Business Combination Antitakeover Statutes: The Unintended Repudiation of the Internal Affairs Doctrine and Constitutional Constraints on Choice of Law

This article examines the constitutional validity of business combination antitakeover statutes. Delaware and other important corporate law jurisdictions enacted these statutes during the 1980s to inhibit hostile leveraged corporate takeovers and protect incumbent managements. These statutes work by prohibiting transactions which enable a hostile acquirer with a mere majority of target stock to sell target assets for cash and retain all the cash to service acquisition debt while paying off with securities the minority shareholders\u27 interest in the assets sold. This allows the takeover to be financed with the assets acquired. Analyzing the structural operation of these statutes in greater depth than either the courts or other commentators reveals previously unidentified bases to challenge their constitutional validity. Using the Delaware statute as an example, the article describes a series of transactions which either evade the prohibitions of these statutes or require the enacting jurisdiction to repudiate the internal affairs doctrine for their prohibitions to remain effective. This doctrine is the consensus choice of law rule for all U.S. jurisdictions and one virtually constitutionalized by CTS Corp. v. Dynamics Corp. of America. Existing assessments of the constitutionality of these statutes have focused on the fact that they explicitly apply only to target corporations incorporated in the state enacting the statute. In this respect they appear consistent with the internal affairs doctrine, which looks to the jurisdiction of incorporation to determine the controlling law for matters peculiar to corporations, such as voting rights and board duties. This appearance of consistency with the internal affairs doctrine is deceiving. The effective application of these statutes to the described transactions requires the repudiation of the internal affairs doctrine because these transactions involve no formal corporate action by the Delaware target. Instead, they use foreign majority owned subsidiaries of the target. Only if Delaware law controls the internal governance of these foreign subsidiaries can the business combination statute actually bar the transactions. Since the antitakeover prohibition applies even without injury or harm to the Delaware target, these statutes go far beyond well established prohibitions against cleverly structured self dealing or unfair transactions. Without injury to the Delaware target, Delaware\u27s antitakeover statute essentially mobilizes the private, economic power of the Delaware target to control the internal decisions of its foreign subsidiaries (whose very existence is owed to their own jurisdictions of incorporation and their governance requirements) to compel compliance with Delaware\u27s prohibitions. To extend its regulatory mandate extraterritorially in this manner without the jurisdictional basis of injury within its jurisdiction exceeds constitutional limits. If Delaware\u27s antitakeover statute purports to govern the internal affairs of a foreign subsidiary, then Delaware and the subsidiary\u27s state of incorporation both claim to govern the internal affairs of the same corporation. Moreover, upon completion of the bidder\u27s tender offer, the Delaware target becomes the bidder\u27s majority owned foreign subsidiary. This status provides the bidder\u27s state of incorporation with the same legislative basis as Delaware to extend its own legislative mandate over foreign subsidiaries, including the Delaware target. The bidder\u27s state could then enact an antidote statute to Delaware\u27s and supplant Delaware law for the internal affairs of the Delaware target. The potential for inconsistent or conflicting state regulation created by this situation exceeds what the Supreme Court found sufficient under the dormant commerce clause to invalidate an earlier generation of antitakeover statute in Edgar v. MITE. These statutes are vulnerable to constitutional challenge on other grounds as well. For a state to deviate from the internal affairs doctrine as its choice of law rule only when necessary to prevent a foreign corporation from escaping its regulatory jurisdiction may well violate the equal protection clause even under rational basis scrutiny. Lastly, the assertion of regulatory power over a foreign subsidiary, absent either contact with the regulating state or harmful effects within its jurisdictional territory, is an extraterritorial exercise of power fundamentally inconsistent with a federal system of co-equal sovereign states and in violation of due process

A Functional Approach to Copyright Policy

This essay results from a half-century spent observing the development and stagnation of a once vital music form, jazz. Curiosity spurred its evolution when a successor to John Coltrane failed to emerge within a few years of his early death. Over the ensuing decades, I became concerned that advancing technology and the 1976 Copyright Act had fundamentally undermined our cultural ecology. Unnoticed over the past century, technology has changed our experience of expressive culture, (the stories, images, and melodies that copyright most strongly protects), from live performance in social settings to solitary consumption of recorded media. Neurologically and physiologically this differentiates our experience from all earlier societies. Expressive culture evolved over millennia, and its presence in all human societies suggests it plays a vital social or psychological role in our struggle for survival. Long before the development of markets or mediums of exchange, expressive culture flourished everywhere, even in the most marginal subsistence societies. If expressive culture performs essential functions, then it is long past the time to consider what these functions might be. In examining expressive culture, the essay first considers its complexity, especially the variety of ways in which it is created and experienced. It attempts to answer the fundamental question. What is the purpose of expressive culture? It examines the functions that music, images, and narratives, might serve in human and social development and considers what the implications might be for copyright policy and possible reforms

