Law Commons^™

Promises Made To Be Broken? Standstill Agreements In Change Of Control Transactions, Christina M. Sautter

Journal Articles

Many promises are made in the negotiation of a merger but not all promises are necessarily enforceable or consistent with a board of directors’ fiduciary duties. This article explores the enforceability of one such promise: the buyer’s standstill agreement. When a publicly traded company explores a sale, that company, the target, customarily requires each potential buyer to execute a standstill agreement. A typical standstill prevents potential buyers from publicly making or announcing a bid for the target during the sale process without the target’s prior consent and for a period of approximately twelve to eighteen months from the conclusion of …

Constraining The Federal Rules Of Civil Procedure Through The Federalism Canons Of Statutory Interpretation, Margaret S. Thomas

Journal Articles

The doctrine for deciding when to apply the Federal Rules of Civil Procedure to state claims heard in federal court has become a quagmire of exceptions and ephemeral distinctions, in large measure due to the persistent difficulty courts have in separating substantive rules from procedural ones in an era where special procedural rules are often used as an essential regulatory tool in state governance. This article examines the power of Federal Rules of Civil Procedure to displace contrary state law in diversity cases by focusing on the limited functional competence of the Supreme Court and its Advisory Committee to displace …

What We Talk About When We Talk About Tax Exemption, Philip T. Hackney

Journal Articles

Certain nonprofit organizations are granted exemption from federal income tax (“tax exemption”). Most theories assume tax exemption is a subsidy for organizations such as charities that provide some underprovided good or service. To make the subsidy case, these theories assume that there should be a tax on nonprofit organization income but provide no justification for this assumption. This article contributes to the literature by considering corporate income tax rationales as a proxy for why we might tax nonprofit organizations. The primary two corporate tax theories hold that the corporate tax is imposed to: (1) tax shareholders (“shareholder theory”), and (2) …

Auction Theory And Standstills: Dealing With Friends And Foes In A Sale Of Corporate Control, Christina M. Sautter

Journal Articles

A fundamental issue in Delaware mergers & acquisitions (M&A) law is the extent to which a target company’s board of directors may restrict a sales process to extract value from bidders and grant a “winning bidder” certain deal protections to protect a transaction from being overbid. Standstill agreements are one such form of deal protection. Standstills prevent bidders from making or announcing a bid for the target without the target’s consent both during the sales process and for a period after the sales process is completed and the target has executed an agreement with a “winning bidder.” Recent 2011 and …

Louisiana Oil & Gas Update, Keith B. Hall

Journal Articles

No abstract provided.

In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms - A Disquisition On The Revival Of The Militia At Large, Raymond T. Diamond, Robert J. Cottrol

Journal Articles

No abstract provided.

Hydraulic Fracturing: Trade Secrets And The Mandatory Disclosure Of Fracturing Water Composition, Keith B. Hall

Journal Articles

No abstract provided.

The American Takings Revolution And Public Trust Preservation: A Tale Of Two Blackstones, Blake Hudson

Journal Articles

The U.S. Constitution was forged out of a revolution that both rejected and embraced aspects of English legal tradition. The Takings Clause and its subsequent jurisprudential interpretation represents a rejection of what the Framers at the time and constitutional Reframers since that time viewed as central government over-reaching and improper interference with private property rights. The Framers left fully intact — and a different set of constitutional Reframers are increasingly seeking to use — the English common law doctrine of public trust to prevent private property rights from trumping the public’s interest in certain resources, especially in the coastal zone. …

Hydraulic Fracturing Contamination Claims: Problems With Proof, Keith B. Hall

Journal Articles

Hydraulic fracturing is controversial. Many people believe that hydraulic fracturing has caused contamination of groundwater and that the process should be prohibited because it is likely to cause additional contamination if it continues to be used. Many other people believe that hydraulic fracturing has not caused contamination and that little additional regulation is needed because fracturing is a useful process that poses little risk. Notably, this disagreement is not merely a difference of opinion regarding how society should balance economic development and environmental protection. Instead, the disagreement concerns facts – whether fracturing already has caused contamination and how much risk …

