Dean Nora Demleitner speaks this week in Boulder, Colorado at two events.
On Thursday, April 17, 2014, Silicon Flatirons Center at the University of Colorado sponsored “The Future of Law School Innovation“. Dean Demleitner joined panelists Melissa Hart (University of Colorado Law School), William Henderson (Indiana University) and Michael Moffitt (University of Oregon School of Law) in a discussion titled “Change Management: How Can Law Schools, Law Students, and Employers Develop a New Model.
On Friday, April 18, 2014 at the 2014 Associate Deans’ Conference Dean Demleitner participated in a panel titled “The Many Law School Constituents and the Role of an Associate Dean from the Dean’s Perspective.” The panel also included Barry Currier (ABA section of Legal Education) and Dean Dan Rodriguez (Northwestern University School of Law). It was moderated by Dean Kelly Testy of the University of Washington School of Law
Washington & Lee law professor Brian Murchison’s scholarship is cited in “Breathless and Burdened: Dying from Black Lung, Buried by Law and Medicine“. The report from the Center for Public Integrity won a Pulizer Prize in the Investigative Reporting category for its detailed analysis of controversial denials of black lung benefits to coal miners.
Professor Murchison’s 2002 article “Due Process, Black Lung, and the Shaping of Administrative Justice” is cited in Part 3 of the investigative series as it chronicles of the case of former coal miner Ted Latusek.
Read more of Professor Murchison’s scholarship here.
Washington & Lee law professor Timothy Jost published a new article in the New England Journal of Medicine titled “Obama’s ACA Delays – Breaking the Law or Making it work?” (with S. Lazarus). The article, published on April 2, 2014, discusses the legality of the Obama administration’s Affordable Care Act implementation delays.
Professor Jost also recently presented on the topic of health policy and the Affordable Care Act at the University of Pennsylvania, Harvard Medical School, Yale University, the National Conference of Insurance Legislators and The National Association of Insurance Commissioners.
Read Professor Jost’s contributions to Health Affairs Blog for his current analysis of implementing health reform.
Washington & Lee law professor Mark Drumbl spoke as a panelist at the recent annual meeting of the American Society of International Law. On Friday, April 11, 2014, Professor Drumbl joined other international criminal law scholars for a discussion entitled “Punishment and Sentencing in International Criminal Law”.
From the program:
International criminal law (ICL) has sought to establish effective mechanisms to hold accountable perpetrators of atrocity crimes and grave breaches of international humanitarian law. ICL sentencing, however, remains under-examined doctrinally, conceptually, and empirically. This panel will address various aspects of ICL sentencing, including an empirical assessment of the sentencing jurisprudence, the relevance and viability of the domestic experience with punishment, and the advancement of new theories and doctrinal frameworks sui generis to international criminal justice.
This is a subject Professor Drumbl explored in his book Atrocity, Punishment and International Law and continues to address in his scholarship. Read more of Professor Drumbl’s scholarship here.
Washington & Lee law professor Lyman P.Q. Johnson participated in an online symposium hosted by The Conglomerate on the topic of Sebelius v. Hobby Lobby Stores, Inc. and its companion cases. Professor Johnson was invited to join fellow corporate law scholars to debate both sides of the issues presented at the Supreme Court on March 25, 2014.
Professor Johnson’s contributions include:
Corporate Law in the Supreme Court, March 24, 2014
Religious Obligations in the Corporation, March 25, 2014
Corporate Law in the Arguments, March 26, 2014
The Supreme Court and Corporate Purpose, March 27, 2014
Read more of Professor Johnson’s scholarship here.
Washington & Lee law professor David Baluarte will speak at the Harvard Kennedy School on Tuesday, April 8, 2014. Professor Baluarte will participate in a panel discussion titled “Migrant Descendants in the Dominican Republic, Nationals or Foreigners?” with Jacqueline Bhabha and Bridget Wooding. The panel will address the impact of recent constitutional law reform on Sept 26, 2013, in the Dominican Republic that has effectively removed the right to nationality of over 200,000 Dominicans of Haitian descent.
Professor Baluarte joined Washington and Lee as an Assistant Clinical Professor of Law in 2013. He is the Director of the Immigrant Rights Clinic. Read more about Professor Baluarte’s scholarship here.
In the January 2014 issue of PS: Political Science & Politics, Washington & Lee visiting professor of law Todd Peppers was recognized for his article “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas” (with M. Giles & V. Hettinger). Authors Salmon A. Shomade, Roger E. Hartley, and Lisa M. Holmes, in their article “Lower Federal Court Judicial Confirmation Fights: A Critical Review of the Empirical Literature and Future Research Directions” identified the work as the second-most influential political science article on lower court confirmation politics in the last twenty years. It has been cited over 200 times.