Poisoning the Well: Law & Economics and Racial Inequality

Early Law and Economics advocates asserted that antidiscrimination laws were wasteful and unnecessary. This Article argues that that flawed conclusion resulted in a disregard, especially among African-American political and intellectual leaders, for economic analysis as a means of understanding racial phenomenon. The lack of economic analysis of race in market transactions is of great concern. Disparities in education, housing and employment have been intractable, Suggs argues, because racial disparities in business revenues dwarf those income disparities. To solve these disparities, however, requires not regulations but market incentives. Devising market interventions requires a sophisticated understanding of the way race affects market transactions; and until economic analysis of race is encouraged, little can be accomplished. To encourage efforts to understand the way racial phenomena operate in commercial markets, this Article first identifies the mistakes Law and Economics made early in the civil rights movement. After discussing racial disparities in income, wealth, and business activity the Article argues that the private power created by business ownership helps explain persistent inequality. The Article\u27s economic analysis of specific racial phenomenon suggests further analysis of racial phenomena in commercial markets is needed if there is to be greater African-American business activity-something from which we can all benefit

A Bright Lunar Impact Flash Linked to the Virginid Meteor Complex

Since early 2006, NASA's Marshall Space Flight Center (MSFC) has observed over 330 impact flashes on the Moon, produced by meteoroids striking the lunar surface. On 17 March 2013 at 03:50:54.312 UTC, the brightest flash of a 9-year routine observing campaign was observed by two 0.35 m telescopes at MSFC. The camera onboard the Lunar Reconnaissance Orbiter (LRO), a NASA spacecraft mapping the Moon from lunar orbit, discovered the fresh crater associated with this impact [1] approximately 3 km from the location predicted by a newly developed geolocation technique [2]. The meteoroid impactor responsible for this event may have been part of a stream of large particles encountered by the Earth/Moon associated with the Virginid Meteor Complex, as evidenced by a cluster of five fireballs seen in Earth's atmosphere on the same night by the NASA All Sky Fireball Network [3] and the Southern Ontario Meteor Network [4]. Crater size calculations based on assumptions derived from fireball measurements yielded an estimated crater diameter of 10-23 m rim-to-rim using the Holsapple [5] and Gault [6] models, a result consistent with the observed crater measured to be 18 m across. This is the first time a lunar impact flash has been associated with fireballs in Earth's atmosphere and an observed crater

Large Meteoroid Impact on the Moon on 17 March 2013

Since early 2006, NASA's Marshall Space Flight Center has observed over 300 impact flashes on the Moon, produced by meteoroids striking the lunar surface. On 17 March 2013 at 03:50:54.312 UTC, the brightest flash of an 8-year routine observing campaign was observed in two 0.35 m telescopes outfitted with Watec 902H2 Ultimate monochrome CCD cameras recording interleaved 30 fps video. Standard CCD photometric techniques, described in [1], were applied to the video after saturation correction, yielding a peak R magnitude of 3.0 +/- 0.4 in a 1/30 second video exposure. This corresponds to a luminous energy of 7.1 10(exp 6) J. Geographic Information System (GIS) tools were used to georeference the lunar impact imagery and yielded a crater location at 20.60 +/- 0.17deg N, 23.92 +/- 0.30deg W. The camera onboard the Lunar Reconnaissance Orbiter (LRO), a NASA spacecraft mapping the Moon from lunar orbit, discovered the fresh crater associated with this impact by comparing post-impact images from 28 July 2013 to pre-impact images on 12 Feb 2012. The images show fresh, bright ejecta around an 18 m diameter circular crater, with a 15 m inner diameter measured from the level of pre-existing terrain, at 20.7135deg N, 24.3302deg W. An asymmetrical ray pattern with both high and low reflectance ejecta zones extends 1-2 km beyond the crater, and a series of mostly low reflectance splotches can be seen within 30 km of the crater - likely due to secondary impacts [2]. The meteoroid impactor responsible for this event may have been part of a stream of large particles encountered by the Earth/Moon associated with the Virginid Meteor Complex, as evidenced by a cluster of 5 fireballs seen in Earth's atmosphere on the same night by the NASA All Sky Fireball Network [3] and the Southern Ontario Meteor Network [4]. Assuming a velocity-dependent luminous efficiency (ratio of luminous energy to kinetic energy) from [5] and an impact velocity of 25.6 km/s derived from fireball measurements, the impactor kinetic energy was 5.4 10(exp 9) J and the impactor mass was 16 kg. Assuming an impact angle of 56deg from horizontal (based on fireball orbit measurements), a regolith density of 1500 kg/m(exp 3), and impactor density between 1800 and 3000 kg/m(exp 3), the impact crater diameter was estimated to be 8-18 m at the pre-impact surface and 10-23 m rim-to-rim using the Holsapple [6] and Gault [7] models, a result consistent with the observed crater

