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May, 2013

The Market for Preclusion in Merger Litigation

May. 23, 2013—The recent finding that corporate litigation involving Delaware companies very often takes place outside of Delaware disturbed the long-settled understanding of how merger litigation works. With many, even most, cases being filed and ultimately resolved outside of Delaware, commentators warn that the trend is a threat to shareholders, to Delaware, and to the integrity of...

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Against Proportional Punishment

May. 23, 2013—The Supreme Court has held that pretrial detainees are presumed innocent and that their detention does not constitute punishment. If convicted, however, detainees usually receive credit at sentencing for the time they spent in detention. We reduce their punishment by time spent unpunished. Crediting time served conflicts with the commonly held view that punishment should...

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Governing the Anticommons in Aggregate Litigation

May. 23, 2013—This Article argues that there is an “anticommons” problem in aggregate litigation. An anticommons occurs when the consent of too many owners is needed to use a resource at its most efficient scale. When many plaintiffs have similar claims against a common defendant, those claims are often worth more if they can be bundled up...

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