About En Banc
The Vanderbilt Law Review En Banc is the online companion journal to the Vanderbilt Law Review, designed to advance scholarly discussion.
When reexamining a case “en banc,” an appellate court operates at its highest level, with all judges present and participating “on the bench.” We chose the name “En Banc” to capture this spirit of focused review and provide a forum for further dialogue where all can be present and participate.
Publications
The Vanderbilt Law Review En Banc publishes various forms of scholarship, including the following:
- Roundtables to host debates among legal academics and practitioners, usually on topical issues or notable cases pending before the U.S. Supreme Court;
- Responses to articles originally published either in the Vanderbilt Law Review or with Vanderbilt Law Review En Banc;
- Essays written by scholars, practitioners, judges, or students on contemporary legal issues;
- Delaware Corporate Law Bulletins written by professors and students, commenting on recent corporate case law developments in Delaware;
- Notes and Comments written by Vanderbilt Law Review members on various legal issues; and
- Book Reviews written by professors on recent pieces of scholarship, with a focus on reviewing books authored by a Vanderbilt Law School faculty member.
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Recent Publications
Responses
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Committing to Agency Independence
Jul. 17, 2023 | Nicholas Almendares | 76 Vand. L. Rev. En Banc 1
Response to Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 VAND. L. REV 1 (2023)
Nielson and Walker argue persuasively that Congress flexing its anti-removal power muscles is constitutional. They point to the Senate’s clear role in appointments enshrined in Article II and the ways that the Supreme Court has, perhaps unwittingly, strengthened Congress’ anti-removal power. Yet anti-removal power runs directly counter to the presidential accountability principle the Court has articulated. To the extent anti-removal power is effective it lessens the president’s control over the agency. That is rather the point. The president retains some control, anti-removal power is not absolute, but then again, neither is statutory removal protection. Moreover, the Supreme Court has said recently that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.” Given the current pattern in the caselaw, I see little reason why the Court would not extend this logic to multimember agencies. The Court went on to argue that the president must be able to remove agency personnel for any reason, including, crucially, “different views of policy.” I just wonder if a Supreme Court truly committed to such complete presidential control of agencies might balk at Nielson and Walker’s proposal. There is no question that reducing presidential control is the very goal of the anti-removal tools Nielson and Walker lay out. In this way, anti-removal power is a “wolf [that] comes as a wolf.”
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Radicalism and Democracy in Monetary System Reform
John Crawford | 75 Vand. L. Rev. En Banc 55 (2022) |
The People’s Ledger is meant to offer “a blueprint for reform that would radically democratize access to money and control over financial flows in the nation’s economy.” Admitting that radical reform of the current system demands consideration, and that democratizing money is desirable, in this Response, I will critically evaluate the set of proposals put forward in The People’s Ledger along the dimensions of radicalism and democratization, while also suggesting reasons to embrace or reject parts of the program. What The People’s Ledger adds to prior FedAccounts proposals, and what grounds its claims to radicalism, lies first and foremost in its call for fundamental changes to how money is created. To this end, the Article proposes four “new” methods of money creation. I will suggest that two of these methods are unobjectionable but, at core, not new; that a third method is new but unadvisable; and that the fourth proposed method is new and radical, but possibly not radical enough. With respect to certain other issues The People’s Ledger addresses—shadow banking and determining the rates at which the Fed would lend to banks—I suggest that the proposal needs to be more radical. Finally, I will explore what strikes me as a deep ambiguity in The People’s Ledger with respect to what democratizing the Fed’s balance sheet means, or should mean, and its implications for the Fed’s popular legitimacy, as well as the quality of its policymaking going forward.
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Can Better Juries Fix American Criminal Justice?
Darryl K. Brown | 75 Vand. L. Rev. En Banc 205 (2022)
This piece is a response to Daniel Epps & William Ortman, The Informed Jury, 75 VAND. L. REV. 823 (2022).
Professors Daniel Epps and William Ortman argue that it could. In their Article The Informed Jury, Epps and Ortman propose that trial judges inform juries about the authorized sentences attached to the charged offenses presented to them before they decide whether defendants are guilty of those charges. The idea flies in the face of more than a century of practice in state and federal courts; law in almost every U.S. jurisdiction prohibits jurors from being told the possible sentencing consequences of conviction (capital murder charges excepted).Why, after all, do jurors need to know? Save in a half-dozen states (and again in capital cases), jurors have no role in sentencing.Whether a defendant is guilty of a crime is one question; what punishment he should receive if guilty is another. Jurors are assigned the first; judges (or sometimes statutes) settle the second.
