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BOOK REVIEW: The Mighty Roe Has Fallen (Probably): A Call to Action as an Antidote to Despair
Get PDFReviewing CONTROLLING WOMEN: WHAT WE MUST DO NOW TO SAVE REPRODUCTIVE FREEDOM. By Kathryn Kolbert & Julie Kay. New York, NY: Hachette Books, 2021. 304 pp., $29.0
Bardy Diagnostics v. Hill-Rom: New Lessons on Material Adverse Effect Clauses
Get PDFIn Bardy Diagnostics, Inc. v. Hill-Rom, Inc., the Delaware Court of Chancery once again had to apply a Material Adverse Effect clause to determine whether an acquirer was required to close an acquisition. The case develops the law of MAEs in several important ways. First, the agreement between the parties substituted for the customary MAE objects (e.g., the company’s business, financial condition, and results of operations) a bespoke defined term. The court interpreted the definition of that term in a way that made it functionally equivalent to more customary MAE objects; then, consistent with an unacknowledged trend in Delaware law, the court ignored the MAE objects and inquired into the effect of the alleged MAE on the value of the company as reasonably understood in accordance with accepted principles of corporate finance. Second, in performing that inquiry, the court faced a situation in which, although the target’s cashflows had decreased substantially, it was unclear whether they would soon rebound to historical levels. Although the court focused on whether the reduction in cashflows would be “durationally significant,” this article argues that the question would better be framed in terms of how the event alleged to be a Material Adverse Effect affected a reasonable understanding of the probability distribution of the company’s future cashflows and their present value. Third, and probably most important, the court’s opinion expressly acknowledges and consistently applies a distinction between events and effects, that is, between a capitalized “Material Adverse Effect,” which is an event that has or would reasonably be expected to have a material adverse effect on the target, and that material adverse effect itself, which is caused by the event. Unlike Akorn and KCake, Bardy thus makes clear that exceptions in MAE definitions apply to events, not the effects they cause. Finally, the opinion in Bardy makes important points about disproportionality exclusions in MAE definitions, including with respect to determining the control group against which adverse effects on the company should be measured and with respect to construing the “to the extent” language in such exclusions. While agreeing that the court’s interpretation of the contract reflected the intentions of the parties, this article argues that the typical contract language, read literally, involves the same confusion of events and effects so common in discussions of MAE clauses and suggests that drafters should replace the typical language with language that more accurately reflects the intentions of the parties
Teach Your Citizens Well: Demeaning Government Speech, Equal Protection Animus, and Government\u27s Legitimate Power
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Cracks in the Clean Air Act: Fixing the Foundation of US Climate Policy
Get PDFThe urgent need to cool the atmosphere and slow the effects of climate change is evident all around us. However, half of Congress and large swaths of the American public are still not on board, and the highest Court in the land just knee-capped the EPA’s power to regulate effectively. This note looks at the implementation and amendment of the Clean Air Act and subsequent deviation from the Act’s bipartisan roots to its current highly political polarizing status. It then reviews twenty-first century caselaw affecting climate policy to highlight statutory and judicial barriers to progress. Culminating with the recent Supreme Court opinion in West Virginia v. EPA, and its substantial step to curtail administrative response, and the likely effect on President Biden’s climate agenda in the wake of the passage of the Inflation Reduction Act. After thorough analysis of present barriers to climate progress, this note offers a two-part solution to effectuate lasting change. First, it concludes that amending the Clean Air Act is necessary to prevent endless court battles and rectify the damage done by the grandfather clause for existing power plants. Second, it proposes a political canvassing solution to work in tandem with the government’s clean energy initiatives in hopes of healing the partisan divide and making the road to amendment passable
Breaking Down Digital Walls: The Interface of International Trade Law and Online Content Regulation through the Lens of the Chinese VPN Measure
Get PDFThe interface of international trade law and online content regulation is problematic and complex. This Article examines the consistency of the regulation pertaining to Virtual Private Network (VPN) services in China with WTO law. It argues that although WTO law may be effective in disciplining protectionist aspects of online content regulations, they can neither scrutinize domestic values underlying such regulations nor guarantee the free flow of online content. Thus, existing rules contained in international trade agreements play a limited role in balancing domestic socio-cultural and political values vis-à-vis online censorship with an open, globally interconnected internet enabling seamless digital flows. The several ongoing dialogues in relevant global, multistakeholder, and transnational fora could eventually generate international consensus on critical aspects of online content regulation such as disinformation and fake news. But with respect to the resolution of trade disputes resulting from such regulations, trade tribunals must acknowledge that the regulation of content is entails politically and culturally sensitive issues, and therefore certain regulatory differences among countries may be entirely irreconcilable. Therefore, when such disputes arise before a trade body, both caution and pragmatism are necessary in applying international trade law to such measures. Further, although governments are looking into varied aspects of digital and data regulation in ongoing plurilateral and bilateral trade negotiations, they are unlikely to reach any meaningful agreement on digital trade provisions that limit their ability to regulate online content
Invaluable: Value Added Tax, Post-Colonialism, & the United States of America
Get PDFValue-added tax is occasionally proffered as an alternative or even an addition to the federal income tax system. Value-added tax, or VAT, is widely accepted throughout Europe and indeed the world, but the United States remains a notable exception. This choice remains an intriguing one to revisit from time to time. This Note, however, will argue that VAT is arguably a by-product of the colonial frameworks that once dominated our global consciousness, and therefore, that VAT is not right for the United States. The Note will, where appropriate, compare and contrast key differences between the system, or systems, of taxation at work in the United States and VAT. The Note ultimately reaches the conclusion that a switch to (or even from) VAT is unlikely to be practical