Standard Of Judicial Review Research Articles

The Effect of Delaware Doctrine on Freezeout Structure and Outcomes: Evidence on the Unified Approach

Historically, Delaware corporate law provided different standards of judicial review for buyouts by controlling shareholders (also known as “freezeouts”) based on what transactional form was used: deferential business judgment review for freezeouts executed as tender offers, and stringent “entire fairness” review for transactions structured as mergers. Subramanian (2005), Subramanian (2007), and Restrepo (2013) provide doctrinal and empirical evidence that transactional planners responded to these differences in standards of judicial review; that these differences in judicial scrutiny created differences in outcomes for the minority shareholders; and that differences in outcomes created a social welfare loss, not just a wealth transfer from minority shareholders to the controlling shareholder. Over the past decade, in a series of important decisions, Delaware law has migrated toward a “unified approach” to freezeouts regardless of transactional form. In this paper we present empirical evidence on all freezeouts of Delaware targets during this period of doctrinal evolution. In general, we find that deal outcomes have converged in the eight years since the Delaware Chancery Court’s decision in Cox Communications, but approximately half of merger freezeouts in the post-Cox era still did not follow the procedural template provided by the unified approach. Our findings suggest that: (1) transactional planners seem to respond to even probabilistic changes in the Delaware case law; (2) the social welfare loss identified in Subramanian (2005) seems to no longer be present; but (3) the Delaware Supreme Court may nevertheless wish to “finish the job” by endorsing the unified approach, in order to ensure adequate procedural protections to minority shareholders.

Do Different Standards of Judicial Review Affect the Gains of Minority Shareholders in Freeze-Out Transactions? A Re-Examination of Siliconix

Freeze-out transactions have been subject to different standards of judicial review in Delaware since 2001, when the chancery court, in In re Siliconix Inc. Shareholders Litigation, held that, unlike merger freeze-outs, tender offer freeze-outs were not subject to “entire fairness review”. This dichotomy, in turn, gave rise to a tension in the literature regarding the potential impact of Siliconix, as well as the treatment that freeze-outs should receive. While some defended the regime established by Siliconix, others argued for doctrinal convergence through a universal application of entire fairness, and still others proposed alternative variations of convergence based on how the negotiation process is conducted. The Delaware Chancery Court itself, in fact, subsequently made a partial step toward convergence by narrowing the scope of its precedent, as reflected in In re CNX Gas Corporation Shareholders Litigation. The empirical evidence on the effect of Siliconix (and, therefore, on the practical relevance of different standards of judicial review), however, is limited. In particular, in “Post-Siliconix freeze-outs: Theory and Evidence,” Guhan Subramanian found that minority shareholders obtain lower cumulative abnormal returns (CARs) in tender offer freeze-outs relative to merger freeze-outs, and, based on this finding, Subramanian advocates for doctrinal convergence. That article, however, does not formally examine whether Siliconix generated a structural change in relative CARs in both transactional forms and, therefore, whether the differences in outcomes are actually attributable to the disparity in standards of judicial review. The purpose of this work is, therefore, to fill this gap in the literature. To this end, this work uses a difference-in-differences approach, which compares changes over time (before and after Siliconix) between CARs in tender offers (the treatment group) and CARs in statutory mergers (the control group). As further discussed in the text, the results seem to suggest, in line with Subramanian’s intuition, that Siliconix actually had at least some negative effect on CARs in tender offers, since the estimator of difference-in-differences is consistently negative and generally significant. Based on the results, this work discusses specific policy implications, particularly in terms of regulatory convergence.

Mandatory Predispute Consumer Arbitration, Structural Bias, and Incentivizing Procedural Safeguards