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Hunting for Nondelegation Doctrine’s Snark
Roderick M. Hills, Jr. | 75 Vand. L. Rev. En Banc 215 (2022)
This piece is a response to Ben Silver, Nondelegation in the States, 75 VAND. L. REV. 1211, 1221 (2022).
There is much to like about Silver’s article: it is analytically sharp, doctrinally comprehensive, and written with clarity and grace. Moreover, on the substance, Silver is surely correct that one cannot understand judicial concerns about delegation without accounting for courts especially disfavoring certain sorts of delegatees. It is a familiar point, for instance, that state courts often express special suspicion of delegations to private organizations, noting that private actors’ self- interest and lack of any electoral tie to voters undermines popular control of lawmaking. With admirable ambition to synthesize the doctrine, Silver insists that “the Sovereignty view of nondelegation must not be conflated with a straightforward rule against delegations to private entities.”Instead, “the rule against private delegations is a particular instance of a much broader rule against delegating outside the state government,” encompassing judicial decisions limiting delegations to private parties, municipalities, plebiscites, or municipal corporations.
I am inclined, however, to be skeptical about the explanatory force of Silver’s separation-of-powers/sovereignty dichotomy. As I explain in more detail below, the judicial concerns underlying suspicion of municipalities, plebiscites, and private organizations are simply too divergent to be explicable as manifestations of some single impulse to protect the abstract value of sovereignty.
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Democracy and Disenchantment
Ashraf Ahmed | 75 Vand. L. Rev. En Banc 223 (2022)
This piece is a response to Ryan D. Doerfler & Samuel Moyn, The Ghost of John Hart Ely, 75 VAND. L. REV 769 (2022).
The Ghost of John Hart Ely is Doerfler and Moyn’s latest salvo against American judicial review. This time, however, their strategy is different. Instead of directly critiquing the Supreme Court’s power, they target the ideology that undergirds it. In particular, they identify the work of John Hart Ely as responsible for animating continued liberal belief that a powerful Supreme Court is both necessary and desirable for democracy. Ely famously justified judicial review on two grounds: it was necessary for protecting political minorities against systemic bias and ensuring a competitive political process by “clearing the channels of political change.” While scholars have closely scrutinized Ely’s proceduralism in the decades that followed Democracy and Distrust’s publication, Moyn and Doerfler contend that his real influence—indeed his “ghost”—lives on through the “two empirical conjectures he makes that mainstream liberals share.” Even if Ely’s theory has fallen out of fashion, liberal confidence in the Court has endured because contemporary thinkers continue to hold on to Ely’s assumptions.
Roundtables
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Duty and Diversity
Jan 2022 | Chris Brummer & Leo E. Strine, Jr. | 75 Vand. L. Rev. Number 1
In the wake of the brutal deaths of George Floyd and Breonna Taylor, lawmakers and corporate boards from Wall Street to the West Coast have introduced a slew of reforms aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope, and degree of legal obligation and practical effects.
In this Article, we provide an old answer to the new questions facing DEI policy and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we show that corporate fiduciaries are bound by their duties of loyalty to take affirmative steps to make sure that corporations comply with important civil rights and antidiscrimination laws and norms designed to ensure fair access to economic opportunity. We also show how corporate law principles like the business judgment rule do not just authorize, but indeed encourage American corporations to take effective action to reduce racial and gender inequality and increase inclusion, tolerance, and diversity given the rational basis that exists connecting good DEI practices, corporate reputation, and sustainable firm value. By both incorporating requirements to comply with key antidiscrimination laws and enabling corporate DEI policies that go well beyond the legal minimum, corporate law offers critical tools with which corporations may address DEI goals that other reforms do not-—and that can embed a commitment to diversity, equity, and inclusion in all aspects of corporate interactions with employees, customers, communities, and society generally. The question, therefore, is not whether corporate leaders can take effective action to help reduce racial and gender inequality—-but will they?
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Diversity and Reimagining the Internal-External Dichotomy
Elizabeth Pollman | 75 Vand. L. Rev. En Banc 87 (2022)
Duty and Diversity makes a major contribution to corporate law, and more specifically to the promotion of DEI within the field. Many aspects of this excellent Article deserve attention, but this brief Response modestly aims to amplify one: its embrace of a dynamic approach to understanding fiduciary principles that is tightly connected to external laws and social norms.
