Control Transaction Governance: Collective Action and Asymmetric Information Problems and ex Post Policing
Why, when and how should control transactions be policed ex post and by a judiciary? This article is the first to 1) articulate the doctrinal prerequisites for effective ex post judicial policing of fiduciaries in control transactions, and 2) theoretically unify two seemingly distinct approaches to police control transactions: the ex post judicial policing in the United States and the ex ante policing by the Takeover Panel in the United Kingdom. Shareholder collective action and asymmetric information problems, and the extent of gatekeeping by fiduciaries together determine the mode of third-party interventions, such as those by judiciaries and the Takeover Panel, in control transactions. The Article’s analysis yields normative conclusions about how judiciaries in the United States, including Delaware’s, should fine-tune gatekeeping by corporate fiduciaries in control transactions. It predicts that multijurisdictional shareholder litigation that seeks anticipatory adjudication will produce negative consequences. Further, it gives policy makers outside of the United States the theoretical foundation for crafting third-party interventions in both types of control transactions, i.e., third-party acquisitions of control and controller freeze-outs, that are optimal for their own jurisdictions.
Standards of Proof in Japan and the United States
This article treats the striking divergence between Japanese and U.S. civil cases as to standards of proof. The civil-law Japan requires proof to a high probability similar to the criminal standard, while the common-law United States requires only that the burdened party prove the fact to be more likely than not. This divergence not only entails great practical consequences, but also suggests a basic difference in attitudes toward the process of trial. As to the historical causation of the difference in standards of proof, civil-law and common-law standards diverged in the late eighteenth century, probably because of one system's French Revolution and the other's distinctive procedure. The French Revolution, in the course of simplifying the civilian law of proof, hid the standards of proof from view. Meanwhile, the common-law jury served to induce judges to articulate standards of proof for the adversary system. As to the current motivation to adhere still to the old standards, the different standards conform to the subtle differences between the two systems' procedural objectives. The civil-law system seeks the legitimating benefits of the myth that its courts act only on true facts and not on mere probabilities. Common-law courts seek legitimacy elsewhere, perhaps in other myths, and thus are free to adopt preponderance of the evidence as the standard of proof that more efficiently and fairly captures the real truth of the case.
ASSESSING AGE AND GENDER DIFFERENCES IN PERCEIVED RISK AND FEAR OF CRIME
Much of the research on fear of crime indicates that women and older persons are highly afraid of crime. These findings, especially older persons' fear of crime, are widely communicated in the scientific and popular media. This study examines age and gender differences in perceived risk and fear of crime. The data are from telephone interviews of 320 randomly selected residents in a southeastern metropolitan area of the United States. The relationships of age and gender to fear of crime are compared using a National Crime Survey (NCS) measure of fear of crime and 11 alternative indicators of fear of specific offenses. Women reported signifcantly greater perceived risk and fear of crime than men regardless of how fear of crime was measured and older adults reported the greatest fear of crime when the NCS measure was used. but not when the alternative individual measures of fear of crime were used. A LISREL model with latent constructs for fear of personal crime and fear of property crime also indicates that older adults do not have higher levels of fear of crime. In short, the extent of fear in the everyday lives of most older persons has been overestimated in many previous studies because of measurement problems.