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The Misuse of Tobin’s q

Mar. 25, 2020—Robert Bartlett & Frank Partnoy | 73 Vand. L. Rev. 353 (2020) | In recent years, scholars have addressed the most important topics in corporate law based on a flawed assumption: that the ratio of the market value of a corporation’s securities to their book value is a valid measure of the value of the...

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Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process

Mar. 25, 2020—Joseph Landau | 73 Vand. L. Rev. 425 (2020) | In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the...

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Patenting New Uses for Old Inventions

Mar. 25, 2020—Sean B. Seymore | 73 Vand. L. Rev. 478 (2020) | A bedrock principle of patent law is that old inventions cannot be patented. And a new use for an old invention does not render the old invention patentable. This is because patent law requires novelty—an invention must be new. But while a new use...

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Shackling Prejudice: Expanding the Deck v. Missouri Rule to Nonjury Proceedings

Mar. 25, 2020—Sadie Shourd | 73 Vand. L. Rev. 535 (2020) | Courts in the United States have traditionally held that criminal defendants have the right to be free from unwarranted restraints visible to the jury during the guilt phase of a trial. The term “unwarranted restraints” refers to the use of restraints on a defendant absent...

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Artistic Justice: How the Executive Branch Can Facilitate Nazi-Looted Art Restitution

Mar. 25, 2020—Paige Tenkhoff | 73 Vand. L. Rev. 569 (2020) | Eight decades after the Holocaust, many pieces of art stolen from Jewish families still sit in the state-owned museums of former Nazialigned regimes. In an effort to right old wrongs, plaintiffs are bringing suit in the United States against the foreign governments who retain the...

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In Defense of Excellence

Jan. 29, 2020—Jasper L. Tran | 73 Vand. L. Rev. En Banc 71 | Reviewed: Anthony T. Kronman, THE ASSAULT ON AMERICAN EXCELLENCE, Free Press 2019. Pp. 272. $27.00 Hardcover. “Up until recently, excellence had been an educational ideal. At the founding of the Catholic University of Ireland in 1852, John Henry Newman envisioned a university as a...

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Chancery Court Indicates Willingness to Extend M&F to Compensation Award to Controlling Stockholder

Jan. 28, 2020—Robert S. Reder & Alexandra N. Bakalar | 73 Vand. L. Rev. En Banc 61 (2020) | PDF Download Link “Delaware courts are tasked with reviewing breach of fiduciary duty claims arising from a variety of commercial transactions. No matter the type of transaction, however, the standard of review applied by the court is all-important...

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Privative Copyright

Jan. 21, 2020—Shyamkrishna Balganesh | 73 Vand. L. Rev. 1 (2020) | “Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as...

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Popular Constitutional Argument

Jan. 21, 2020—Tom Donnelly | 73 Vand. L. Rev. 73 (2020)| Critics have long attacked popular constitutionalists for offering few clues about how their theory might work in practice—especially inside the courts. These critics are right. Popular constitutionalism—as a matter of both theory and practice—remains a work in progress. In this Article, I take up the challenge...

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Misaligned Lawmaking

Jan. 21, 2020—Timothy Meyer | 73 Vand. L. Rev. 151 (2020) | Since 1962, when Congress passed the Trade Expansion Act, every new U.S. trade deal has had the same essential bargain at its core. Congress agrees to give the president the power to lower trade barriers, while at the same time providing adjustment assistance for those...

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Golden Parachutes and the Limits of Shareholder Voting

Jan. 21, 2020—Albert H. Choi, Andrew C.W. Lund & Robert Schonlau | 73 Vand. L. Rev. 223 (2020) | With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, Congress attempted to constrain change-in-control payments (also known as “golden parachutes”) by giving shareholders the right to approve or disapprove such payments on...

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Dissecting Revlon: Severing the Standard of Conduct from the Standard of Review in Post-Closing Litigation

Jan. 21, 2020—Katie Clemmons | 73 Vand. L. Rev. 267 (2020) | In Corwin v. KKR Financial Holdings LLC and its progeny, the Delaware courts made clear that a fully informed, uncoerced vote by disinterested stockholders triggers the waste standard. In Corwin, the Delaware Supreme Court also indicated that Revlon was only meant to provide stockholders with...

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Inflated Private Offering: Regulating Corporate Insiders and Market-Moving Disclosures on Social Media

Jan. 21, 2020—Marisa Papenfuss | 73 Vand. L. Rev. 311 (2020) | The U.S. Securities and Exchange Commission enacted Regulation Fair Disclosure (“Regulation FD”) to prohibit companies from disclosing material information to select parties but not the public at large. The rapid advancement of technology since Regulation FD’s enactment has dramatically altered the ways companies distribute information...

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Chancery Court Finds Notice to Non-Consenting Stockholders Not a Precondition to an Effective Majority Written Consent

Jan. 15, 2020—Robert S. Reder & Jake Haskins | 73 Vand. L. Rev. En Banc. 53 | PDF Download Link “[N]otice issues were addressed by the Delaware Court of Chancery (“Chancery Court”) in Brown v. Kellar, C.A. No. 2018-0687-MTZ, 2018 WL 6721263 (Del. Ch. Dec. 21, 2018). First, Vice Chancellor Morgan T. Zurn considered whether “prompt notice”...

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Chancery Court Rejects Target Company Claim That Termination Fee Was Jilted Merger Partner’s Exclusive Remedy

Jan. 15, 2020—Robert S. Reder & Alexandra Sasha Gombar | 73 Vand. L. Rev. En Banc 45 | PDF Download Link “Recently, in Genuine Parts Co. v. Essendant Inc., C.A. No. 2018-0730-JRS, 2019 WL 4257160 (Del. Ch. Sept. 9, 2019) (“Genuine Parts”), the Chancery Court had another opportunity to analyze standard public merger agreement provisions. Vice Chancellor...

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Chancery Court Refuses Pleading Stage Dismissal Under Corwin When Stockholders Not Fully Informed of Long-Overdue Financial Restatement

Jan. 15, 2020—Robert S. Reder & Amanda M. Mitchell | 73 Vand. L. Rev. En Banc 35 | PDF Download Link “The factual bases underlying Vice Chancellor Slights’s refusal to entertain a Corwin defense at the pleading stage in Tangoe—delayed Securities and Exchange Commission (“SEC”) filings and inadequate financial statement disclosures to stockholders—are similar to the factual...

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