another 2000.

 

The total French casualties are unknown; the English heralds counted 1542 nobles among the dead. Credible estimates of up to 4000 men at arms and 10,000 common soldiers are supported. As for the English, they lost 300 or fewer.

 

The English army, morale no doubt boosted by their victory at Crecy, continued on its route and would besiege for eleven months and capture Calais, it remaining English territory until lost in January, 1558 during the reign of Queen Mary Tudor.

 

A good single volume review is The Battle of Crecy (1346), a collection of essays edited by Andrew Ayton and Philip Preston. That said, Jonathan Sumption’s five-volume history of the Hundred Years War (The Hundred Years War I – Trial by Battle; The Hundred Years War II – Trial by Fire; The Hundred Years War III – Divided Houses;The Hundred Years War IV – Cursed Kings; and The Hundred Years War V - Triumph and Illusion) is without compare.

 

Today Is Not a Good Day in History

On this day in 1290 Edward I issued the Edict of Expulsion of all Jews from England; the deadline for leaving was November 1 of the same year.  It would not be undone until the middle of the seventeenth century. Edward said he was acting to protect the Christian (Catholic) community from the nefarious influence of the Jewish community as he endorsed the blood libel cult of (Little Saint) Hugh of Lincoln, all following Henry III’s 1253 Statute of Jewry. 

Then, on this day in 1925 a former Austrian army corporal and failed artist published a memoir laced with the hate that would embroil the world in a conflict that directly killed millions and reordered the international order.  

Sometimes history requires that we hang our heads and reflect.

"Miller and Rutledge are right"

 “Miller and Rutledge are right.”

In 2025 Professor Beth Miller and I wrote an article on whether and how the business judgment rule (the “BJR”) applies in the context of LLC, namely: Elizabeth S. Miller and Thomas E. Rutledge, The Duty of Finest Loyalty and Reasonable Decisions: The Business Judgment Rule in Unincorporated Business Organizations, 30 Delaware Journal of Corporate Law 343 (2005). Recently that article was cited by Judge Gall of the Nevada District Court (Clark County) in her July 3, 2025, decision in Silva v. Clay, Case No. A-25-909767-B, (District Ct. Clark Cnty. Nev., July 3, 2025) At this time it does not appear the decision is available on any of Westlaw, Lexis or Google Scholar.

The dispute is a classic falling out between the members following allegations of diversion of company funds with the typical panoply of allegations of breach of the duties of care and loyalty, the obligation of good fait and fair dealing (which in this operating agreement is set forth as a fiduciary duty), conversion, oppression, deceptive trade practices, etc. See Slip op at 3-4.

The point at issue in this aspect of the decision is whether the presumption of the BJR applies in the context of an LLC. In Nevada the BJR has been reduced to statute in the business corporation act (NV Stat. § 78.138(3)) but there is no similar provision in the LLC Act. In this instance the operating agreement detailed what were the fiduciary duties in this LLC (formulae different than those in the LLC Act itself) but without referencing the BJR. So did it apply (as the defendants asserted) or not (as the plaintiff asserted)?  The answer to that question would in turn inform whether Silva had plead his various allegations with sufficient specificity to clear the bar of the motion to dismiss filed by the defendants. Cutting to the chase, Judge Gall wrote:

The court has reviewed the Operating Agreement.  While the court agrees with Silva that the Operating Agreement does not expressly set forth a business judgment rule or similar presumption, the court finds that by adopting fiduciary duties at Articles 6.1, 6.2, and 6.3, the members incorporated the business judgment rule to assess whether they breached those duties. Slip op. at 5.

