October, 2010
Transforming the Allocation of Deal Risk Through Reverse Termination Fees
Oct. 28, 2010—Buyers and sellers in strategic acquisition transactions are fundamentally shifting the way they allocate deal risk through their use of reverse termination fees (“RTFs”). Once relatively obscure in strategic transactions, RTFs have emerged as one of the most significant provisions in agreements that govern multi-million and multi-billion dollar deals. Despite their recent surge in acquisition...
Erie and Federal Criminal Courts
Oct. 28, 2010—Today, low-level state and local criminal provisions figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to seize individuals has been the subject of extensive commentary, this Article provides...
The Puzzle of Brandeis, Privacy, and Speech
Oct. 28, 2010—Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis—his 1890 Harvard Law Review article The Right to Privacy and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech...
Common Agency and the Public Corporation
Oct. 28, 2010—Under the standard agency theory applied to corporate governance, active monitoring of manager-agents by empowered shareholder-principals will reduce agency costs created by management shirking and expropriation of private benefits. But while shareholder power may result in reduced managerial expropriation, an analysis of how that power is often exercised in public corporation governance reveals that it...