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A Duty to Diversify
Anat Alon-Beck, Michal Agmon-Gonnen & Darren Rosenblum | 75 Vand. L. Rev. En Banc 97 (2022)
Fiduciary duties reflect the central role of leaders in corporate governance. Those with the most responsibility benefit the most from corporate success, but also bear commensurate fiduciary responsibilities. Diversity, equality, equity, and inclusion may seem an odd fit among other fiduciary duties. However, fiduciary duties are where governance imposes the burden of “doing the right thing.” Fiduciary duties involve normatively good behavior that proves essential to ensuring responsible decision-making and achieving positive outcomes for firms.
Corporate law allows, encourages and perhaps, today, even mandates, corporate leaders to do the right thing. Not only does it seem appropriate to ask corporate leaders, such as institutional investors, to carry this fiduciary duty, but imposing this duty on them may prove far more effective than other efforts. As a new generation of leaders rise to lead, the resulting changes may prove revolutionary, both for firms and investors.
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The Diversity Risk Paradox
Veronica Root Martinez | 75 Vand. L. Rev. En Banc 115 (2022)
There is a growing body of literature discussing the proper role of diversity, equity, and inclusion efforts by and within public firms. A combination of forces brought renewed energy to this topic over the past few years. The #MeToo movement demonstrated a whole host of inequities faced by women within workplaces. Business Roundtable’s 2019 Statement on the Purpose of a Corporation rejected the view that the purpose of the corporation was solely to be focused on the maximization of shareholder wealth. And, in 2020, the murder of George Floyd ignited a racial reckoning within the United States, which prompted many firms to rethink and reaffirm their commitments to creating diverse, equitable, and inclusive workplaces. Chris Brummer and Leo E. Strine, Jr.’s Duty and Diversity, the subject of this Response piece, takes on the issue of diversity efforts within public firms directly. They argue that “the pursuit of Diversity, Equity, and Inclusion is solidly authorized by the operation of traditional corporate law principles and can even be easily squared with the views of those who embrace what has come to be known as ‘shareholder primacy.’” Their piece is an excellent and comprehensive addition to the current literature.
This Response focuses on how concerns about risk may influence firms as they evaluate how to best engage in more robust and meaningful diversity, equity, and inclusion efforts. It highlights the tension that can be created when members of a firm fail to take certain risks seriously enough while simultaneously allowing potential risks to block a subset of potentially impactful reforms. First, the failure by a firm to act in accordance with its public statements regarding diversity could create risks for the firm over the long term. Second, members of firms may sometimes be deterred, whether implicitly or explicitly, out of concerns that taking certain actions might create new zones of risk for the firm. These two realities can create a sort of risk paradox. This Response argues that for a firm to properly address the diversity risk paradox, it must consider what actions are likely to lead to the creation of a culture of equity and inclusion throughout the firm. By prioritizing equity and inclusion, firms can engage in more productive risk assessments about what diversity efforts to prioritize and pursue.
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Empowering Diversity Ambition: Brummer and Strine’s Duty and Diversity Makes the Legal and Business Case for Doing More, Doing Good, and Doing Well
Lisa M. Fairfax | 75 Vand. L. Rev. En Banc 131 (2022)
Chris Brummer and Leo Strine’s Article Duty and Diversity makes several significant contributions that enhance the support for greater corporate focus on diversity, equity, and inclusion (“Diversity” or “DEI”). These contributions are particularly important not only because Diversity itself is an imperative but also because of the inevitable pushback against corporate efforts to advance Diversity. Indeed, as Brummer and Strine note, some corporate scholars contend that the corporation has no business being involved in the business of Diversity. These scholars often support this contention by relying on their interpretation of a mix of soft and hard law which they insist serves as a legal and extralegal barrier for corporate efforts aimed at significantly promoting Diversity. Brummer and Strine convincingly discredit these interpretations, and in so doing, discredit the myths surrounding the corporate law obstacles associated with the for-profit corporation’s ability to advance Diversity. In particular, Brummer and Strine demonstrate the manner in which corporate law mandates a focus on Diversity, at least to the extent that law requires legal compliance with antidiscrimination and civil rights laws. In addition, Brummer and Strine not only reveal the legal safeguards for corporate engagement of Diversity initiatives but also highlight both the costs associated with ignoring Diversity matters as well as the “money to be made by companies that take DEI seriously.” In so doing, Brummer and Strine make an especially compelling affirmative case supporting corporations that would go beyond legal compliance and adopt more ambitious Diversity policies and practices. In this respect, Brummer and Strine persuasively demonstrate that corporations can (1) do significantly more than comply with the law without fear of legal liability, (2) “do good,” by promoting policies that advance economic equality and inclusion, and (3) do well, by profiting from their more comprehensive Diversity policies and practices.
