Legal Scholarship Repository (University of Tennessee College of Law)
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A Theory of Substantive Standards of Review: The Case of Corporate Law
No full textIn Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court limited deference to universities. In West Virginia v. EPA, the Court reduced its deference to administrative agencies. In Coster v. UIP Cos., Inc., the Delaware Supreme Court limited deference to boards of directors, proclaimed a new standard of review, and then retracted the new standard of review (maybe). Common to these constitutional, administrative, and corporate law cases is unpredictability, uncertainty, and inconsistency in the use and application of substantive standards of review. This doctrinal chaos is explicitly acknowledged by the very judges that formulate these standards—and these acknowledgments are evenly spread across the political map: Justice Sotomayor described constitutional standards of review as “perplexing;” Delaware’s Chancellor McCormick proclaimed that “the struggle is real” in response to a development in corporate standards of review; and Justice Scalia attested that constitutional law’s tiers of scrutiny are “no more scientific than their names suggests.”
This Article develops a comprehensive theory that fixes our law of substantive standards of review. Specifically, it shows that the courts have created a haphazard conflation of standards of review, types of scrutiny, and kinds of deference. This conflation has resulted in doctrines that erroneously categorize standards of review on the basis of degree rather than kind. To fix this disarray, the theory offered by this Article looks under the hood of the substantive standards of review and provides a full conceptual and normative guide for the administration of claim-of-fact, scienter, and action scrutiny, and the corresponding epistemic, moral, and institutional deference. This Article further models the afore as either independent or auxiliary standards of review and introduces the widespread but unacknowledged use of scrutiny modifiers.
In transitioning from theory to legal and policy implications, the Article confines its discussion to corporate law. The justification for this methodological move is twofold. First, it provides an exhaustive account of all corporate standards of review, which, in turn, establishes the profound importance and utility of this Article’s theory. Second, it sets the framework for constitutional and administrative law scholars and practitioners to fully develop the doctrinal changes needed in those areas
Court Statistics Project
No full textThe Court Statistics Project (CSP) provides a systematic means to develop a valid, uniform, and complete statistical database that details the operation of state court systems. It provides high-quality, baseline information on state court structure, jurisdiction, reporting practices, and caseload volume and trends. Effective management and planning at the local, state, and national levels depend on accurate, consistent, and comparable information to assess the business of the state courts, identify trends in litigation, and estimate future levels of demand. The CSP fulfills the vital role of translating diverse state court caseload statistics into a common framework that all states use when establishing their respective goals and policies. Information for the CSP’s national caseload databases comes from published and unpublished sources supplied by state court administrators and appellate court clerks
Digital Media Law Project
No full textThe Digital Media Law Project (DMLP) was founded with the mission through five core initiatives: (1) its detailed Legal Guide on media and business law topics for non-lawyers; (2) its searchable Database of Legal Threats directed at online publishers; (3) its nationwide attorney referral service, the Online Media Legal Network; (4) its Research & Response initiative to address breaking issues and trends in digital media law; and (5) its regularly-updated Blog and Newsletter on current issues in media law, technology law and journalism. Also the DMLP publishes a comprehensive legal guide for individuals and organizations involved in independent online publishing and journalism. The guide covers topics ranging from how to form a business to how to use freedom of information and open meetings laws to get access to information, meetings, and governmental records, as well as other legal subjects such as risks associated with online publication, including discussion of defamation and privacy torts; legal issues related to news gathering; use of copyrighted and trademarked materials; and special risks associated with covering elections
