Justice Kennedy began his recently decided Peña-Rodriguez v. Colorado majority opinion by saying, “The jury is a central foundation of our justice system and our democracy.” The case grappled with the question of whether the long-standing federal rule that jury members cannot testify about any aspect of the deliberation process should give way in cases of racial bias. In a 5-3 decision, the United States Supreme Court found that it should, thereby creating an exception to the commonly referred to “no-impeachment rule.” This exception comes after many expressed concerns that allowing testimony about jury deliberations will undermine the criminal justice system. Those opposed to the exception fear that this exception will remove finality from jury verdicts, dissuade jurors from engaging in “heated discussions” during deliberations and lead to harassment of jurors. Notwithstanding these concerns, the Court ruled that ensuring the elimination of racial bias in jury deliberations was too important of a government objective to allow for the no-impeachment rule to remain undisturbed.

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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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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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