Confronting the Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a Proposal for Reform

Jill E. Fisch, Sean J. Griffith & Steven Davidoff Solomon

93 Texas L. Rev. 557

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In recent years, it has become common practice for a company to be sued by its shareholders after every corporate merger. Many of these suits are settled quickly for minor disclosures, and very large fees for the attorneys of the plaintiff-shareholders. In this Article, Professors Fisch, Griffith, and Davidoff provide an empirical analysis on the worth of these disclosures and argue for changes to the current structure of merger litigation in order to prevent these costly merger suits.

Deference Asymmetries: Distortions in the Evolution of Regulatory Law

Melissa F. Wasserman

93 Texas L. Rev. 625

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Administrative agencies and law increasingly play a major role in the government of our society. However, certain legal and institutional aspects of administrative law have created deference asymmetries—differences in the level of deference given to an agency’s judgments based on the ruling of that judgment. These asymmetries have the potential to drive the development of regulatory law in a direction that benefits the entities that agencies are meant to regulate. In this article, Professor Wasserman identifies these asymmetries and explores the implications that they have for administrative law.

Family Law’s Loose Canon

Joanna L. Grossman

93 Texas L. Rev. 681

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Professor Grossman reviews Professor Hasday’s book on the development of the “family law canon.” which Hasday defines as a “series of overriding stories that purport to make sense of how the law governs family members and family life.”

At Sea, Anything Goes? Don’t Let Your Copyrights Sail Away, Sail Away, Sail Away

Jeff Pettit

93 Texas L. Rev. 743

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Cruises are big business, contributing nearly $44.1 billion to the US economy each year. The shows that cruise liners use to entertain their passengers are a major part of that industry. However, these shows are generally performed in international waters, without paying the proper royalties, and arguably outside the reach of the US Copyright laws. In this note, Mr. Pettit addresses this issue by first briefly explaining the relevant copyright and licensing provisions. He then recounts the only attempt to litigate high seas copyrights and applies the predicate-act doctrine to the facts of that case. He then urges the courts and legislators to tighten regulation on cruise ships by closing the many inequitable loopholes that exist.

Loose Constraints: The Bare Minimum for Solum’s Originalism

Ethan J. Ranis

93 Texas L. Rev. 765

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What does or does not constitute originalism continues to be important when drawing lines in legal academic debate. In order to cast some light on this issue, Mr. Ranis examines Lawrence B. Solum’s theory of originalism and seeks to identify the ‘bare minimum’ theory that Solum would consider to be originalist. Mr. Ranis concludes that Solum’s current definition of originalism is too vague to truly capture the state of current constitutional debate.

The Intellectual Origins of (Modern) Substantive Due Process

Joshua D. Hawley

93 Texas L. Rev. 275

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Almost fifty years after the Supreme Court revived the doctrine, substantive due process remains a puzzle. In this Article, Professor Hawley excavates the intellectual origins of modern substantive due process and relates that history to the doctrine’s development. Ultimately, he offers a thoroughly revised account of the modern doctrine’s beginnings, development, and meaning. This revised account challenges a good deal of conventional wisdom, including the claims of recent Lochner revisionists who argue that modern substantive due process is in one way or another an intellectual extension of the Lochner era. It further challenges the claims that the modern doctrine can be linked directly to the Constitution’s original meaning. Instead, this Article shows modern substantive due process for what it is: an original, modern, and controversial reading of liberty.

The Political Economy of Local Vetoes

David B. Spence

93 Texas L. Rev. 351

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As the controversy over fracking continues to sweep the nation, many local communities have enacted ordinances banning the practice, creating conflicts between these ordinances and statewide regulation schemes. This has given rise to state–local preemption challenges within state courts. In this Article, Professor Spence analyzes these conflicts, focusing on the best way to distribute the costs and benefits of fracking and how courts have attempted to address these distributional concerns. He begins by describing the conflicts between state law and local ordinances and the court decisions that have resolved these preemption issues. He next discusses how future takings claims would affect the distribution of the costs and benefits of fracking.

Bottlenecks and Antidiscrimination Theory

Samuel R. Bagenstos

93 Texas L. Rev. 415

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Professor Bagenstos reviews Professor Fishkin’s arguments for switching the focus of antidiscrimination law towards an antibottleneck theory.