Article

Understanding the Failures of Market Discipline

David Min
“Market discipline”—the theory that short-term creditors can efficiently rein in bank risk through their self-interested actions—has been a central pillar of banking regulation since the late 1980s, both in the United States and abroad. While market discipline did not prevent the buildup of bank risk that caused the recent financial crisis, the conventional wisdom has been that this failure was due to extrinsic factors that impeded the effective operation of…
Article

Asymmetry as Fairness: Reversing a Peremptory Trend

Anna Roberts
A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is…
Article

Appraisal Arbitrage and the Future of Public Company M&A

Charles R. Korsmo and Minor Myers
In this Article, we demonstrate that the stockholder’s appraisal remedy—long-dismissed in corporate law scholarship as useless or worse—is in the middle of a renaissance in public company mergers. We argue that this surge in appraisal activity promises to benefit public shareholders in circumstances where they are most vulnerable. We first show a sea change in the use of appraisal in Delaware. Relying on our hand-collected data, we document sharp recent…
Note

The Evolution of Federal Courts’ Healthcare Antitrust Analysis: Does the PPACA Spell the End to Hospital Mergers?

Collin Z. Groebe
Traditionally, hospital mergers were seen as a benefit to consumers. That is no longer the case. After years of nonprofit hospitals engaging in price inflation and misreporting charity care, new hospital mergers will be more heavily scrutinized. Specifically, the United States government has implemented policies that are intended to shrink the relevant market, separate hospital services into individual lines, and require more than a good faith standard for evidence of…
Note

The Global Colony: A Comparative Analysis of National Security-Based Foreign Investment Regimes in the Western Hemisphere

Colin Stapleton
In 1975, the United States took steps to prevent its national security from being undermined by foreign investment through the creation of the Committee for Foreign Investment in the United States (CFIUS). CFIUS is an interagency committee meant to review and approve mergers and acquisitions of US companies that have a relation, however tangential, to national security. CFIUS has evolved since its inception from a relatively benign review mechanism to…
Commentary

Young v. United Parcel Service, Inc.: McDonnell Douglas to the Rescue?

William R. Corbett
The Pregnancy Discrimination Act of 1978 can be interpreted in two obvious ways: one interpretation requires employers to make reasonable accommodations for pregnant employees, and the other does not require such accommodations. In Young v. United Parcel Service, Inc., the Supreme Court held that in some cases employees may be able to prove intentional pregnancy discrimination based on an employer’s failure to make accommodations for the pregnant employee when the…