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Delaware Supreme Court Affirms Pleading-Stage Dismissal of Control Stockholder Buyout Litigation

Feb. 11, 2016—Delaware Supreme Court Affirms Pleading-Stage Dismissal of Control Stockholder Buyout Litigation 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 York City since his retirement as a partner in April 2011. Lauren Messonnier Meyers...

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Decriminalization, Regulation, Privatization: A Response to Professor Natapoff

Jan. 28, 2016—Decriminalization, Regulation, Privatization: A Response to Professor Natapoff Response to Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055 (2015). AUTHOR O.M. Vicars Professor of Law, University of Virginia School of Law.

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The Commensurability Myth in Antitrust

Jan. 15, 2016—The Commensurability Myth in Antitrust ABSTRACT Modern antitrust law pursues a seemingly unitary goal: competition. In fact, competition—whether defined as a process or as a set of outcomes associated with competitive markets—is multifaceted. What are offered in antitrust cases as procompetitive and anticompetitive effects are typically qualitatively different, and trading them off is as much...

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Incarceration Incentives in the Decarceration Era

Jan. 15, 2016—Incarceration Incentives in the Decarceration Era ABSTRACT After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration...

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The Regulatory Contract in the Marketplace

Jan. 15, 2016—The Regulatory Contract in the Marketplace ABSTRACT For decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets, while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract—a nineteenth-century concept that stands more...

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The Great Balancing Act: The Effect of the America Invents Act on the Division of Power Between the Patent and Trademark Office and the Federal Circuit

Jan. 15, 2016—The Great Balancing Act: The Effect of the America Invents Act on the Division of Power Between the Patent and Trademark Office and the Federal Circuit ABSTRACT The United States Constitution grants Congress broad authority to issue patents and effect patent policy, and Congress primarily delegates this authority to two actors: the United States Patent and...

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The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant

Jan. 15, 2016—The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant ABSTRACT For fifty years, Griffin v. California has denied prosecutors the tactical ability to comment on a defendant’s invocation of her Fifth Amendment right to silence as substantive evidence of guilt. However, a defendant’s right to silence is...

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Sell-Side Financial Advisors in the M&A Crosshairs

Dec. 6, 2015—Sell-Side Financial Advisors in the M&A Crosshairs 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 York City since his retirement as a partner in April 2011. Stephanie Stroup Estey Vanderbilt University Law...

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Delaware Supreme Court Rejects Piecemeal Approach to Analyzing Director Independence

Dec. 1, 2015—Delaware Supreme Court Rejects Piecemeal Approach to Analyzing Director Independence 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 York City since his retirement as a partner in April 2011. Lauren Messonnier Meyers...

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High Value Lies, Ugly Truths, and the First Amendment

Nov. 23, 2015—High Value Lies, Ugly Truths, and the First Amendment AUTHORS Alan K. Chen William M. Beaney Memorial Research Chair and Professor of Law, University of Denver Sturm College of Law. Justin Marceau Animal Legal Defense Fund Professor of Law, University of Denver Sturm College of Law. The authors would like to thank Ashutosh Bhagwat, Richard...

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An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law

Nov. 23, 2015—An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law ABSTRACT Private entities often administer federal law. The early-twentieth-century Supreme Court derived constitutional limits to delegations of administrative power to private entities, grounding them in Article I of the Constitution where legislative power is delegated and in the Due Process Clause where the delegee’s...

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How Algorithmic Trading Undermines Efficiency in Capital Markets

Nov. 23, 2015—How Algorithmic Trading Undermines Efficiency in Capital Markets ABSTRACT This Article argues that the rise of algorithmic trading undermines efficient capital allocation in securities markets. It is a bedrock assumption in theory that securities prices reveal how effectively public companies utilize capital. This conventional wisdom rests on the straightforward premise that prices reflect available information...

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Curb Your Enthusiasm for Pigovian Taxes

Nov. 23, 2015—Curb Your Enthusiasm for Pigovian Taxes ABSTRACT Pigovian (or “corrective”) taxes have been proposed or enacted on dozens of harmful products and activities: carbon, gasoline, fat, sugar, guns, cigarettes, alcohol, traffic, zoning, executive pay, and financial transactions, among others. Academics of all political stripes are mystified by the public’s inability to see the merits of...

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In Praise of Ex Ante Regulation

Nov. 23, 2015—In Praise of Ex Ante Regulation ABSTRACT Timing is an important consideration in regulatory design. Corrective taxes are usually imposed before or contemporaneously with the harmful activity they are aimed at preventing, while tort awards are assessed ex post, in its aftermath. Patents and research grants both can encourage innovation, but patents pay off only...

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A Laboratory of Regulation: The Untapped Potential of the HHS Advisory Opinion Power

Nov. 23, 2015—A Laboratory of Regulation: The Untapped Potential of the HHS Advisory Opinion Power ABSTRACT Facing mounting cost and quality pressures, healthcare providers are in a difficult position. The rigid structure of the federal anti-kickback statute compounds the problem by restricting providers’ abilities to pursue innovative business arrangements in response to those pressures. Recognizing the need for thoughtful experimentation with...

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Efficiency Run Amok: Challenging the Authority of Magistrate Judges to Hear and Accept Felony Guilty Pleas

Nov. 23, 2015—Efficiency Run Amok: Challenging the Authority of Magistrate Judges to Hear and Accept Felony Guilty Pleas ABSTRACT Since the passage of the Federal Magistrates Act in 1968, district judges with overloaded dockets have been able to delegate many of their most time-consuming duties to magistrate judges. In theory, this system allows district judges to spend...

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