April, 2018
Breaking the Binary: How Shifts in Eighth Amendment Jurisprudence Can Help Ensure Safe Housing and Proper Medical Care for Inmates with Gender Dysphoria
Apr. 18, 2018—Breaking-the-Binary ABSTRACT The Eighth Amendment prohibition against imposing cruel and unusual punishments requires correctional facilities to provide their inmates adequate medical care and reasonably safe housing accommodations. Those with gender dysphoria have unique needs and vulnerabilities related to housing and healthcare while incarcerated. Under the current framework for adjudicating inmates’ Eighth Amendment claims, defendants are...
Consenting to Adjudication Outside the Article III Courts
Apr. 18, 2018—Consenting-to-Adjudication-Outside-the-Article-III-Courts ABSTRACT Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article...
Can a Court Change the Law by Saying Nothing?
Apr. 18, 2018—Can-a-Court-Change-the-Law-by-Saying-Nothing ABSTRACT Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court’s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law’s...
Procedural Design
Apr. 18, 2018—Procedural-Design ABSTRACT The procedural law dictates the sequence of steps that bring a lawsuit from filing to completion. The design of civil procedure in the federal courts is generally described as having the following sequential order: complaint, motion to dismiss, discovery, summary judgment, trial, and finally, appeal. While this is a passable description of the...
Private Benefits in Public Offerings: Tax Receivable Agreements in IPOs
Apr. 18, 2018—Private-Benefits-in-Public-Offerings-Tax-Receivable-Agreements-in-IPOs ABSTRACT Historically, an initial public offering (“IPO”) was a process whereby a company sold all of its underlying assets to the public. A new tax innovation, the “tax receivable agreement” (“TRA”), creates private tax benefits in public offerings by allowing pre-IPO owners to effectively keep valuable tax assets for themselves while selling the rest...
The Constitutional Case for Chevron Deference
Apr. 18, 2018—The-Constitutional-Case-for-Chevron-Deference ABSTRACT Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Essay shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An...
A Taste of Their Own Medicine: Examining the Admissibility of Experts’ Prior Malpractice Under the Federal Rules of Evidence
Apr. 18, 2018—A-Taste-of-Their-Own-Medicine ABSTRACT Expert witnesses play an important role in medical malpractice cases by persuading juries to adopt a theory favorable to their party. Their credibility and competency influence the jury’s decision, so parties seek to discredit opposing experts through cross-examination about their own malpractice as a provider of medical care. This evidence suggests a propensity...
Combating the Enemy Within: Regulating Employee Misappropriation of Business Information
Apr. 18, 2018—Combating-the-Enemy-Within ABSTRACT Technological advancements vastly improve efficiency and productivity in the workplace. However, technology also brings with it the ability to transmit mass amounts of business information with ease. As technology continues to evolve and become increasingly prevalent in the modern workplace, the insider presents a considerable threat to employers. In fact, employers increasingly face...
Delaware Court Summons Corwin to Dismiss Breach of Fiduciary Duty Claim Grounded in Allegations of Director Self-Interest in Connection with Merger
Apr. 4, 2018—Delaware-Court-Summons-Corwin-to-Dismiss-Breach-of-Fiduciary-Duty-Claim-Grounded-in-Allegations-of-Director-Self-Interest-in-Connection-with-Merger AUTHOR Robert S. Reder Professor of the Practice of Law at Vanderbilt University Law School, has been serving as a consulting attorney at Milbank, Tweed, Hadley & McCloy LLP in New York City since his retirement as a partner in April 2011. Miron Klimkowski Vanderbilt University Law School, JD Candidate, May 2018.
Delaware Court Determines Corwin Not Available to “Cleanse” Alleged Director Misconduct Due to “Structurally Coercive” Stockholder Vote
Apr. 4, 2018—Delaward-Court-Determines-Corwin-Not-Available-to-Cleanse-Alleged-Director-Misconduct-Due-to-Structurally-Coercive-Stockholder-Vote ABSTRACT Stockholder vote structured as a choice between accepting unrelated transactions benefiting a large stockholder or forgoing beneficial M&A transactions judged “structurally coercive” AUTHOR Robert S. Reder Professor of the Practice of Law at Vanderbilt University Law School, has been serving as a consulting attorney at Milbank, Tweed, Hadley & McCloy LLP in New...
Delaware Supreme Court Reverses Dismissal of Fiduciary Breach Claims Against Target Company Directors
Apr. 4, 2018—Delaware-Supreme-Court-Reverses-Dismissal-of-Fiduciary-Breach-Claims-Against-Target-Company-Directors ABSTRACT Determines that Corwin did not warrant early dismissal because tendering stockholders were not “fully informed” of the reasons underlying Board Chairman’s abstention AUTHORS Robert S. Reder Professor of the Practice of Law at Vanderbilt University Law School, has been serving as a consulting attorney at Milbank, Tweed, Hadley & McCloy LLP in New...