In our article we argued that the BJR is a rule of corporate law that does not carry over to the highly contractual realm of LLCs; if you want that rule as part of your fiduciary provisions then write it into the operating agreement. However, we stipulated an exception to that “four corners” analysis when:

[I]f the agreement in question incorporates a corporate standard of care (either by reciting the corporate formulation in the document or by a statement to the effect that those in control of the unincorporated business are subject to the standards of a corporate director), and the state law applies the business judgment rule, it would be appropriate to apply the rule to the actions of those acting on behalf of the unincorporated association. While doing so involves an assumption that the drafter meant to incorporate the business judgment rule, it has a greater assumption to determine that the drafters sought to reject the standard of review applied to that standard of care.  Slip op. at 6, quoting 30 Del. J.  Corp. L at 384.

There then followed my favorite phrase from this decision, namely “Miller and Rutledge are right.” Slip op. at 6.  Judge Gall went on to observe:

It makes no sense to incorporate a duty of care without applying the business judgment rule to determine whether that duty has been breached - at least not without leading to an absurd result. With the fiduciary standard in one hand but without the business judgment rule in the other, the fact Finder is left to determine whether the complaint of transaction could have gone better period this is what the business judgment rule is meant to stop; otherwise, business will simply stop as disgruntled stockholders and members repeatedly asked the court to step in the place of business fiduciaries and second-guess decisions made by those who are better positioned to act on behalf of the company.

she then going on to quote Wynn Resorts, Ltd. V. Eighth Jud. Dist. In & for Cnty of Clark, 133 Nev. 369, 378, 399 P.3d 334, 344 (2017):

Accordingly, we reiterate that the business judgment rule goes beyond shielding directors from personal liability in decision-making. Rather, it also ensures that courts defer to the business judgment of corporate executives and prevents courts from substituting their own notions of what is or is not sound business judgment if the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.

Reiterating her conclusion as to the application of the BJR, Judge Gall wrote “Thus, the business judgment rule applies in assessing the sufficiency of Silva’s pleading breach of fiduciary duty claims.”  Slip op. at 8.

As to the substantive review of the claim for breach of the duty of care, the opinion (Slip op. at 10-11) provides:

Article 6.2 of the Operating Agreement sets forth a member’s duty of care as follows: 

In carrying out his duties and exercising his powers hereunder, each Member shall act in a manner he believes in good faith to be in the best interests of the Company and with the care an ordinarily prudent person in a like position would exercise under similar circumstances. Subject to the preceding sentence, no Member shall be liable, responsible, or accountable in damages or otherwise to the Company or the other Members for any acts performed or omitted by him in good faith and within the scope of this Agreement.

Silva alleges that the Member Defendants breached their duty of care “both with respect to CPI and to Silva, by acting to improperly enrich themselves.” This allegation, however, invokes the duty of loyalty, not the duty of care [case citation omitted].

In Silva's opposition, he argues that his duty of care claims against the Member Defendants go beyond mere improper enrichment, to include: (1) ignoring distribution requirements to enrich themselves by diverting funds to other entities; (2) terminating Silva from his officer position and then terminating Silva’s membership interest and pocketing compensation tied to that interest; and (3) something about Freeman, although it is not incredibly clear whether that something has to do with hiring Freeman in the first instance or mow seeking to dismiss the derivative claims Plaintiff makes against her.  

Again, Sylva's allegations concerning the diversion of funds sound in breach of the duty of loyalty, not duty of care.  Also, it is entirely unclear to the court what duty of care allegations Silva makes about Freeman. Regardless, Silva is not alleging particularized facts to show that the Member Defendants’ decisions about Freeman - whatever they are may be - are grossly negligent or uninformed. Silva has also failed to allege particularized facts, or any facts, that show the Member Defendants terminated him from his office or position or terminated his membership interests on a uninformed or grossly negligent basis. [citation omitted] Instead, Silva merely alleges that the Member Defendants undertook actions inconsistent with the Operating Agreement. His claim is better suited as one for breach of the Operating Agreement. 

Thus, Silva's duty of care claim does not survive the motion to dismiss.

The opinion goes on to provide a useful review of the direct versus derivative distinction, the treatment of “good faith and fair dealing” as a contractual versus a fiduciary claim, and the categorization of certain claims as implicating either the duty of loyalty or the duty of care.