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily as institutional self-help, as an opportunistic search for the funding and personnel that courts need to conduct fact-finding and decision-making in cases that the courts perceive as routine. By permitting corporations to impose class waivers on consumers, the Supreme Court is incentivizing the corporations to provide and fund a national private small claims court. If the Court is incentivizing in this way, however, this Article urges that it should demand more in return for class waiver. Specifically, it should demand evidence that the arbitration procedure is sufficiently attractive to consumers so that they will pursue their claims, as well as evidence that the procedure is sufficiently fair. One difficulty in making these demands, however, is that courts are obligated to use very limited grounds and a deferential standard of review for arbitral awards. Second, therefore, this Article urges courts to mine past experience in other legal contexts that involve privatized judicial functions, a deferential standard of judicial review, and the incentivizing of procedural safeguards. For guidance, this Article examines MetLife v. Glenn and the evolution of the deferential standards of review that courts apply to ERISA plan benefit denials by private claims administrators, particularly when such administrators operate in a conflicted decision-making context. In this context, the Supreme Court has managed to acknowledge the existence of structural bias and make it a relevant and important factor to be considered as part of deferential judicial review. Further, the Supreme Court has provided guidance to lower courts regarding the weight to be given to structural bias and has provided examples of the information required to assess such weight. Structural bias has been given the stature of tiebreaker in close cases. Finally and most important for the purposes of this Article, the Supreme Court has also incentivized the provision of structural and procedural safeguards (as well as discovery into the existence and operation of such safeguards) in order to reduce the potency of the structural incentives that encourage biased decision-making. In other words, the Supreme Court has incentivized the provision of safeguards that will enhance the likelihood of accurate decision-making -- all while maintaining a deferential standard of review. Glenn and its progeny thus offer procedural safeguards that the Supreme Court could -- and should -- import into its arbitration jurisprudence. These, at the very least, are the sorts of safeguards that the valuable bargaining chip of class waiver should be able to buy.

The Marlboro Man Versus Uncle Sam: The First Amendment Constitutionality of Graphic Cigarette Warning Labels

According to the Surgeon General, tobacco use is the leading preventable cause of death in the United States. Smoking-related diseases kill 443,000 Americans each year, more than are killed by HIV, illegal drug use, alcohol use, motor vehicle injuries, suicides, and murders combined. To address this public health threat, Congress enacted the Family Smoking Prevention and Tobacco Control Act (TCA) in 2009, which gave the federal government unprecedented power to regulate the tobacco industry. Among its provisions, the TCA requires the U.S. Food and Drug Administration to select images that depict smoking’s deleterious effects and compels tobacco companies to display the images, accompanied by a textual warning, on half of the front and rear panels of every cigarette package. This new graphic format — the first alteration of cigarette package warnings in over twenty-five years — represents a significant and aggressive change in the way that the government communicates the dangers of smoking to the public.To prevent the introduction of these new labels into the marketplace, the tobacco industry has filed suit alleging that the graphic warnings infringe on its First Amendment right to refrain from speaking. The two circuit courts that have considered this issue are divided sharply over the labels’ constitutionality and the appropriate framework for assessing them. This Note examines this legal fissure and argues that the warnings should be examined under the strict scrutiny standard of judicial review. Ultimately, this Note contends that the labels do not pass muster under this intense level of scrutiny and are thus unconstitutional compulsions of speech.

Contract & Conditional Zoning without Romance: A Public Choice Analysis

The growth and development of the United States after World War II left the country needing more flexibility in zoning law. Over the past few decades, zoning has undergone drastic changes to make the process more flexible. Two methods used to meet this new demand are contract and conditional zoning. Jurisdictions are split on whether to permit contract zoning, conditional zoning, both, or neither. This is an important question that a growing number of jurisdictions have recently encountered. This Note seeks to propose potential solutions to the conflict by analyzing it through public choice theory. By applying the principles of public choice theory, this Note finds that increased flexibility in zoning will likely have the undesired consequence of allowing legislators to easily appease interest groups, rather than bargain for the most efficient land use allocation. From this observation, this Note ultimately concludes that jurisdictions should either prohibit both contract and conditional zoning or, if economic efficiency concerns prove too great, permit both contract and conditional zoning but apply a strict standard of judicial review.

The Study on the Judicial Review Standards for Sex Based Discrimination

The Study on the Judicial Review Standards for Sex Based Discrimination

Business Roundtable: A New Level of Judicial Scrutiny and Its Implications in a Post-Dodd-Frank World