Case Study: Large Meteoroid Impact on the Moon on 17 March 2013

No abstract availabl

Lunar Meteoroid Impact Observations and the Flux of Kilogram-sized Meteoroids

Lunar impact monitoring provides useful information about the flux of meteoroids in the tens of grams to kilograms size range. The large collecting area of the night side of the lunar disk, approximately 3.4x10(exp 6) sq km in our camera field-of-view, provides statistically significant counts of the meteoroids. Nearly 200 lunar impacts have been observed by our program in roughly 3.5 years. Photometric calibration of the flashes along with the luminous efficiency (determined using meteor showers1,2,3) and assumed velocities provide their sizes. The asymmetry in the flux on the evening and morning hemispheres of the Moon is compared with sporadic and shower sources to determine their most likely origin. The asymmetry between the two hemispheres seen in Figure 1 is due to the impact rate and not to observational bias. Comparison with other measurements of the large meteoroid fluxes is consistent with these measurements as shown in Figure 2. The flux of meteoroids in this size range has important implications for the near-Earth object population and for impact risk for lunar spacecraf

Graphene resonators : analysis and film transfer.

Abstract Not Provide

Analysis of Regolith Simulant Ejecta Distributions from Normal Incident Hypervelocity Impact

The National Aeronautics and Space Administration (NASA) has established the Constellation Program. The Constellation Program has defined one of its many goals as long-term lunar habitation. Critical to the design of a lunar habitat is an understanding of the lunar surface environment; of specific importance is the primary meteoroid and subsequent ejecta environment. The document, NASA SP-8013 'Meteoroid Environment Model Near Earth to Lunar Surface', was developed for the Apollo program in 1969 and contains the latest definition of the lunar ejecta environment. There is concern that NASA SP-8013 may over-estimate the lunar ejecta environment. NASA's Meteoroid Environment Office (MEO) has initiated several tasks to improve the accuracy of our understanding of the lunar surface ejecta environment. This paper reports the results of experiments on projectile impact into powdered pumice and unconsolidated JSC-1A Lunar Mare Regolith simulant targets. Projectiles were accelerated to velocities between 2.45 and 5.18 km/s at normal incidence using the Ames Vertical Gun Range (AVGR). The ejected particles were detected by thin aluminum foil targets strategically placed around the impact site and angular ejecta distributions were determined. Assumptions were made to support the analysis which include; assuming ejecta spherical symmetry resulting from normal impact and all ejecta particles were of mean target particle size. This analysis produces a hemispherical flux density distribution of ejecta with sufficient velocity to penetrate the aluminum foil detectors

Lunar Meteoroid Impact Observations and the Flux of Kilogram-sized Meteoroids

Lunar impact monitoring provides useful information about the flux of meteoroids in the hundreds of grams to kilograms size range. The large collecting area of the night side of the lunar disk, approximately 3.8 10(exp 6)sq km in our camera field-of-view, provides statistically significant counts of the meteoroids striking the lunar surface. Over 200 lunar impacts have been observed by our program in roughly 4 years. Photometric calibration of the flashes observed in the first 3 years along with the luminous efficiency determined using meteor showers and hypervelocity impact tests (Bellot Rubio et al. 2000; Ortiz et al. 2006; Moser et al. 2010; Swift et al. 2010) provide their impact kinetic energies. The asymmetry in the flux on the evening and morning hemispheres of the Moon is compared with sporadic and shower sources to determine their most likely origin. These measurements are consistent with other observations of large meteoroid fluxes