Northwestern University Law Review

Scholarly journal that features legal commentary, emerging developments, topic analysis, and controversial issue debate.

Articles from Vol. 96, No. 2, Winter

A Bird in the Hand and Liability in the Bush: Why Van Gorkom Still Rankles, Probably
They say opportunity is like the flight of time. It keeps on rolling; it'll pass you by. Take a lesson from a fool's advice. Opportunity knocks once, not twice.1 I. INTRODUCTION Seventeen years have passed since Smith v. Van Gorkom (the Trans Union case)...
A Critique of the Narrow Interpretation of the Commerce Clause
Congress has exercised its power "to regulate Commerce ... among the several States"1 to govern not only obviously economic matters (such as commercial transportation, antitrust, and agriculture), but also seemingly noncommercial subjects as diverse...
A Kinder, Gentler Critique of Van Gorkom and Its Less Celebrated Legacies
We all know about the treatment in Smith v. Van Gorkom' of the director's fiduciary duty of care. It has been discussed extensively, and we continue to discuss it today, over sixteen years later. It would be unfortunate, however, if Van Gorkom were widely...
Appealability of Class Certification Orders under Federal Rule of Civil Procedure 23(F): Toward a Principled Approach
INTRODUCTION Since the early 1970s, the class action has enjoyed a "Jekyll and Hyde" reputation as both a "Shining Knight" and a "Frankenstein Monster."1 There is little debate, however, that the number of class action suits filed is on the rise.2 In...
Dangerous Liaisons: Corporate Law, Trust Law, and Interdoctrinal Legal Transplants
People were shocked by Smith v. Van Gorkom.1 Teeth were gnashed. The Delaware General Corporate Law ("GCL") was amended. The world went on. But why were people so surprised and so upset? As we all know, corporate law emerged out of the law of trusts...
Deal-Protection Measures and the Merger Recommendation
I. INTRODUCTION The Trans Union case, formally known as Smith v. Van Gorkom,1 is renowned for its application of the duty of care. In this Article, we ignore this famous holding to focus instead on another aspect of the decision. One of the more persistent...
Delaware's Takeover Law: The Uncertain Search for Hidden Value
It is easy sport to criticize the Delaware takeover cases as inconsistent with the empirical evidence, each other, and a sensible allocation of power between managers and shareholders. We in fact believe all of these things. Here, however, we offer a...
Fairness Opinions and the Business Judgment Rule: An Empirical Investigation of Target Firms' Use of Fairness Opinions
A man's judgment cannot be better than the information on which he has based it.1 I. INTRODUCTION In 1985, the Delaware Supreme Court made a decision that has had a profound impact on corporate governance, the market for corporate control, and the financial...
In Praise of Procedure: An Economic and Behavioral Defense of Smith V. Van Gorkom and the Business Judgment Rule
Every year, corporate law professors across the nation present their students with a doctrinal enigma. Case law declares that corporate directors owe their firms a fiduciary duty of care. In other words, directors must manage the firm with the care of...
Louisiana's Blanket Primary after California Democratic Party V. Jones
Comments I. INTRODUCTION Political parties have become an integral part of American democracy.1 The chief function of political parties in the United States is the selection of nominees for public office.2 Through the nomination process, political parties...
Optimal Defaults for Corporate Law Evolution
I. CHOOSING DEFAULTS IN A DYNAMIC BUSINESS ENVIRONMENT This Article focuses on a question that has, in our view, received inadequate attention in the literature on corporate law theory and policy: What approach should guide courts and legislators when...
Realigning the Standard of Review of Director Due Care with Delaware Public Policy: A Critique of Van Gorkom and Its Progeny as a Standard of Review Problem
In this commentary,1 we examine the role of Smith v. Van Gorkom2 as part of a continuum of Delaware judicial decisions that, we submit, gives insufficient weight to the substantive policy judgments underlying the gross negligence standard of review that...
Rethinking Mandatory Minimums after Apprendi
INTRODUCTION The Constitution requires that prosecutors prove beyond a reasonable doubt every element that constitutes the crime charged against a criminal defendant.1For many years, legislatures have sidestepped this constitutional requirement by denying...
Smith V. Van Gorkom: Insights about C.E.O.S, Corporate Law Rules, and the Jurisdictional Competition for Corporate Charters
INTRODUCTION After fifteen years, Smith v. Van Gorkom remains intellectually frustrating. The annoyance stems from the fact that, while the decision may have dramatically improved the quality of deliberations in corporate boardrooms, the imposition of...
Van Gorkom and the Corporate Board: Problem, Solution, or Placebo?
Symposium EDITOR'S NOTE More than sixteen years after the Delaware Supreme Court issued its watershed opinion in Smith v. Van Gorkom, scholars and business leaders continue to debate the wisdom of the decision, to analyze its real and perceived effects...
Van Gorkom's Legacy: The Limits of Judicially Enforced Constraints and the Promise of Proprietary Incentives
Smith v. Van Gorkom1 is at the center of the most remarkable period of judicial activity in corporate law in the twentieth century. Its appearance in January 1985 came eleven months after Aronson v. Lewis and twenty-three months after Weinberger v. UOP,...
Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.