Tolle Lege

An online component to the Villanova Law Review.

Volume 59, Spring 2014

 

MAJORITY-OF-THE-MINORITY VOTING AND FAIRNESS IN FREEZE-OUT MERGERS

Richard A. Booth

Page 87

Abstract: Majority-of-the-Minority Voting and Fairness in Freeze-Out Mergers

Volume 59, Fall 2013

 

EDITORIAL

 THE CONSTITUTION AND THE INDIVIDUAL RIGHT TO POSSESS FIREARMS: A DIFFERENT TAKE

David W. Wise

Page 81

About: This op-ed essay critically evaluates the Second Amendment and the right to bear arms.

 

MANDATORY REPORTING OF ABUSE: A HISTORICAL PERSPECTIVE ON THE EVOLUTION OF STATES’ CURRENT MANDATORY REPORTING LAWS WITH A REVIEW OF THE LAWS IN THE COMMONWEALTH OF PENNSYLVANIA

Leonard G. Brown, III

Kevin Gallagher

Page 37

 

WINDSOR DISCUSSION

 

UNITED STATES v. WINDSOR AND THE FUTURE OF CIVIL UNIONS AND OTHER MARRIAGE ALTERNATIVES

John G. Culhane

Page 27

About: This essay is the fourth in a series exploring the implications of the recent landmark Supreme Court case, United States v. Windsor.  Specifically, this essay focuses on the future of civil unions.  This discussion was inspired by Meg Penrose’s article, UNBREAKABLE VOWS: SAME-SEX MARRIAGE AND THE FUNDAMENTAL RIGHT TO DIVORCE,  published in Volume 58:1.  The series is meant to serve as an open forum for scholars and practitioners to weigh in on one of the most significant Supreme Court decisions of the 21st century.

THE VIRTUE OF OBSCURITY

Colin Starger

Page 17

About: This essay is the third in a series exploring the implications of the recent landmark Supreme Court case, United States v. Windsor.  Specifically, this essay responds to the first essay in this series, SOMETHING TO (LEX LOCI) CELEBRATIONIS, by Megan Penrose.  This discussion was inspired by Meg Penrose’s article, UNBREAKABLE VOWS: SAME-SEX MARRIAGE AND THE FUNDAMENTAL RIGHT TO DIVORCE,  published in Volume 58:1.  The series is meant to serve as an open forum for scholars and practitioners to weigh in on one of the most significant Supreme Court decisions of the 21st century.

QUERYING EDITH WINDSOR, QUERYING EQUALITY

Jeffrey A. Redding

Page 9

About: This essay is the second in a series exploring the implications of the recent landmark Supreme Court case, United States v. Windsor.  Specifically, the essay intends to “sound some skepticism…about the majority opinion…and especially the vision of equality articulated by it.”  This discussion was inspired by Meg Penrose’s article, UNBREAKABLE VOWS: SAME-SEX MARRIAGE AND THE FUNDAMENTAL RIGHT TO DIVORCE,  published in Volume 58:1.  The series is meant to serve as an open forum for scholars and practitioners to weigh in on one of the most significant Supreme Court decisions of the 21st century.

SOMETHING TO (LEX LOCI) CELEBRATIONIS

Meg Penrose

Page 1

About: This essay is the first in a series exploring the implications of the recent landmark Supreme Court case, United States v. Windsor.  This discussion was inspired by Meg Penrose’s article, UNBREAKABLE VOWS: SAME-SEX MARRIAGE AND THE FUNDAMENTAL RIGHT TO DIVORCE,  published in Volume 58:1.  The series is meant to serve as an open forum for scholars and practitioners to weigh in on one of the most significant Supreme Court decisions of the 21st century.

Volume 58, Spring 2013

 

AMPLIFYING THE VOICES OF RETIREES: THE THIRD CIRCUIT’S BROAD INTERPRETATION OF BANKRUPTCY CODE SECTION 1114 IN IN RE VISTEON CORP.

Ashleigh K. Reibach

Page 120

Abstract:  This Brief examines the Third Circuit’s analysis of Chapter 11, Section 1114 of the Bankruptcy Code as it applies to motions to modify or terminate retiree benefits and serves as a guide to practitioners bringing or contesting such motions during Chapter 11 bankruptcy proceedings in the Third Circuit.

 

SHORTSIGHTED RESPONSE TO REVERSE PAYMENTS: HOW THE THIRD CIRCUIT MAY CAUSE CONSUMERS TO “PAY FOR THE DELAY” OF NEW DRUG DEVELOPMENT
Jude Steininger
Page 88 

Abstract: This case note examines the legislation of the Hatch-Waxman Act, its purpose, and the mechanics that led to the resulting reverse payment settlements.  Next it surveys the landscape of prior case law in the circuit courts, and focuses on the recent Third Circuit decision in In re K-Dur Antitrust Litigation that has rekindled the Hatch-Waxman debate.  Then the note analyzes the policy concerns advanced by opposing sides of the argument and the economic fallout likely to result.  Finally, it concludes with the assertion that the Supreme Court must intervene and establish the most beneficial standard of analysis for reverse payment settlements.