Book Reviews
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Criminal Injustice
Edward Rubin | 75 Vand. L. Rev. En Banc 1 (2022) |
Reviewed: JED S. RAKOFF, WHY THE INNOCENT PLEAD GUILTY AND THE GUILTY GO FREE: AND OTHER PARADOXES OF OUR BROKEN LEGAL SYSTEM, Farrar, Strauss & Giroux 2021. Pp. 208. $27.00 Hardcover.
As its title suggests, Why the Innocent Plead Guilty and the Guilty Go Free is a wide-ranging critique of our criminal justice system. While it is hardly the first, it offers a number of distinctive insights. Most of the now voluminous work on this topic is written by scholars, policy analysts, or journalists and is addressed to the legislature or the executive. This certainly makes sense. External observers are well- positioned to critique a system that punishes without purpose, and the major determinants of its dysfunction are the legislature that enacts the criminal law and the executive that enforces it. In contrast, the author of this book, Jed S. Rakoff, is a sitting federal judge, and he provides a specifically judicial perspective. This appears in at least two of the book’s most notable features: its juxtaposition of its subject matter and its discussion of the way that general trends in our criminal law impact the work of judges.
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In Defense of Excellence
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 community of thinkers engaging in intellectual pursuits as an end in itself and teaching students “to think and to reason and to compare and to discriminate and to analyse.” Even thirteen decades later, Americans were still holding on to and teaching our children this very ideal “to respect the diversity of ideas that is fundamental to the American system.” But that understanding has changed. Just half a decade thereafter, Allan Bloom’s bestseller, The Closing of the American Mind, sparked an intense debate on the issue of viewpoint diversity by contending that academia has been forgoing intellectual openness to pursue egalitarianism. Anthony Kronman’s new book, The Assault on American Excellence, continues this conversation more than three decades later, describing the recent loss of intellectual diversity (pluralism) and arguing for a return to the pursuit of excellence in higher education.”
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Shining a Light on Shadow Money
John Crawford & Stanley Onyeador | 69 Vand. L. Rev. En Banc 11 |
Reviewed: MORGAN RICKS, THE MONEY PROBLEM: RETHINKING FINANCIAL REGULATION (University of Chicago Press, 2014).
"In his superb new book, The Money Problem: Rethinking
Financial Regulation,' Morgan Ricks meticulously and persuasively argues that financial stability and money creation are two sides of the same coin. Most money is held not as physical currency but rather as a claim on a financial institution." -
Common and Uncommon Families and the American Constitutional Order
John Crawford & Stanley Onyeador | 69 Vand. L. Rev. En Banc 11 |
Reviewed: STATES OF UNION: FAMILY AND CHANGE IN THE AMERICAN CONSTITUTIONAL ORDER Mark E. Brandon. Lawrence: University of Kansas Press, 2014.
In STATES OF UNION: FAMILY AND CHANGE IN THE AMERICAN CONSTITUTIONAL ORDER (University Press of Kansas, 2013) Professor Mark Brandon challenges some common understandings about the intersection of law and family in the United States. This Book Review examines Brandon’s historical work in the broader context of current debates about which family forms should be sanctioned by governments. Professor Linda McClain explores Brandon’s vivid sketches of the different models of families throughout U.S. history and how each interacted with federal, state, and local governments. The Review concludes by quoting a memorable passage from States of Union that sums up one of Brandon’s central themes: “[T]he history of family in the United States–and of how it came to be in the Constitution–has been a story of change and contestation. . . . America has always been a place for experiments and for diverse ways of life.”
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Going Private: Climate Action by Businesses and Individuals
Daniel A. Farber | 71 Vand. L. Rev. En Banc 197 (2018)
In Beyond Politics, Vandenbergh and Gilligan argue in favor of devoting far more attention to private initiatives that reduce carbon emissions and combat climate change. As Vandenbergh and Gilligan point out, it is a mistake to pin all of our hopes to a single strategy. For this reason, they argue, we should look beyond government regulation to the private sector—both companies and individuals—for help.