Uncommon Approaches To Commons Problems: Nested Governance Commons And Climate Change, Blake Hudson, Jonathan Rosenbloom

Journal Articles

Natural capital resources crucial to combatting climate change are potentially subject to tragic overconsumption absent a requisite degree of vertical government regulation of resource appropriators and/or horizontal collective action among resource appropriators. In federal systems, these vertical and horizontal approaches may (or may not) take place in any one of four scales — local, state, national, and global — “nested” one within another. Prior research has described how natural capital in federal systems of government, though privatized and/or subject to government regulation, may nonetheless remain in a tragic plight due to the allocation of governance authority in federal systems — …

Calling On Congress: Take A Page From Parliament's Playbook And Fix Employment Discrimination Law, William Corbett

Journal Articles

No abstract provided.

The Point Of A Points System: Attracting Highly Skilled Immigrants The United States Needs And Ensuring Their Success, Carla Tabag

Vanderbilt Journal of Transnational Law

In a globalizing world, labor is an increasingly mobile and competitive resource. Responding to this changing labor market, countries like Canada, the United Kingdom, and Australia have adopted points systems with the goal of attracting talented, highly skilled immigrants. In the United States, however, much of the national focus on immigration remains on deterring illegal immigration rather than attracting immigrants that the United States needs to remain competitive in a globalized world. But attracting skilled immigrants is only one ingredient to a successful points system; a country must also ensure those immigrants are successful and use their talents to the …

Plain Packaging And The Interpretation Of The Trips Agreement, Susy Frankel, Daniel Gervais

Vanderbilt Journal of Transnational Law

Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging's compatibility with the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

WTO members can validly take measures to protect and promote public health, but in doing so they …

Rescission, Restitution, And The Principle Of Fair Redress: A Response To Professors Brooks And Stremitzer, Steven W. Feldman

Valparaiso University Law Review

No abstract provided.

The Supreme Court And Recusals: A Response To Professor Lubet, Laurel A. Rigertas

Valparaiso University Law Review

No abstract provided.

Legal Realisms, Old And New, Brian Leiter

Valparaiso University Law Review

No abstract provided.

Ambiguities Of Free Labor Revisited: The Convict-Labor Question In Progressive-Era New York, Barry Cushman

Book Chapters

From the Author

Until the last quarter of the twentieth century it was a commonplace that the various expressions of economic substantive due process we associate with the so-called “Lochner Era” were animated by laissez-faire economics and Social Darwinism. More recent assessments have persuasively rejected this view, observing that the Court as a whole and the justices individually voted to uphold many more instances of government regulation of the economy than they voted to invalidate, and that the closest thing to a Social Darwinist that the Court had to offer was Justice Holmes, on whose polemical dissent in Lochner the …

General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

Conventional wisdom maintains that the Supreme Court banished general law from federal courts in 1938 in Erie Railroad Co. v. Tompkins when the Court overruled Swift v. Tyson. The narrative asserts that Swift viewed the common law as a “brooding omnipresence,” and authorized federal courts to disregard state common law in favor of general common law of their own choosing. The narrative continues that Erie constrained such judicial lawmaking by banishing general law from federal courts. Contrary to this account, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in historical context. At the …

The Rise In Judicial Hostility To Arbitration: Revisiting Hall Street Associates, Thomas E. Carbonneau

Faculty Scholarship

When the United States Supreme Court granted certiorari in Hall Street Associates,LLC v. Mattel, Inc., commentators expected the Court to resolve the split among the federal circuits regarding the validity and enforceability of 'opt-in' agreements.Since the late 1990s, these agreements had become a means through which contracting parties could obtain enhanced judicial supervision of arbitral awards by providing for judicial review of the merits of arbitrator rulings. While commentators got a resolution to the split, they received a great deal more than they had been promised.

