Issue 8

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.

Rosenberger and Davey

In Rosenberger (1995), the Supreme Court decided that the University of Virginia could not exclude religious organizations from an activities fund that subsidized student organizations. Nine years later, the Court in Locke v. Davey held that Washington could exclude students of devotional theology from a generally available scholarship program; there was, in the Court’s words, “play in the joints” between what the Establishment Clause forbids and what the Free Exercise Clause requires. The cases seemed to contradict one another.

This Note explores whether Rosenberger announced a broad principle of nondiscrimination with respect to religion and whether Davey reneged on that promise. There is a strong, though by no means dispositive, argument that Rosenberger embodies a nondiscrimination principle. Assessing whether the principle has applicability in a wider array of cases, such as Davey, requires analysis of three lines of precedent—“play in the joints” cases, governmental funding cases, and public forum cases. Daveyessentially inaugurated a new era of Religion Clauses jurisprudence by reinvigorating the theory of “play in the joints.” Consequently, hardly any scholarship has addressed the theory. Scholars have also neglected how Davey affected public forum cases (likeRosenberger). Most significantly, no analysis to date has explored the interaction of these three lines of precedent. My analysis is generally positive in nature, although it has important normative implications, particularly in light of the tension betweenRosenberger and Davey.

Finally, I consider how courts have treated Rosenberger. Culminating with Davey, courts consistently have refused to recognize a broad nondiscrimination principle, thereby sounding the death knell for Rosenberger.

©Virginia Law Review Association. All rights reserved.