This review largely accepts their conclusions but seeks to place them in a somewhat different light. After some preliminaries, the book is largely framed around the identity of the actor (corporate or individual) and the factors that make private action more or less successful. Instead, this review will focus on the factors that make private action closer or further from the kind of regulatory governance we see from public government: whether the action involves coordinating the activities of a group and whether it involves incentives or pressure to change the behavior of others.
Essays
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The Power Five: The Making of Newsworthy Deal Teams
Tracey E. George, Mitu Gulati & Albert H. Yoon | 77 Vand. L. Rev. En Banc 91 (2024)
The number of law firm partners who identify as women has more than doubled since 1993. Will these gender parity advances regress as employers curb diversity efforts? To answer that question, we look at the organizational dynamics that affect women’s opportunities and outcomes through the lens of newsworthy deal teams. These teams, averaging five lawyers, are at the power center of law firms. Our analysis of over 10,000 deals and more than 50,000 attorneys for the period 2013–2023 reveals evidence that women’s gains may be sustainable without continued DEI interventions. While women are less likely to be at the top of a team and more likely to be on smaller transactions and cases, they are slowly advancing up the team ladder and gaining power. Over the past decade, the representation of women on leadership teams has grown fifty percent. Women are taking more seats at the deal table, increasing from one out of five spots to nearly one out of three. Women have not yet achieved parity in law firms but are on a positive trajectory, in contrast to the early evidence for attorneys who are racial and ethnic minorities. Making the team—the “power five”—exposes existing power structures while also suggesting future authority and control.
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Second Amendment Immigration Exceptionalism
Pratheepan Gulasekaram | 77 Vand. L. Rev. En Banc 51 (2024)
Recently, a federal district court in United States v. Vazquez- Ramirez upheld the federal criminal prohibition on firearm possession by unlawfully present noncitizens codified in 18 U.S.C. § 922(g)(5). Vazquez-Ramirez is just the latest in a string of post-New York State Rifle & Pistol Assoc. v. Bruen rulings from lower federal courts upholding that particular provision against Second Amendment challenges. In Bruen, the Court struck down a state discretionary permitting scheme for issuing concealed firearms carrying permits, and prescribed a novel “text, history, and tradition” methodology for evaluating gun regulations. Even in the decade prior to Bruen, federal circuit courts uniformly rejected constitutional challenges to § 922(g)(5) using “tiers of scrutiny” analysis. In fact, only one court—the Western District of Texas in United States v. Sing-Ledezma—thus far has struck down the federal “alien-in-possession” ban as violative of the Second Amendment. In short, the result Judge Rosanna Peterson reaches in Vazquez-Ramirez is neither surprising nor anomalous.
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Fenceposts Without a Fence
Katherine E. Di Lucido, Nicholas K. Tabor & Jeffery Y. Zhang | 76 Vand. L. Rev. 1215
Banking organizations in the United States have long been subject to two broad categories of regulatory requirements. The first is permissive: a “positive” grant of rights and privileges, typically via a charter for a corporate entity, to engage in the business of banking. The second is restrictive: a “negative” set of conditions on those rights and privileges, limiting conduct and imposing a program of oversight and enforcement, by which the holder of that charter must abide. Together, these requirements form a legal cordon, or “regulatory perimeter,” around the U.S. banking sector.
The regulatory perimeter figures prominently in several ongoing policy debates, from the treatment of stablecoins and other crypto assets to the role of Big Tech in finance. The perimeter itself, however, is ill-defined and often misunderstood. To clarify it, this Article situates the regulatory perimeter in the longer historical arc of U.S. banking from the colonial era to the present. This Article identifies a new pattern behind changes to the nature, shape, and position of the perimeter—outside-in pressure, inside-out pressure, and reform and expansion. The Article also pinpoints a shift, decades old but previously neglected, in the design of regulatory categories and the distribution of responsibility between Congress and the executive branch. Put together, these trends have created a regulatory perimeter that is broader, more complex, and arguably more permeable than at any point in its history—a line of fenceposts without a fence.
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“Laboratories of Jurisprudence?: The Role of State Supreme Courts in a Federal System”
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 have served as judges in the federal system. My hope is that I might be able to talk today about some issues from the somewhat unique perspective of someone who serves on a state high court.
