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The State of State Anti-takeover Law

This Article is the first to examine systematically state antitakeover law outside Delaware. It conducts a research of all available cases to find whether states with pill endorsement and other constituency statutes follow Delaware’s enhanced fiduciary duties or replace them with weaker standards. It finds substantial variations from Delaware’s law. 

Unlike Delaware, most of the states with relatively strong other constituency and pill endorsement statutes do not impose enhanced fiduciary duties on managers in change-of-control situations. Instead, they apply only the ordinary business judgment rule to management’s use of antitakeover tactics.

This Article has implications for antitakeover law, the market for corporate law, and the desirability of federal intervention. In particular, it provides support for adopting Delaware’s enhanced fiduciary duties—Unocal, Revlon, and Blasius—as federally imposed minimum standards. This would not only improve state antitakeover law outside Delaware, but may also result in improvements to Delaware law since Delaware is currently dragged down by other states.

Making Good on Good Intentions

Recent employment discrimination law has focused on proposals to make it easier for plaintiffs to win Title VII cases when the circumstances underlying their claims are ambiguous. While some of the proposals are sound, they fail to take into account the costs of further legal presumptions and controls on people’s commitment to nondiscrimination goals – or what the article calls “good intentions.” Without such attention, reform efforts will gravitate toward strategies that (1) short-circuit the fundamental causation requirements of Title VII, increasing the risk of false positives and associated anxieties, (2) create a surveillance mentality, and (3) reduce people’s sense of autonomy, competence, and connectedness. The article brings together several strands of social science research to show that these effects weaken workplace trust, legitimacy, and acceptance of nondiscrimination norms. Although the increased pressure may produce compliance in the short term, the article contends that it may also undermine the affirmative commitment necessary over the long term to change the attitudes and beliefs that lead to present-day discrimination. Continued positive change requires not only strong nondiscrimination norms, but also conditions enabling people to internalize those norms. What promotes, or defeats, norm internalization is not an exact science, and is complicated by differences in individual and workplace circumstances. The article reviews the relevant social science literature and evaluates legal and workplace strategies for reducing workplace discrimination in light of it.

The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9

This paper argues that § 57-9 of the Code of Virginia interferes with the free exercise of religion in violation of the Federal Constitution. Section 57-9 is at the forefront of a national dispute over church property resulting from the departure of conservative congregations from the Episcopal Church of the United States. The statute purports to determine property rights in the event of a church division, but in doing so challenges the constitutional boundaries of a religious institution’s free exercise rights. Although Virginia’s statute is unique, its implications with respect to the ability of the government to regulate religious polity and the role of courts in resolving church property disputes are broadly applicable and recent litigation involving the statute is being watched closely across the county.

Section 57-9 highlights historic uncertainty regarding the scope of free exercise rights for religious institutions, particularly in the context of church property. In the face of this uncertainty, three possible applications of the statute are addressed. One considers the statute most narrowly within the context of the “neutral principles of law” approach for resolving church property disputes. A second discusses § 57-9 as a neutral and generally applicable law. Finally, a third considers the statute broadly, as a special statute that regulates property holdings of religious institutions. Despite the various ways to characterize the statute, under each view § 57-9 violates the free exercise rights of the religious institutions it regulates.

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