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Chancery Court Dismisses Revlon Claims without Considering Directors\u27 Potential Corwin Defense
Get PDFJarden Appraisal: Delaware Supreme Court Affirms Chancery Court\u27s Exclusive Reliance on Unaffected Market Price in Determining Fair Value under DGCL Sec. 262
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Chancery Court again Refuses Preliminary Dismissal due to Well-Pled Allegations that Sale Process Orchestrated by Target Company Fiduciary Failed to Satisfy Revlon Standards
Get PDFThe Threat of Deepfakes in Litigation: Raising the Authentication Bar to Combat Falsehood
Get PDFDeepfakes are all over the internet—from shape-shifting comedians and incoherent politicians to disturbingly realistic fake pornography. Emerging technology makes it easier than ever to create a convincing deepfake. What used to take significant time and money to develop is now widely available, often for free, thanks to rapid advances in deepfake technology.
Deepfakes threaten individual rights and even democracy. But their impact on litigation should not be overlooked. The US adversarial system of justice is built on a foundation of seeking out the truth to arrive at a just result. The Federal Rules of Evidence serve as an important framework for this truth-seeking mission, and the authentication rules, in particular, should play a key role in preventing deepfake evidence from corrupting the legal process.
This Article looks at the unique threat of deepfakes and how the authentication rules under the Federal Rules of Evidence can adapt to help deal with these new challenges. It examines authentication standards that have emerged for social media evidence and suggests a middle-ground approach that redefines the quantity and quality of circumstantial evidence necessary for a reasonable jury to determine authenticity in the age of deepfakes. This middle-ground approach may raise the evidentiary bar in some cases, but it seeks to balance efficiency with the need to combat falsehood in the litigation process
Many Minds, Many MDL Judges
Get PDFMy focus here is on a cost that has been surprisingly neglected by scholars but may be the greatest cost of them all: the accurate adjudication of legal claims and defenses. I suspect it is intuitive to most of us that asking one person to decide something instead of inviting many other people to weigh in probably reduces the quality of the resulting decision. There is a literature that formalizes this intuition called many-minds scholarship. It proceeds from a famous mathematics proof known as the Condorcet Jury Theorem. Although some people have questioned the applicability of many-minds theories to legal decisionmaking, if there were ever a legal context in which they could be applicable, I argue it is in the context of our MDL system.
If we find this literature persuasive, how can we bring more minds to bear on the legal questions in MDLs without undoing too many of the benefits of consolidation? Although I cannot undertake a full cost-benefit analysis here, I sketch out a partial analysis for two ideas: (1) more appellate review of decisions by MDL judges and (2) assigning MDLs to panels of judges instead of just one. The first idea fares worse on a cost-benefit analysis because appeals are sequential and take so long to resolve. Moreover, commentators have discussed increasing appellate review for many years and it has thus far been difficult to implement. Not only would it require lawmaking, but the contours of the proposal have been hard to write down on paper. I argue that these considerations make the second idea more appealing. Yet, it has received very little scholarly attention and requires no change in the law to implement
Secrets, Lies, and Lessons from the Theranos Scandal
Get PDFTheranos, Inc., the unicorn startup blood-testing corporation, was ultimately laid low by a former employee whistleblower. The experience of that whistleblower during and after her employment illuminates detrimental secrecy practices within the startup sector, as well as legal and practical barriers to corporate accountability. Theranos sought to avoid exposure by cultivating an environment of secrecy and intimidation, and by aggressively extracting and enforcing nondisclosure agreements. The legal landscape for whistleblowers facilitated this strategy: while whistleblowing employees enjoyed certain protections under anti-retaliation statutes, trade secrets statutes, and common law contract principles, these protections were neither readily accessible nor certain. This Article critically examines the contours and ambiguities of those legal frameworks, using the Theranos case study, and offers observations on the need for a harmonized public policy to facilitate private sector whistleblowing
Judicial Deference to Administrative Interpretation of Statutes from a Comparative Perspective
Get PDFThis Article examines, from a comparative perspective, how judicial deference to administrative interpretation of statutes takes place and whether it is constitutionally admissible. Since constitutions and statutes rarely deal expressly with this issue, courts may have to determine whether or not such deference is permitted, and, if so, whether generally or in certain cases only. The constitutional, legal, and judicial context prevailing in each country is particularly important in this regard. Nevertheless, it may provide courts with little, if any, guidance on the specific issue of deference to administrative statutory interpretation. In this respect, a nuanced approach along all or part of the following lines may be appropriate: When (i) in light of the applicable methods and canons of construction, a statute allows a margin of interpretation, (ii) the administrative interpretation of the statute remains within this margin, and (iii) the applicable international, constitutional, statutory or other constraints permit or, at least, do not exclude judicial deference either generally or in the case at hand, then courts may or, depending on the country, must defer to the administrative interpretation of the statute, especially when or, depending on the country, provided that (iv) this interpretation requires non-legal expertise, (v) the administrative body enjoys an asymmetry of such expertise as compared to courts, and (vi) the legislature was or should have been aware of both this necessity and this asymmetry. The level of courts\u27 expertise in the relevant subject-matter should, in principle, be determined after taking account of the measures available to judges, including the appointment of experts. The proposed test may notably be followed where the disputed interpretation requires a prediction, appraisal or assessment