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Documenting Bankrupted Slaves
Rafael I. Pardo | 71 Vand. L. Rev. En Banc 73 (2018)
Bankrupted Slaves tells a story about institutional complicity in antebellum slavery-that is, the story of how the federal government in the 1840s and 1850s became the owner and seller of thousands of slaves belonging to financially distressed slaveowners who sought forgiveness of debt through the federal bankruptcy process. Relying on archival court records that have not been systematically analyzed by other scholars, Bankrupted Slaves analyzes how the Bankruptcy Act of 1841 (the "1841 Act" or "the Act") and the domestic slave trade inevitably collided to create the bankruptcy slave trade,4 focusing the analysis through a case study of the Eastern District of Louisiana (the "Eastern District"), which was home to New Orleans, antebellum America's largest slave market. This Article describes the methods used in Bankrupted Slaves to document the history of the Eastern District's bankruptcy slave trade and sets forth statistical tables documenting that trade.
Delaware Corporate Law Bulletins
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MFW Defense Available Despite Control Stockholder's Refusal to Negotiate with Credible Competing Bidder
Robert S. Reder | 77 Vand. L. Rev. En Banc 39
In Smart Local Unions and Councils Pension Fund v. BridgeBio Pharma, Inc., C.A. No. 2021-1030-PAF (Del. Ch. December 29, 2022) (“BridgeBio Pharma”), the Delaware Court of Chancery (“Chancery Court”) examined the negotiation and approval process underlying a control stockholder’s buyout of minority shares via a freeze-out merger. As usually is the case in control stockholder-related litigation in Delaware, the key gating issue for Vice Chancellor Paul A. Fioravanti, Jr. was selection of the appropriate standard of judicial review.
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Delaware Supreme Court Examines Interplay of Schnell "Inequitable Purposes" Doctrine and Blasius "Compelling Justification" Standard in Addressing Board Interference with Stockholder Vote
Robert S. Reder & Austria C. Arnold | 77 Vand. L. Rev. En Banc 61 (2024)
Acknowledging that “our corporate law is not static,” in Coster v. UIP Companies, Inc., No. 163, 2022 (Del. Sup. Ct. June 28, 2023) (“Coster IV”), the Delaware Supreme Court (“Supreme Court”) sought to reconcile several standards of judicial review utilized by Delaware courts over the years to address challenges to corporate board actions alleged to have impeded the stockholder franchise. This is not an insignificant issue: “[t]he shareholder franchise is the ideological underpinning upon which the legitimacy of directorial power rests” under Delaware corporate law.
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Chancery Court Demonstrates Willingness to Apply Context-specific Tests in Assessing Challenges to Advance Notice Bylaws
Robert S. Reder & Noah Nance | 77 Vand. L. Rev. En Banc 77 (2024)
“It is well established,” under Delaware law, “that stockholders have a fundamental right to ‘vote for the directors that the s[tock]holder[s] want [ ] to oversee the firm.’ ” Sternlicht v. Hernandez, 2023 WL 3991642 (Del. Ch. June 14, 2023) (“Sternlicht”). Moreover, “[s]ubsumed within that fundamental right to vote is the right to nominate a competing slate.” Despite this recognition, the Delaware General Corporation Law “is silent as to how a stockholder may propose a nominee for election.” Strategic Inv. Opportunities LLC v. Lee Enters., Inc., 2022 WL 453607 (Del. Ch. Feb. 14, 2022) (“Strategic Investment Opportunities”). “[T]o fill this gap,” public companies have adopted so-called advance notice bylaws.
Generally, advance notice bylaws require stockholders to provide the corporation with prior notice of their intention to nominate director candidates, together with detailed information about their nominees, their stockholdings, and other relationships with the corporation. As such, “advance notice bylaws have become ‘commonplace’ tools for public companies to ensure ‘orderly meetings and election contests.’"
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Type I vs. Type II: Delaware Courts Discuss Enforceability of Preliminary Agreements
Robert S. Reder & Evan T. Kowalski | 76 Vand. L. Rev. En Banc 101 (2023)
When parties to commercial negotiations reach an agreement on certain basic transaction terms but are not yet ready to proceed to definitive documentation, they frequently will sign a preliminary agreement—usually called a letter of intent or an agreement in principle—to memorialize their then-current intentions. Preliminary agreements typically state that the parties are not obligated to complete the proposed transaction until definitive documentation is fully negotiated and signed. Further, preliminary agreements may or may not address the parties’ obligations to continue good faith negotiations. Dealmakers and their advisors, however, may not fully appreciate the extent to which preliminary agreements may create enforceable contractual obligations. For instance, are so-called preliminary agreements simply “agreements to agree,” or are the parties required to continue to negotiate in good faith, or have the parties created fully binding contracts to conclude the proposed transaction?
