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Will Corporations Deliver Value to All Stakeholders?

May. 18, 2022—Lucian A. Bebchuk & Roberto Tallarita | 75 Vand. L. Rev. 1031 (2022) | Amid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance advocate relying on corporate leaders to use their discretion to protect stakeholders, and they seem to take corporate pledges to do so at face value. By contrast, critics...

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The Inequity of Informal Guidance

May. 18, 2022—Joshua D. Blank & Leigh Osofsky | 75 Vand. L. Rev. 1093 (2022) | The coexistence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as...

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Authoring Prior Art

May. 18, 2022—Joseph P. Fishman & Kristelia García | 75 Vand. L. Rev. 1159 (2022) | Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is...

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Nondelegation in the States

May. 18, 2022—Benjamin Silver | 75 Vand. L. Rev. 1211 (2022) | American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation....

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Deliberately Indifferent: Institutional Liability for Further Harassment in Student-on-Student Title IX Cases

May. 18, 2022—Jacob R. Goodman | 75 Vand. L. Rev. 1273 (2022) | Sexual harassment is an unfortunate problem far too many have experienced. Universities and other educational institutions owe a duty, both legal and moral, to protect students from sexual harassment, and in turn to allow students to receive the full benefits of their education. But a...

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Finding the Boundaries of Equitable Disgorgement

May. 18, 2022—Cameron K. Hood | 75 Vand. L. Rev. 1307 (2022) | The disgorgement of “ill-gotten gains” is a significant mechanism for enforcing the securities laws. By compelling a violator of the securities laws to forfeit their illegal proceeds, disgorgement serves as a strong deterrent for securities fraud and an important method by which investors are compensated...

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Democracy and Disenchantment

May. 17, 2022—Ashraf Ahmed | 75 Vand. L. Rev. En Banc 223 (2022) | This piece is a response to Ryan D. Doerfler & Samuel Moyn, The Ghost of John Hart Ely, 75 VAND. L. REV 769 (2022). The Ghost of John Hart Ely is Doerfler and Moyn’s latest salvo against American judicial review. This time, however, their...

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Hunting for Nondelegation Doctrine’s Snark

May. 17, 2022—Roderick M. Hills, Jr. | 75 Vand. L. Rev. En Banc 215 (2022) | This piece is a response to Ben Silver, Nondelegation in the States, 75 VAND. L. REV. 1211, 1221 (2022). There is much to like about Silver’s article: it is analytically sharp, doctrinally comprehensive, and written with clarity and grace. Moreover, on...

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Can Better Juries Fix American Criminal Justice?

May. 17, 2022—Darryl K. Brown | 75 Vand. L. Rev. En Banc 205 (2022) | This piece is a response to Daniel Epps & William Ortman, The Informed Jury, 75 VAND. L. REV. 823 (2022). Professors Daniel Epps and William Ortman argue that it could. In their Article The Informed Jury, Epps and Ortman propose that trial...

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CHANCERY COURT DECLINED TO APPLY BLASIUS “COMPELLING JUSTIFICATION” STANDARD IN SUSTAINING BOARD’S REJECTION OF OPPOSITION SLATE UNDER “COMMONPLACE” ADVANCE NOTICE BYLAW

May. 12, 2022—Robert S. Reder & Gabrielle M. Haddad | 75 Vand. L. Rev. En Banc 195 (2022) | Under § 141(a) of the Delaware General Corporation Law (“DGCL”), “the business and affairs of every corporation . . . shall be managed by or under the direction of a board of directors . . . .” In light of this sweeping grant of authority to...

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CHANCERY COURT PROVIDES ADDITIONAL CLARITY ON DISCLOSURE REQUIREMENTS FOR ESTABLISHING CORWIN DEFENSE

May. 12, 2022—Robert S. Reder & Stanley N. Medlin | 75 Vand. L. Rev. En Banc 187 (2022) | At the other end of the spectrum, as explained by Vice Chancellor Sam Glasscock III in Galindo v. Stover, CA No. 2021-0031-SG (Del. Ch. Jan. 26, 2022) (“Galindo”), “directors need not provide exhaustive information in seeking a stockholder...

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THE WORDS MEAN WHAT THEY SAY: CHANCERY COURT ADHERES TO PLAIN MEANING OF TYPICAL CONTRACT TERMS

May. 12, 2022—Robert S. Reder & Paul W. d’Ambrosio | 75 Vand. L. Rev. En Banc 179 (2022) | In Yatra Online, Inc. v. Ebix, Inc., C.A. No. 2020-0444-JRS (Del. Ch. Aug. 30, 2021), Vice Chancellor Joseph R. Slights III ruled that a merger agreement provision stating “there shall be no liability on the part of any...

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CHANCERY COURT APPLIES “WELL-WORN FIDUCIARY PRINCIPLES” TO ADDRESS “NOVEL ISSUES” PRESENTED BY SPAC DISCLOSURE LITIGATION

May. 12, 2022—Robert S. Reder | 75 Vand. L. Rev. En Banc 167 (2022) | In In Re MultiPlan Corp. S’holders Litig., 268 A.3d 784 (Del. Ch. 2022) (“MultiPlan”), the Delaware Court of Chancery (“Chancery Court”) confronted—for the first time—litigation over one of the most popular devices currently available to privately-held businesses seeking “to access the public...

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MFW FRAMEWORK REQUIRES MAJORITY-OF-MINORITY STOCKHOLDER APPROVAL EVEN WHEN CONTROLLER STRUCTURES TRANSACTION TO AVOID STATUTORY STOCKHOLDER VOTE

May. 12, 2022—Robert S. Reder | 75 Vand. L. Rev. En Banc 157 (2022) | In Berteau v. Glazek, C.A. No. 2020-0873-PAF (Del. Ch. June 30, 2021) (“Berteau”), Vice Chancellor Paul A. Fioravanti, Jr. of the Delaware Court of Chancery (“Chancery Court”) confronted a “novel,” but ultimately “unpersuasive,” theory concerning the judicial standard of review applicable to...

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High-End Bargaining Problems

Apr. 21, 2022—William W. Clayton | 75 Vand. L. Rev. 703 (2022) | Many important areas of the law place great confidence in the ability of contracting parties to bargain effectively. In this Article, I question the wisdom of a formalistic faith in bargaining by identifying flaws in the bargaining process at the high end of the market,...

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The Ghost of John Hart Ely

Apr. 21, 2022—Ryan D. Doerfler & Samuel Moyn | 75 Vand. L. Rev. 769 (2022) | The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of...

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