Questions regarding the appropriate bounds of judicial review have recently intensified in the wake of President Obama’s controversial comments concerning the Supreme Court’s pending ruling on the constitutionality of the Affordable Care Act. A similar debate, however, has been raging in the securities law community since July 2011, when the D.C. Circuit vacated Exchange Act Rule 14a-11, the so-called “proxy access rule,” in Business Roundtable v. SEC. Throughout this scathing opinion, the court condemns the SEC for failing to adequately consider the costs and benefits of Rule 14a-11 in promulgating the regulation, as commanded by the National Securities Markets Improvement Act of 1996 (“NSMIA”). Although the extent of cost-benefit analysis contemplated by the NSMIA—and thus how strictly the court should scrutinize the conclusions arrived at by the SEC through this analysis—is by the statute’s plain terms ambiguous, the court erroneously failed to examine the NSMIA’s legislative history, instead applying an unprecedented level of de novo-like scrutiny. This Note argues that the correct standard of judicial review envisioned by Congress in enacting the NSMIA, which such an examination would have revealed, is far more deferential to the agency’s determinations than the nearly insurmountable standard applied by the D.C. Circuit, rendering some of its holdings utterly incorrect. Business Roundtable scrutiny, this Note argues, has the potential to eliminate SEC rulemaking and undo Dodd-Frank’s sweeping financial reforms to the detriment of the national economy, absolutely demanding clarification by either Congress or the Supreme Court of the appropriate standard of judicial review by which the court is to evaluate SEC rules.

Substantive Rights in a Constitutional Technocracy

There are two deep puzzles in American constitutional law, particularly related to individual substantive rights, that have persisted across generations: First, why do courts apply a double standard of judicial review, giving strict scrutiny to noneconomic liberties but mere rational basis review to economic ones? Second, why does American constitutional law take the common law baseline as the free and natural state that needs to be protected? This Article proposes a technocratic vision of substantive rights to explain and justify both of those puzzles. The central idea is that modern substantive rights — the rights to speech, religion, association, reproduction, and parenting — protect a discrete set of markets that is characterized by unusually high degrees of economic and moral uncertainty. The Article identifies three sources of economic uncertainty (hedonic centrality, uncertain valence of value, and long/fat tailed distributions) and two sources of moral uncertainty (deep dissensus and pluralism/ambivalence) that are prevalent in all five protected markets. In the presence of those kinds of uncertainty, all theories for distributional success that are relevant in a representative democracy necessarily fail, and from a societal perspective, all distributions of goods within uncertain markets are, as far as we can tell, equally good and equally bad. As a result, regulators cannot hope to improve market distributions from the common law baseline and ought not to try. That said, the modern doctrinal formulation for strict scrutiny allows regulators to intervene when they can identify discrete market failures or moral consensuses within protected markets (when they can write a “narrowly tailored” intervention to serve a “compelling state interest”), further demonstrating that the harm rights seek to avoid is fruitless regulatory tinkering in the face of uncertain costs and benefits.

Affum v. United States: Expanding the Three-Way Circuit Split on Judicial Review of USDA’s Choice of Penalties for Food Stamp Trafficking

The Food Stamp Act allows retail stores and food wholesalers authorized by the Secretary of Agriculture to participate in the Food Stamp Program and accept food stamps as payment instead of cash for qualifying food products. If the Secretary finds that a food stamp merchant — or their employee — has trafficked in food stamps, the Secretary may permanently disqualify the merchant from accepting food stamps. But the Secretary also has “discretion” to impose a civil monetary penalty (CMP) of up to $54,000 in lieu of permanent disqualification if the Secretary finds “significant evidence” that the merchant had effective policies in place to prevent food stamp violations. The Act establishes a statutory right to judicial review of the Secretary’s decision to impose disqualification or a civil penalty, and according to the Act, that review is by “trial de novo . . . in which the court . . . determine[s] the validity of the questioned administrative action in issue . . . .” In Affum v. United States, a food stamp merchant whose sole part-time employee exchanged food stamps for $30 cash was found by the Secretary to have trafficked in food stamps. Affum challenged the Secretary’s decision to permanently disqualify her rather than impose a fine, but the district court denied her request for injunctive relief and did not reach the merits of her claim after it held, in part, that she did not have standing to challenge the Secretary’s decision. Appealing that decision, Affum did not dispute whether her employee engaged in food stamp trafficking. Rather, she asserted, inter alia, that not only was the Secretary’s decision of whether to punish a merchant reviewable de novo, but the Secretary’s choice of punishments is also reviewable de novo. The D.C. Circuit reversed the district court’s finding that Affum did not have standing and remanded the case for de novo review of the administrative proceeding. To guide the district court on which was the proper standard of review to apply, the circuit court found that “nothing in the Act suggest[s] that trials de novo relating to ‘administrative action[s] in issue’ are limited solely to review of determinations that a trafficking action occurred.” Nevertheless, it held that because Congress amended the Act in 1988 to give the Secretary “discretion” in choosing the appropriate penalty for trafficking, it “meant to impose different standards of review for a judicial action challenging the agency’s finding of a violation as opposed to a judicial action challenging the Secretary’s choice of penalty.” Thus, the D.C. Circuit held that though plaintiffs are entitled to de novo review of whether a violation occurred, the Secretary’s choice of penalties under 7 U.S.C. § 2021(b)(3)(B) is reviewable under an arbitrary and capricious standard. In reaching this conclusion, the D.C. Circuit joined in the current three-way circuit split over which standard of judicial review should apply to the Secretary of Agriculture’s choice of penalties for food stamp merchants. The D.C. Circuit’s position — that the penalty is reviewable under an arbitrary and capricious standard — is consistent with that held by the Fourth and Ninth Circuits. The Eighth Circuit, however, holds that the Secretary’s choice of penalties is reviewable de novo, and the Sixth Circuit holds that the Secretary’s choice is not reviewable. This comment examines the three-way circuit split, argues that the arbitrary and capricious standard is correct, and recommends that either the Supreme Court should adopt the majority rule or Congress should amend § 2023(a) to expressly provide that the Secretary’s choice of penalty is reviewable under the Administrative Procedure Act’s arbitrary and capricious standard of review. Section I reviews the Food Stamp Act and why Congress amended it to grant the Secretary discretion to impose a civil monetary penalty in lieu of permanent disqualification for trafficking offenses. Section II briefly reviews standards of review of administrative agency actions. Section III analyzes the circuit split at issue by examining cases from the Fourth, Sixth, Eighth, Ninth, and D.C. Circuits. Finally, Section IV suggests how the Supreme Court or Congress could mend the three-way circuit split over judicial review of the Secretary’s choice of penalties under § 2021.

