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Washington and Lee Law Review - Vol. 71

Response

by Mohsen Manesh

Nearly thirty years ago, in Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., the Delaware Supreme Court famously dictated that in certain transactions involving a “sale or change in control,” the fiduciary obligation of a corporation’s board of directors is simply to “get[] the best price for the stockholders.” Applying a novel remedial perspective to this iconic doctrine, in The Dwindling of Revlon, Professor Lyman Johnson and Robert Ricca argue that Revlon is today of diminishing significance. In the three decades since, the coauthors observe, corporate law has evolved around Revlon, dramatically limiting the remedial clout of the doctrine. In this Essay, I show how two recent Delaware Chancery Court decisions—Chen v. Howard-Andersen and In re Rural Metro—underscore the expansive reach of Revlon and, therefore, the limits of Johnson and Ricca’s thesis. Instead, I suggest the dwindling of Revlon, if it is indeed dwindling, may be best observed from what is happening outside the pressed edges of corporate law, where other competing bodies of business law have emerged rejecting Revlon’s fiduciary mandate.

Roundtable

by Sarah Jane Hughes

This Essay previews issues raised by the general subject of regulating virtual currencies and the specific efforts of New York State’s Department of Financial Services’ proposed Virtual Currency Regulatory Framework (the BitLicense) in particular. It focuses on five topics in the proposal and their interplay with the current regulation of “money services” and “money transmission” in other states, using the Commonwealth of Virginia and the State of Washington approaches on a few common topics for comparison purposes. It also asks whether regulation of virtual currencies is likely to cause more widespread adoption of virtual currencies or to frustrate the proponents and current users and so reduce the use of virtual currencies.

Roundtable

by Joshua A.T. Fairfield

Trustless public ledgers (TPLs)—the technology underneath Bitcoin—do more than just create online money. The technology permits people to directly exchange money for what they want, with no intermediaries, such as credit card companies. Contract law is the law of bargained-for exchange, so a technology that enables direct exchange online will change the reality of online contracting. The current problem with consumer contracting online is that courts and companies have collaborated to create an online system in which consumers cannot bargain. Under the current regime, consumers have no choice but to click the “I Accept” button. Online, contract law is not the law of bargained-for exchange; it has become the law of company-dictated exchange. Smart contracts—automated computer programs able to execute trades through TPLs—may offer a solution. This brief Essay explores the possibilities of smart contracts and their potential to correct the badly off-course law of online contract.

Roundtable

by Shawn Bayern

Most legal analysis of Bitcoin has addressed public-law and regulatory matters, such as taxation, securities regulation, and money laundering. This essay considers some questions that Bitcoin raises from a private-law perspective, and it aims to show that technological innovation may highlight problems with conceptualistic, classical rules of private law.

Roundtable

by Edward Castronova

A “digital value transfer system” (DVT) is a computer program that moves purchasing power from one person to another by exchanging different forms of virtual currency. In this Essay, I will give examples of DVTs and explain how they work. Then I will use the economic theory of budgets to explain how DVTs increase the liquidity and reach of all forms of virtual money. In effect, DVTs make all forms of currency, from dollars to frequent-flyer miles, essentially equivalent in terms of purchasing power. I conclude with a brief discussion of the possible implications of DVTs for the economy and for government policy.

Development

by Lawrence L. Muir, Jr.

In May 2014, the Federal Bureau of Investigation indicted five Chinese nationals for cybercrimes against American companies. That indictment was an impotent response. The United States has no extradition treaty with China, and the defendants will in all likelihood never be tried in the United States. The inefficacy of the indictments highlights a larger problem: State-controlled cyberunits can act with impunity under the present mix of international and domestic law. No laws govern conduct between nation-states, and, thus, neither victims nor nation‑states have recourse against violators.

This Article suggests that the United States should pursue national interest diplomacy to triangulate Russia and China by negotiating a trilateral cyberlaw treaty. The Article first demonstrates why the United States has failed in bilateral negotiations with these two nations in the past. It proposes that the United States should shift strategies by beginning to pursue national interest diplomacy rather than multilateral diplomacy. This strategy would encourage rapprochement with Russia first, thereby putting pressure on China to join the treaty or else be isolated. Finally, the Article lays out a workable framework on which policymakers can construct the diplomatic means to secure restitution for the victims of cyber-attacks.

Development

by Horace

In Commonwealth v. Morris, the Supreme Court of Virginia properly decided that the writs of coram vobis and audita querela may not be used to modify a final criminal conviction order more than twenty-one days after its entry. The court decided the inapplicability of coram vobis under Virginia Code § 8.01-677 and its own precedent. It decided the inapplicability of audita querela under the English common law, citing cases from 1670, 1701, and 1792. In the course of the opinion it conflated Virginia Code §§ 1-200 and 1-201 and held in dictum that Virginia’s adoption of the common law of England “ends in 1607 . . . . From that time forward, the common law we recognize is that which has developed in Virginia.” This was dictum because the opinion holds the common law of England on the use of the writ of audita querela was the same before and after 1607. Your author submits this dictum is erroneous considering the years of decision of the English cases cited, the plain meaning of the two applicable statutes, and the court’s own precedent.

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