Professor Peppers co-authored and published “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas” in Political Research Quarterly in 2001.
From the abstract:
The importance of lower federal courts in the policymaking process has stimulated extensive research programs focused on the process of selecting the judges of these courts and the factors influencing their decisions. The present study employs judicial decisionmaking in the U.S. Courts of Appeals as a window through which to reexamine the politics of selection to the lower courts. It differs from previous studies of selection in three ways. First, it takes advantage of recent innovations in measurement to go beyond reliance on political party as a measure of the preferences of actors in the selection process. Second, employing these new measures it examines the relative effects of the operation of policy and partisan agendas in the selection process. Third, a more complex model of selection is assessed than in most previous studies-one that expressly examines the role of senators and senatorial preferences in the selection process. The results clearly suggest that the politics of selection differ dramatically depending upon whether or not senatorial courtesy is in operation. The voting behavior of Courts of Appeals judges selected without senatorial courtesy is consistent with the operation of a presidential policy agenda. Among judges selected when senatorial courtesy is in play, the linkage between presidential preferences and judicial outcomes disappears.
Washington & Lee law professor Lyman P.Q. Johnson will publish in the forthcoming issue of the Washington & Lee Law Review. The article, The Dwindling of Revlon (with Rob Ricca) was recently reviewed by another Washington and lee law professor, David Millon at Jotwell: Corporate Law.
The review is titled What’s Left of Mandatory Shareholder Primacy? and was published on March 18, 2014.
Washington & Lee law professor Christopher Seaman is once again featured on SSRN’s top new papers lists. Professor Seaman’s forthcoming piece in the Virginia Law Review, The Case Against Federalizing Trade Secrets, is featured on SSRN’s top 10 new papers in the intellectual property subject area.
The paper also appears on top 10 lists in related subject areas and eJournals including Patents, Innovation & Intellectual Property Law & Policy, Innovation Policy Studies and Political Science of Innovation, Entrepreneurship & Law eJournal, Environment for Innovation eJournal, IO: Productivity, Innovation & Technology eJournal, Innovation & Geography eJournal and Innovation Areas eJournals.
Congratulations to Professor Seaman!
Washington & Lee Law Professors Lyman Johnson and David Millon have just posted a critique of a forthcoming piece by Professors Bebchuk and Jackson. Their post is available at the Professor Bainbridge blog:
Preempting Professors Bebchuk and Jackson: Poison Pills, State Corporate Law, and the Williams Act
Lyman Johnson & David Millon
Washington & Lee University School of Law
Professors Lucian Bebchuk and Robert Jackson recently posted a provocative paper,Towards a Constitutional Review of the Poison-Pill, forthcoming in the Columbia Law Review. The paper, regrettably, makes several claims that are flatly wrong, and it also misreads the Williams Act.
First, Professors Bebchuk and Jackson assert that “corporate law scholars have overlooked the unresolved validity of state-law poison-pill rules”; such scholarship has “focused exclusively on anti-takeover statutes, ignoring the validity of state-law poison-pill rules”; and, [the Bebchuk-Jackson paper is the] “first systematic analysis of the possibility that these rules are preempted by the Williams Act…”
These assertions are incorrect. Twenty-five years ago, we wrote a lengthy article that pointedly examined possible Williams Act preemption of all non-statutory state corporate law rules, including those sanctioning poison pills, that might impede corporate takeovers. We took no final position on the preemption issue in that piece (we addressed that larger question in a companion article published in the Michigan Law Review discussed below) but instead sought only to extend the then lively preemption debate beyond its narrow focus on anti-takeover statutes. Thus, we expressly considered whether state legal rules condoning poison pills might be preempted, concluding, critically, that if “the Williams Act mandates shareholder autonomy, this state law rule clearly undermines that federal policy.” We also explicitly noted that, under the so-called “meaningful opportunity to succeed” standard crafted by federal district judges in Delaware, state common law rules upholding poison pills lack just such a safety valve, and thus may be preempted under that test.