Stylistic opacity made the opinion in Hall Street somewhat inaccessible. In fact, as …

The Federal Reserve's Supporting Role Behind Dodd-Frank's Clearinghouse Reforms, Colleen M. Baker

Journal Articles

This Article analyzes the Federal Reserve’s expanded role in payment, clearing, and settlement systems, particularly in connection with certain clearinghouses that have been designated by the newly created Financial Stability Oversight Council as “systemically significant.” The Federal Reserve’s expanded role is a little understood, but critical supporting component of domestic and international regulatory reforms to the $639 trillion over-the-counter (OTC) derivative markets. These reforms mandate the increased use of clearinghouses in OTC derivative markets. Due to critical reforms in Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Federal Reserve is now positioned to …

Mixing U.S. And Dutch Approaches: Towards Curaçao’S Legislation On Private Commercial Spaceflight, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

One of the more advanced projects to offer private commercial spaceflights concerns Curaçao, the Dutch island in the Caribbean, from where Space Expedition Corporation (SXC) aims to start launching such flights as of 2014 with vehicles to be developed by XCOR. Not only is the island still part of the Kingdom of the Netherlands, albeit as of recently as an autonomous “Land,” SXC is a company with its origins in the Netherlands, too. On the other hand, XCOR, which is going to wet lease its vehicles to SXC, is a US company, and its operations consequently will—to the extent applicable—(also) …

Crossing A Rubycon? The International Legal Framework For Isos—Before And After Privatization, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The present chapter analyzes the activities of international satellite organizations (ISOs), former ISOs, and private satellite operators from the perspective of the four principal international space law treaties, consisting of the Outer Space Treaty, the Rescue and Return Agreement, the Liability Convention, and the Registration Convention. In addition, it considers a United Nations Resolution dealing specifically with Direct Broadcasting by Satellite, as it is one of the major categories of activities that international satellite organizations such as INTELSAT and EUTELSAT have traditionally undertaken, as well as the International Telecommunication Union (ITU), which oversees the international regime developed to deal with …

Medical Adverse Events And Malpractice Litigation In Arizona: By-The-Numbers, Ashley M. Votruba, Michael J. Saks

Department of Psychology: Faculty Publications

A new medical malpractice "crisis" periodically erupts across the United States, invariably producing calls for legislative solutions. Typically, the public is told that rising malpractice insurance premiums are driving doctors out of their practices or out of our state, while increasing the cost of health care, and that those rising insurance rates are the product of too many unwarranted lawsuits resulting in exorbitant damage awards. The legislative fixes typically involve restricting the ability of plaintiffs to bring claims, to prosecute their claims successfully, or to recover full damages if they happen to prevail on their claims. The U.S. Congress sometimes …

Federal Tort Claims Act - Seventh Circuit's Legrande Opinion Is Almost A Knockout, Blake Feikema

Journal of Air Law and Commerce

No abstract provided.

General Aviation Accident Rate: How General Aviation Differs From Commercial Airline Flight And How To Correct The Discrepancy, Michelle Northcutt

Journal of Air Law and Commerce

No abstract provided.

Floating Toward A Sky Near You: Unmanned Aircraft Systems And The Implications Of The Faa Modernization And Reform Act Of 2012, Brandon Bellows

Journal of Air Law and Commerce

No abstract provided.

Commercializing Space: Intellectual Property Concerns With Space Act Agreements, Bryan Parrish

Journal of Air Law and Commerce

No abstract provided.

The Tsa's New Precheck Is Beginning To Look A Lot Like Capps Ii: The Privacy Implications Of Reviving The Tenets Of The Failed Predecessor, Katie Cristina

Journal of Air Law and Commerce

No abstract provided.

Employment Law - Retired Pilots Awarded Monetary Interest On Delayed Lump Sum Pension Payments, Christopher W. Lambert

Journal of Air Law and Commerce

No abstract provided.

Synthetic Drugs - Emergence, Legislation, And The Criminal And Legal Aftermath Of Broad Regulation, Zunny Losoya

SMU Law Review

No abstract provided.