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En Banc Category

Rethinking the Silent Treatment

Aug. 22, 2021—Sasha Gombar | 74 Vand. L. Rev. En Banc 289 (2021) | When the hashtag “MeToo” was popularized in the wake of the Harvey Weinstein scandal, the underlying philosophy was simple. Too many people had claimed that women’s stories about sexual assault lacked corroboration, dismissing evidence of workplace sexism as merely “anecdotal.” However, when enough women started telling...

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“Laboratories of Jurisprudence?: The Role of State Supreme Courts in a Federal System”

Aug. 17, 2021—Justice Jonathan Papik | 74 Vand. L. Rev. En Banc 271 (2021) | All of that really did make me wonder, as I was preparing to come here, what I could possibly have to offer. The one thing that gives me some solace is that, based on my recollection, the majority of your previous speakers...

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Chancery Court Considers Whether Either Party to Failed Multibillion Dollar Merger Was Entitled to Payment of a Fixed Termination Fee

Aug. 11, 2021—Robert S. Reder & Maryam Saad | 74 Vand. L. Rev. En Banc 263 (2021) | The Williams Companies, Inc. (“Williams”) and Energy Transfer L.P. (“ETE”) are “significant players in the energy pipeline business” (quoting Williams II below). On September 28, 2015, Williams and ETE agreed to a complicated “multi-billion-dollar merger” (quoting Williams II below)...

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Stillwater Appraisal: Delaware Supreme Court Affirms Chancery Court Reliance on Deal Price in Determining “Fair Value”

Aug. 11, 2021—Robert S. Reder & Chutian Wang | 74 Vand. L. Rev. En Banc 253 (2021) | Under Section 262 of the Delaware General Corporation Law (“DGCL § 262”), a stockholder unhappy with the consideration payable in a merger is entitled to dissent from the transaction and seek a Delaware Court of Chancery (“Chancery Court”) appraisal...

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Jarden Appraisal: Delaware Supreme Court Affirms Chancery Court’s Exclusive Reliance on Unaffected Market Price in Determining “Fair Value” Under DGCL § 262

Aug. 11, 2021—Robert S. Reder & James H. Ryan | 74 Vand. L. Rev. En Banc 241 (2021) | For (at least) the fourth time since 2017, the Delaware Supreme Court (“Supreme Court”) has weighed in on the proper analysis for determining “fair value” in an appraisal proceeding under Delaware General Corporation Law § 262 (“DGCL §...

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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...

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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...

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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...

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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...

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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....

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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...

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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...

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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...

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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...

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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...

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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...

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