Table of Contents

Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt

Mary Ziegler, Florida State University - College of Law

Thomas Sanchez

Rafael Domingo, Emory University School of Law, University of Navarra

German Corporate Law in the 20th Century

Thilo Kuntz, University of Bremen - Faculty of Law

The Learned Hand Unformula for Short-Swing Liability

Andrew Chin, University of North Carolina (UNC) at Chapel Hill - School of Law


"Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt" Free Download

MARY ZIEGLER, Florida State University - College of Law

The Supreme Court’s recent decision in Whole Women’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

"Thomas Sanchez" Free Download
In John Witte, Jr. and Gary S. Hauk, Christianity and Family Law. An Introduction (Cambridge University Press, New York, Cambridge, 2017) (Forthcoming)

RAFAEL DOMINGO, Emory University School of Law, University of Navarra

Biographical and intellectual approach to Thomas Sanchez de ?vila, a luminary of the Spanish Golden Age most noted for his contributions to the moral theology and canon law of marriage. Master of moral casuistry, man of erudition, meticulous writer, pious priest, and prudent spiritual guide and confessor, Sánchez was the primary post-Tridentine Catholic authority on marriage-related issues.

"German Corporate Law in the 20th Century" Free Download
Harwell Wells (ed.), Research Handbook on the History of Corporate and Company Law, Edward Elgar, 2017 (Forthcoming)

THILO KUNTZ, University of Bremen - Faculty of Law

German corporate law in the 20th century was marked by a steady flow of reforms molding and shaping the corporation. Having started at the outset of the century with a corporate governance model revolving around shareholder power (at least according to the law in the books), the reform of 1937 established a shift to a board-centered structure, which prevails until today. Adhering to the structure set nearly 30 years earlier, another reform in 1965 mainly readjusted several details and sharpened the model’s features, with two exceptions: It contained a section on Konzernrecht, the law of corporate groups, and massively restricted the freedom of contract in corporate law by disallowing deviations from the Aktiengesetz in the corporate charter. Codetermination laws in 1951, 1952 and 1976 established board-level employee participation. Beyond these and other, smaller, reforms, German corporate law was part of broader political developments in Germany – the agony of the Weimar Republic, the rise and fall of the Third Reich, democratization, and Europeanization. This chapter aims at providing a longitudinal view of German corporate law. For the years 1945 to 1990, it is a history of corporate law in West Germany. Readers will, for the most part, not find an explanation of the specific rules governing board members’ duties, capital maintenance, or other details. Instead, they will find out about how the two-tier board structure evolved and why it is still in place today, why German corporate law abolished the shareholder-centric model of old, and which ideas lie behind the concept of board-level codetermination so foreign to many non-Germans.

"The Learned Hand Unformula for Short-Swing Liability" Free Download
Washington Law Review, Vol. 91, No. 4, 2016
UNC Legal Studies Research Paper

ANDREW CHIN, University of North Carolina (UNC) at Chapel Hill - School of Law

Section 16(b) of the Securities Exchange Act of 1934 allows for the recovery of short-swing profits realized by certain insiders from trading in a corporation’s stock within a period of less than six months. Three generations of corporate law students have been taught the “lowest-in, highest-out? formula that is intended to maximize the disgorgement of short-swing profits under section 16(b). Arnold Jacobs’s 1987 treatise presented two hypothetical examples where the formula fell short of the intended maximum, but courts, commentators, and practitioners have largely ignored these theoretical challenges to the formula’s validity.

This Article identifies Gratz v. Claughton as the first reported real-world example of the formula’s failure. Ironically, Gratz has been taught and cited for more than sixty years as a leading authority for the formula’s use, not least because of its distinguished author, Judge Learned Hand. This Article argues that Gratz has been misunderstood and that Hand wisely adjudicated this complex case without prescribing or endorsing the formula in any way. It also shows that the formula has no need of Gratz’s endorsement, as long as the formula is correctly interpreted as limited to simpler cases where it is mathematically valid. It formalizes and extends Jacobs’s results by showing that the formula may fall short of the maximum by up to fifty percent when misused in more complex cases, and has actually fallen short in another more recent case. Finally, it provides online tools to enable practitioners and judges to calculate short-swing liability correctly in all cases.


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