FUELING THE DEATH SPIRAL FOR WORKERS’ PENSIONS: THE BANKRUPTCY PROCESS AND MULTIEMPLOYER PENSION PLANS
Colleen Ray
Page 57

Abstract:  This comment examines how the Bankruptcy Code undermines the retirement security goals of ERISA and MPPAA. The article traces the development of multiemployer pension plans and the regulatory scheme.  In addition, it discusses how withdrawal liability functions and how employer withdrawals affect the other employers contributing to a multiemployer pension plan.  Next, it addresses the Bankruptcy Code’s treatment of withdrawal liability.  Finally, the comment analyzes the impact of discharging withdrawal liability by discussing In re Hostess Brands, Inc.

 

CHAMBER OF COMMERCE V. WHITING: A LAW STUDENT’S FREEWHEELING INQUIRY
Laura E. Ploeg
Page 26

Editor’s Note: The National Law Review chose an earlier version of this Note as one of the winners of its Fall 2012 Law Student Writing Contest.  The Author, Laura Ploeg (VLS ’13), is a two-time winner of that national competition.

Abstract: The Supreme Court, in Chamber of Commerce v. Whiting, should have found that federal law pre-empts the Arizona law, and that the Court’s holding will have serious consequences.  Whiting departs from the Court’s traditional application of implied pre-emption and general pre-emption principles, which are well established and have been repeatedly applied over many years.  The Court used implied pre-emption principles only a few years ago to strike down a state law with a similar relationship to federal law as the laws in Whiting.  The Whiting Court should have found the Arizona law pre-empted by federal law because it undermines several federal objectives.  Moreover, Whiting could create serious practical problems and has already begun to do so, as more state immigration laws are proposed and passed.  It is time to return an exclusively federal power to the federal government and tear down the façade of state laws purporting to regulate employment, housing, and the like, while essentially regulating immigration.  Dissatisfaction with federal law must be addressed at the federal level.

WHO OWNS A CLASS ACTION? 
Richard A. Booth
Page 21          

Abstract: This Essay considers the potential implications for securities class actions of Standard Fire Insurance Co. v. Knowles, which is presently before the Supreme Court.  Although the ultimate question in Knowles is whether the plaintiff class may be gerrymandered so as to avoid removal to federal court, a closely related question may arise in securities fraud class actions (which are filed in federal court in the first place).  In an action under SEC Rule 10b-5, the plaintiff typically seeks to recover for losses suffered as a result of buying a stock at a price inflated by management misrepresentations.  In such a case, the measure of damages is the difference between the price paid and the price at which the stock settles after corrective disclosure.  Although this remedy is well-established, it is fundamentally flawed in that it includes losses suffered by the corporation itself that impact all stock holders should be the subject of a derivative action. Courts should decline to certify most Rule 10b-5 actions as class actions because the plaintiff class invariably includes diversified portfolio investors—buyer-holders, who will lose more on the shares they hold because of the class action itself than they will gain on the shares they bought during the fraud period.  Knowles is an ideal opportunity for the Court to make it clear that a class action is a matter of judicial grace, and that as such, the courts have the power and the duty to assure that the device is used efficiently and equitably.

Volume 58, Spring 2012

 

BLINDED BY THE LIGHT: THE THIRD CIRCUIT CURTAILS THE INDEPENDENT RICCI DEFENSE IN NAACP v. NORTH HUDSON REGIONAL FIRE & RESCUE 
Douglas Behrens
Page 1

Abstract:   Employment discrimination on the basis of race, gender, and ethnicity has long plagued America’s workforce.  Congress passed Title VII to address this concern, which outlawed both intentional and pretextual discrimination—referred to as disparate treatment and disparate impact, respectively.  But what happens when two different racial groups bring competing disparate treatment and disparate impact claims seeking to compel an employer to take mutually exclusive actions—one threatening to sue if an employer takes a given action and the other threatening to sue if the employer does not take that same action?  Should one claim trump the other?  The Supreme Court in Ricci v. DeStefano, carved out a limited defense against a disparate treatment claim where there was a “strong basis in evidence” to believe that not taking the intentionally discriminatory action would result in a disparate impact claim.  In NAACP v. North Hudson Regional Fire & Rescue the Third Circuit used a novel temporal distinction to restrict the Ricci defense to its facts.  This Casebrief argues that the Third Circuit’s decision reinforced the court’s commitment to upholding Title VII’s purpose of eliminating discrimination by narrowly interpreting the available defenses to liability.  After all, two wrongs don’t make a right.