En Banc Category
The Use of Cultural Authority in Constitutional Argument
Jul. 30, 2021—Andrew Jensen Kerr | 74 Vand. L. Rev. En Banc 215 (2021) | In this paper I reconcile the need for legal validity with the aspirations of popular constitutionalism, that is that the American people should be a source of authority as to the meaning of our Constitution. The Supreme Court has long relied on...
Rationalizing a Spousal Confidential Communications Privilege Fit for the Twenty-First Century
Jul. 20, 2021—Emily Crawford Sheffield | 74 Vand. L. Rev. En Banc 187 (2021) | For the spousal confidential communications privilege to be rationalized in the twenty-first century, the privilege must first be limited to apply only to the witness-spouse’s election of invocation. By refocusing the privilege’s protections onto only the witness-spouse, the modern societal values of...
Separation of Powers Versus Checks and Balances in the Criminal Justice System: A Response to Professor Epps
Jul. 19, 2021—Carissa Byrne Hessick | 74 Vand. L. Rev. En Banc 159 (2021) | Separating powers between the three different branches of government serves an important role in the criminal justice system: It helps to protect individual liberty. Separation of powers provides that protection because it requires multiple and diverse actors to agree that a person...
Trading Pharma Goods The WTO Legal Framework
Jul. 6, 2021—Neeraj Rajan Sabitha & Petros C. Mavroidis | 74 Vand. L. Rev. En Banc 145 (2021) | In their thoughtful piece, Thomas Bollyky and Aaron Kesselheim advance an argument aimed to solve the persistent shortages in generic drugs in the United States.1 We want to take one step back and provide a complementary argument regarding...
Our Imperial Federal Courts
Jun. 20, 2021—Matthew Steilen | 74 Vand. L. Rev. En Banc 125 (2021) | “The article is significant for the archival work alone. It is useful, as well, for the impressive synthesis of the existing secondary literature, collected in the footnotes, which makes a convenient reading list for us mere mortals. The argument of the article is ambitious....
The SG’s Indefensible Advantage: A Comment on The Loudest Voice at the Supreme Court
May. 4, 2021—Lincoln Caplan | 74 Vand. L. Rev. En Banc 97 (2021) | It is time for a fundamental reconsideration of the SG’s role—by outstanding scholars like Richard Lazarus, Michael McConnell, Joshua Schwartz, David Strauss, and others who have practiced law in the SG’s office and have studied and written about the role; by other scholars...
Chancery Court Employs Context-Driven Analysis in Adopting Nuanced Interpretations of DGCL Provisions
Apr. 29, 2021—Robert S. Reder | 74 Vand. L. Rev. En Banc 85 (2021) | In Stream TV, Vice Chancellor Laster addressed aspects of the DGCL which previously had received scant attention in the Delaware courts. Employing a context-driven approach to statutory interpretation, the Vice Chancellor arrived at nuanced explanations of two provisions of the DGCL whose...
No Corwin, No Problem: Chancery Court Discusses Revlon’s Role in Analyzing Post-Closing Damages Claims Against Target Company Directors
Mar. 12, 2021—Robert S. Reder & Spencer H. Lutz | 74 Vand. L. Rev. En Banc 71 (2021) | The Vice Chancellor’s opinion offers perhaps the clearest explanation to date of how damages claims asserting breach of so-called “Revlon duties” will be analyzed post-Corwin. As Corwin instructs, “Revlon ‘duties’ should not be confused with the Revlon standard...
Chancery Court Denies Pleading-Stage Dismissal Under Corwin due to Presence of Control Group
Mar. 12, 2021—Robert S. Reder & Robert W. Dillard | 74 Vand. L. Rev. En Banc 61 (2021) | Garfield further limits the reach of Corwin: even if all the elements are met, the presence of a “control group” realizing benefits from a transaction not shared with other stockholders negates the availability of Corwin. In light of...
Failure to Satisfy Four Prongs of MFW Framework Dooms Pleading-Stage Dismissal of Claims Arising from Controlling Stockholder-Led Redemption of Minority Shares
Mar. 12, 2021—Robert S. Reder & Kirby W. Ammons | 74 Vand. L. Rev. En Banc 47 (2021) | Dell Technologies offers significant guidance to dealmakers and their legal counsel for structuring commercial transactions involving controlling stockholders. Vice Chancellor Laster’s comprehensive opinion demonstrates that simply paying lip service to the “six necessary and sufficient conditions for obtaining...
Chancery Court Questions Whether Nominally Designated “Independent” Directors Satisfied Requirements of Stockholders Agreement
Mar. 12, 2021—Robert S. Reder & Eunice (Chan Mi) Lim | 74 Vand. L. Rev. En Banc 37 (2021) | Chancellor Bouchard’s blanket rejection of the Coty Stockholder Litigation defendants’ motions to dismiss demonstrates the Chancery Court’s refusal blindly to accept procedural safeguards purportedly put in place to protect minority stockholders. Instead, in the face of well-pled...
Chancery Court Again Rejects Motion by Large Minority Blockholder to Dismiss Fiduciary Breach Claims Under Corwin
Feb. 5, 2021—Robert S. Reder & G. Parker Kolodka | 74 Vand. L. Rev. En Banc 25 (2021) | Vice Chancellor Slights’s extension of the inherent coercion doctrine to the summary judgment phase in Tesla II demonstrates the risks faced by dealmakers who hope to rely on a Corwin defense when a potential controlling stockholder is in...
Chancery Court—Reiterating High Bar for Proving “MAE”—Requires Buyer to Honor Its Obligations Under Acquisition Agreement
Feb. 5, 2021—Robert S. Reder & Bailey R. Vincent | 74 Vand. L. Rev. En Banc 13 (2021) | Akorn, rather than straying from Chancery Court precedent, reiterated that the occurrence of a circumstance worthy of an MAE is rare. In Channel Medsystems, Channel’s ability ultimately to win FDA approval of the Product, coupled with BSC’s suspect...
Chancery Court Dismisses Revlon Claims Without Considering Directors’ Potential Corwin Defense
Jan. 25, 2021—Robert S. Reder & Anna Choi | 74 Vand. L. Rev. En Banc 1 (2021) | Essendant reinforces the heightened pleading standard a stockholder-plaintiff must overcome to survive a motion to dismiss its claims of directorial breach of fiduciary duty in the Revlon context. Absent well-pled facts challenging a board’s independence, disinterestedness, or good faith...
Chancery Court Refuses to Alter Contractual Allocation of Risk Between Sophisticated Parties
Dec. 30, 2020—Robert S. Reder & Marissa L. Barbalato | 73 Vand. L. Rev. En Banc 275 (2020) | In her opinion, Vice Chancellor Zurn instructed that Julius v. Accurus “teaches an important lesson about the benefits of allocating risk among contracting parties and detriments of imprecise drafting.” In essence, the Buyers were in search of a...
Despite Lack of Control Stockholder, Chancery Court Applies M&F’s “Ab Initio” Requirement in Determining Whether Independent Committee Recommendation Cleansed Transaction Approved by Conflicted Board
Dec. 30, 2020—Robert S. Reder & Colton Tyler Haney | 73 Vand. L. Rev. En Banc 265 (2020) | Salladay discusses the options available to corporate dealmakers and their legal counsel to obtain business judgment review—and ultimately pleading-stage dismissal—of conflicted transactions. If a controlling stockholder is to receive benefits from the transaction not shared with the other...