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"Chalking up a Victory for Deal Certainty": Chancery Court Reinforces High Bar to Establishing "MAE" in Connection with Impact of Covid-19
Robert S. Reder & Zachary R. Ryan | 76 Vand. L. Rev. En Banc 119 (2023)
Market dislocations associated with the rapid spread of COVID-19 beginning in early 2020 presented parties to pending M&A transactions with two thorny issues under the documentation governing their transactions: first, which party bore the risk of pandemic-related damage to the target business, and second, what measures was the target business either permitted or required to take to mitigate that damage?
Notes & Comments
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A Different Standard for Different Stages: Why Parties Must Be Allowed to “Invoke the Rule” During Oral Depositions
Morgan Scott | 77 Vand. L. Rev. En Banc 1
Two attorneys from the same law firm are representing plaintiffs in two whistleblower qui tam lawsuits against different pharmaceutical companies. One suit has been going on for years and is finally at the trial stage; the other will likely settle after depositions are complete. Attorney A appears at trial ready to question the plaintiff, but there is a problem––the plaintiff’s former supervisor, who is set to testify later in the trial, is sitting in the back of the courtroom. This attorney speaks up: “Your Honor, I invoke the Rule.” The judge, without asking any questions, directs the plaintiff’s former employer to leave the courtroom.
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Road to Reform: The Case for Removing Police from Traffic Regulation
Aaron Megar | 75 Vand. L. Rev. En Banc 13 (2022) |
This Note advocates for the removal of police from traffic-law enforcement and the creation of unarmed Civilian Traffic Forces (“CTF”) at the municipal and state levels. Since the Supreme Court’s decision in Whren, there has been a significant amount of legal scholarship criticizing pretextual policing and the consequential discriminatory traffic policing that was validated by Whren. There is very little published scholarship, however, that whole-heartedly advocates for the removal of police from traffic-law enforcement and the creation of a CTF system. The CTF will be a government organization of unarmed civilians that replaces police in enforcing traffic laws, but will be limited on when they can contact police and what they can do after stopping and ticketing a driver. The intention is to lessen the divide between communities and police by lessening the number of unpleasant encounters, thereby also reducing police violence and abuse.
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Rethinking the Silent Treatment
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 stories with common themes about common perpetrators, the truth became harder to ignore—cases that were once “he said, she said” cases were now “he said, they said” cases. Getting corroborating evidence from other individuals who have experienced similar discrimination at the hands of the same defendant is not only a therapeutic form of solidarity—during litigation, it may be the difference between winning and losing your claim.
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Rationalizing a Spousal Confidential Communications Privilege Fit for the Twenty-First Century
Emily Crawford Sheffield | 74 Vand. L. Rev. En Banc 187 (2021)
In mid-2019, the New Mexico Supreme Court abolished New Mexico’s spousal confidential communication privilege through its decision of State v. Gutierrez, becoming the first and only state to do so.1 When explaining its decision to abandon the spousal confidential communications privilege, the New Mexico Supreme Court stated that the traditional justifications for the privilege of promoting marital harmony and protecting privacy between spouses no longer withstand scrutiny in modern society.2 In so declaring, the court, in essence, proclaimed that the spousal confidential communications privilege serves no purpose in the modern United States.
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Taking an Interest in Inmate Trust Accounts
Charlotte Elam | 73 Vand. L. Rev. En Banc 143 (2020)
The Fifth Amendment's Takings Clause is generally unconcerned about the size of property taken. But is it more concerned about the person from whom the property is taken? When that person is a prisoner, courts have found the relevance of the Takings Clause less clear. The Supreme Court has held that the interest earned on private accounts held by the state-however minimal-is protected by the Takings Clause. Circuits are split, however, on the question of whether that protection extends to the interest earned on inmate trust accounts. This Note examines the circuit split and considers other paths to recovery for inmates. Finally, this Note argues that both stare decisis and the notion of the "positivist trap" in the procedural due process realm indicate that courts should consider the interest earned on inmate trust accounts no differently than they would other trust accounts. In other words, courts should recognize that Takings Clause protection does not stop short of the interest earned on inmate trust accounts.