COMMENT: The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional

COMMENT: The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional

Stephen Scaife *

State legislatures can indirectly, but effectively, restrict constitutional rights by enacting statutes that create a private cause of action. This is possible when the cause of action creates potential damages that are so severe as to de facto compel people and entities from engaging in certain conduct. For example, if a statute allows private citizens to sue a person when that person engages in X, then individuals and entities may cease to engage in X if the possible liability arising from engaging in X is too significant. When the United States Constitution protects the conduct that the statute de facto, though indirectly, compels people to forgo, a serious issue arises.

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* J.D. Candidate, 2018, University of Richmond School of Law; B.A., 2015, Presbyterian College. I would like to thank my wife, Rachel Scaife, for her constant love and support. I also want to thank my parents, Tom and Kyung Scaife, for their unending encouragement and love. As well, I am grateful to Professor Jack Preis, who provided invaluable feedback and counsel during this writing process. Finally, I want to thank the University of Richmond Law Review staff for their diligent efforts in preparing this paper for publication.

COMMENT: The Imperfect But Necessary Lawsuit: Why Suing State Judges Is Necessary To Ensure That Statutes Creating A Private Cause Of Action Are Constitutional

COMMENT: In Re Trulia: Revisited and Revitalized

Emma Weiss *

After an escalation in deal litigation that culminated with challenges to 95% of $100,000,000 deals, merger objection litigation that ends in disclosure-only settlements has become a topic of great concern. These cases are concerning because it seems implausible that 95% of all mergers are executed carelessly. The problematic cases all follow a similar pattern. When a merger is announced, multiple shareholder plaintiffs challenge the transaction in multiple jurisdictions. Plaintiffs and corporate defendants then quickly agree to a disclosure-only settlement, wherein the plaintiffs receive trivial supplemental disclosures about the transaction. In return, defendants receive a broad release from liability for future claims. The parties then seek the court’s approval of the settlement, and upon receiving approval, the plaintiffs’ attorney is rewarded with significant attorney’s fees. This cycle is so common it has been dubbed a “deal tax” or “transaction tax.”

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* J.D. Candidate, 2018, University of Richmond School of Law; B.A., 2015, Virginia Polytechnic Institute and State University. I would like to thank the University of Richmond Law Review staff and editors for their assistance in making this piece publishable. I would also like to thank Professor Jessica Erickson for her invaluable advice and guidance throughout the writing process.

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