Article
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.