Moreover, we did not confine our analysis to poison pills, but more broadly subjected to preemption analysis all state corporate law rules that might impede takeover bids, including Delaware’s quite extensive judge-made law of takeovers. State decisional law, like state statutes, must, of course, yield to federal law under the Supremacy Clause. Unlike Professors Bebchuk and Jackson, therefore, we were able to explain (in our footnote 15) precisely why it is not the poison pill plans themselves but, rather, judicial rulings upholding them that comprise the state “law” subject to constitutional review. This is a particularly important point for any preemption attack on Delaware poison pill law because it is almost exclusively common law in origin. In focusing on statutes authorizing poison pills and, in the absence of statute, on poison pills as “private contracts,” Professors Bebchuk and Jackson therefore continue to underestimate the potential breadth of the preemption issue we first identified in 1989 and actually make the preemption analysis as to non-statutory poison pills much more elaborate than it needs to be.
Second, Professors Bebchuk and Jackson state that “no court has ever expressly considered a preemption challenge to the validity of state-law poison-pill rules.” That too is an inaccurate statement. In 1995, the Fourth Circuit Court of Appeals rejected a preemption challenge to four of Virginia’s corporate statutory provisions, including a provision authorizing poison pills and a provision codifying the director standard of conduct as being ‘good faith business judgment.” The Williams Act challenge thus went far beyond the Control Share Acquisition and Business Combination statutes. The Fourth Circuit considered the argument made by Tyson Foods, the challenger, that Virginia’s statutes were, in concert, so potent that they made it “impossible” in practice to succeed with a bid. The Court, in forthrightly rejecting the Delaware federal court’s “meaningful opportunity to succeed” standard, observed that the Williams Act did not protect bidders, and upheld all of Virginia’s laws, including the pill provision, against both Supremacy and Commerce Clause attacks. The Supreme Court denied certiorari. Presumably the same analysis would apply to state court judgments validating poison pills in the absence of a statute.
Third, and perhaps of greatest importance, Bebchuk and Jackson’s arguments about the Williams Act’s preemption of poison pill rules are faulty regardless of whether they are sanctioned by statute or judicial decision. As we explained at length in our Michigan Law Review article cited above, the Williams Act does not mandate a federal pro-takeover policy. Rather, Congress chose not to take a position on one side or the other of the then novel debate about the costs and benefits of hostile takeovers. For example, the Senate Report on the bill that became the Williams Act states that it “avoids tipping the balance of regulation either in favor of management or in favor of the person making the hostile takeover bid.” SEC Chairman Cohen echoed this sentiment when he stated that “[t]he Commission does not believe that any bill should be adopted which would either encourage or discourage takeover bids . . ..” Instead, Congress’ objective was the more modest one of requiring disclosure of information relevant to shareholders confronted with a tender offer (consistent with the basic premise of federal securities regulation) and alleviating pressures on shareholders to tender who might otherwise prefer to hold their shares.
As we noted in our Michigan piece, we think the mistake that scholars like Bebchuk and Jackson make when they ascribe preemptive force to the Williams Act results from a mistaken equation of Congressional assumptions about the world of hostile takeovers in 1968 with Congressional intentions about the appropriate balance of power between target company management and shareholders then and in the future. In 1968 state corporate law did little to limit the freedom of shareholders to decide for themselves whether to accept a hostile bid. Congress took that fact for granted and sought to enhance the ability of shareholders to make these choices in an informed, deliberate manner within the existing legal framework. It is wrong, however, to claim that Congress sought not only to make a limited adjustment to the then current legal regime but sought also to in effect freeze that larger context and preserve it for future generations. In 1968, Congress had no reason to foresee that by the late 1980s state legislation and judicial opinions would confer broad authority on target company management to block shareholder access to hostile bids. That was not the problem that Congress chose to address in the Williams Act. That statute thus is irrelevant to current debates about the lawfulness of poison pills and other state law anti-takeover devices. Those seeking to resolve such questions in favor of shareholder autonomy need to look elsewhere for legal support.
Shareholder decisions about whether to accept hostile tender offers are more than simply choices about whether to sell or hold securities. Because hostile bids are designed to achieve a change of control, shareholder responses have important corporate governance implications. In this respect, efforts to tie target company management’s hands by attacking the legality of poison pills are not just an effort to give target company shareholders the opportunity to realize short-term gains. They are also part of the larger shareholder empowerment agenda that would limit the discretion of management to determine the long-run best interests of the corporation and its shareholders. That’s a bad idea in other contexts and it’s a bad idea here too.
 Lyman Johnson and David Millon, Does the Williams Act Preempt State Common Law in Hostile Takeovers?, 16 Sec. Reg. L.J. 339 (1989).
 Lyman Johnson and David Millon, Misreading the Williams Act, 87 Mich. L. Rev. 1862 (1989).
 WLR Foods, Inc. v. Tyson Foods, Inc., 65 F.3d 1172 (4th Cir. 1995).
 516 U.S. 1117 (1996).