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Essays Category

Preliminary Damages

Jan. 24, 2022—Gideon Parchomovsky & Alex Stein | 75 Vand. L. Rev. 239 (2022) | Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically...

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Brown, Massive Resistance, and the Lawyer’s View: A Nashville Story

Oct. 19, 2021—Daniel J. Sharfstein | 74 Vand. L. Rev. 1435 (2021) | For nearly 75 years, the Vanderbilt Law Review has sought to publish rigorous, intellectually honest scholarship. In publishing the following Essay, we seek to provide an equally unflinching look at one way in which Vanderbilt Law School and its graduates have participated in the creation...

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The Quick (Spending) and the Dead: The Agency Costs of Forever Philanthropy

Apr. 20, 2021—Brian Galle | 74 Vand. L. Rev. 757 (2021) | American philanthropic institutions control upwards of a trillion dollars of wealth. Because contributions to these entities are deductible from both income and estate taxes, and the entities’ earnings are tax-free, that trillion dollars is heavily underwritten by contemporary taxpayers. Law offers little assurance that those...

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Chevron Is a Phoenix

Mar. 24, 2021—Lisa Schultz Bressman & Kevin M. Stack | 74 Vand. L. Rev. 465 (2021) | Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details...

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The Liberal Case Against the Modern Class Action

May. 26, 2020—Martin H. Redish | 73 Vand. L. Rev. 1127 (2020) | Those who classify themselves as liberal generally favor widespread use of class actions as a means of policing corporate misbehavior and protecting the individual worker or consumer against capitalist excesses. In this Essay, however, I take the counterintuitive position that while class action practice...

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Why Class Actions Are Something both Liberals and Conservatives Can Love

May. 26, 2020—Brian T. Fitzpatrick | 73 Vand. L. Rev. 1147 (2020) | In Professor Redish’s review of my new book, The Conservative Case for Class Actions, he argues that liberals should oppose the class action because the cy pres doctrine used to distribute settlement money is democratically illegitimate and that conservatives should oppose it because it...

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Social Checks and Balances: A Private Fairness Doctrine

Apr. 20, 2020—Michael P. Vandenbergh | 73 Vand. L. Rev. 811 | This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. It argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the...

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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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You Get What You Pay For: An Empirical Examination of the Use of MTurk in Legal Scholarship

Oct. 11, 2019—Robertson & Yoon | 72 Vand. L. Rev. 1633 (2019) | In recent years, legal scholars have come to rely on Amazon’s Mechanical Turk (“MTurk”) platform to recruit participants for surveys and experiments. Despite MTurk’s popularity, there is no generally accepted methodology for its use in legal scholarship, and many questions remain about the validity...

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Disclosing Prosecutorial Misconduct

Jan. 28, 2019—Disclosing-Prosecutorial-Misconduct Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system. Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the criminal justice system. Commentators have responded by proposing a range of reforms to increase Brady compliance. Yet these...

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The Trouble with Corporate Conscience

Oct. 19, 2018—The-Trouble-with-Corporate-Conscience ABSTRACT: Accomplished corporate law scholars claim that modern businesses need an infusion of morality. Disappointed by conventional regulatory responses to recurring corporate scandal, these scholars argue that corporate conscience provides a more fruitful path to systemic economic reform. In Burwell v. Hobby Lobby, which held that for-profit businesses can claim religious exemptions from general...

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The Political Economy of Corporate Exit

May. 22, 2018—The-Political-Economy-of-Corporate-Exit ABSTRACT Corporate political activity is understood to include financial contributions, lobbying efforts, participation in trade groups, and political advertising, all of which give corporations a “voice” in public decisionmaking. This Essay contends that the accepted definition of corporate political activity overlooks the importance of “exit.” Corporations do not need to spend money to exert...

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Private Benefits in Public Offerings: Tax Receivable Agreements in IPOs

Apr. 18, 2018—Private-Benefits-in-Public-Offerings-Tax-Receivable-Agreements-in-IPOs ABSTRACT Historically, an initial public offering (“IPO”) was a process whereby a company sold all of its underlying assets to the public. A new tax innovation, the “tax receivable agreement” (“TRA”), creates private tax benefits in public offerings by allowing pre-IPO owners to effectively keep valuable tax assets for themselves while selling the rest...

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The Constitutional Case for Chevron Deference

Apr. 18, 2018—The-Constitutional-Case-for-Chevron-Deference ABSTRACT Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Essay shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An...

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The Shifting Tides of Merger Litigation

Mar. 13, 2018—The-Shifting-Tides-of-Merger-Litigation ABSTRACT In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to...

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Decoding Guilty Minds: How Jurors Attribute Knowledge and Guilt

Jan. 18, 2018—Decoding Guilty Minds ABSTRACT A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what...

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