Emory Law Journal

Volume 68Issue 2

The Flawed Corporate Finance of Dell and DFC Global

Charles Korsmo & Minor Myers | 68 Emory L.J. 221 (2018)

In a pair of momentous decisions involving stockholder appraisal rights, the Delaware Supreme Court made four critical mistakes in analyzing the financial ideas and concepts at play. First, the Court ignored the differences between how public markets price risk and how private parties—particularly financial sponsors—price risk. Second, the Court took the well-supported evidence of information efficiency in securities markets as necessarily implying a high degree of value efficiency. It then compounded this error by attributing this value efficiency not simply to the securities market but also to the deal market. Third, the Court succumbed to a flawed analogy between the fiduciary duty and appraisal contexts, implying that conditions of pricing efficiency are met whenever directors satisfy their minimum fiduciary obligations. Fourth, the Court treated company valuation as a mechanical calculation, downplaying the role of human judgment. This Article analyzes these errors and considers some implications for the future.

Read More »

Agency Legislative History

Jarrod Shobe | 68 Emory L.J. 283 (2018)

This Article examines agency–Congress legislative communications, which it terms “agency legislative history,” and argues that they have important, but previously underexplored, implications for the theories and practice of statutory interpretation. Agency legislative history also sheds new light on the ongoing debate over Chevron’s domain. Agency legislative history reinforces arguments in favor of deference to agencies by raising questions about courts’ institutional capacity to effectively uncover congressional deals, and by providing new reasons to believe that agencies may be better statutory interpreters than courts. At the same time, for the many judges skeptical of broad deference but unsure how to limit it, agency legislative history can allow for more narrowly tailored and empirically supported deference decisions that reflect the variety of ways legislation is made.

Read More »