Judicial Appeals for Hearing/Review Officer Decisions under IDEA: An Empirical Analysis

This study analyzed the 65 hearing officer decisions in Illinois between 1982 and 2010 that were subject to a court appeal available in the Westlaw or Individuals With Disabilities Education Law Report (IDELR) databases. These 65 cases yielded 86 issue rulings. Based on refined measures of outcomes and deference, or standard of judicial review, for issue rulings as the unit of analysis, the principal findings were that (a) outcomes were skewed in favor of districts at both the hearing/review officer and court levels; (b) the outcome upon judicial appeal was the same or largely unchanged for the vast majority of the issue rulings; and (c) the standard of judicial review did not appear to be a major factor in relation to the final court outcome.

Administrative Action and the Doctrine of Proportionality in India

The scope of judicial review of administrative action has been the central theme of discussion in administrative law. Initially common law countries including India adopted the doctrine of wednesbury reasonableness to review administrative action. But subsequently under influence of civil law systems and Strasburg jurisprudence the doctrine of proportionality is being gradually accepted as the standard of judicial review by the common law countries. There are two models of proportionality namely the British Model or the state limiting conception of proportionality and the European model or the optimizing concept of proportionality. Of the two the European model is more objective and hence preferred. The Indian Supreme Court accepted the doctrine of proportionality in the year 2000. Yet even today the Indian legal system has not come to terms with the doctrine. There is hardly any case where the doctrine has been practically applied. The need of the hour is to increasingly apply the doctrine of proportionality to review administrative action in India.

Contracting Around RUAA: Default Rules, Mandatory Rules, and Judicial Review of Arbitral Awards

By specifying that its provisions generally are default rules and listing particular exceptions, the Revised Uniform Arbitration Act (“RUAA”) provides much needed certainty and avoids unnecessary litigation, at least compared to the Federal Arbitration Act, which does not always identify which of its provisions are default rules. In one important respect, however, RUAA jettisons that valuable certainty. The RUAA drafters left open (or at least sought to leave open) the question whether parties can contract to expand the grounds for judicial review of arbitration awards beyond those set out in the statute. In other words, the drafters purported not to resolve the extent to which judicial review standards are default rules under RUAA. This article argues that parties may be able to obtain court review of arbitral errors of law under RUAA by defining legal errors as beyond the scope of the arbitrators’ authority. A court then can vacate an award on the basis of legal error under the statutory ground that the arbitrators exceeded their authority. If so, then the RUAA standards for judicial review are default rules (at least in part), and parties can contract around those standards even though RUAA does not clearly so provide.

Acquired Expertise of Administrative Tribunals and the Standard of Judicial Review: The Case of Grievance Arbitrators and Human Rights Law

Focusing on arbitral decisions on human rights claims arising in the employment context, this paper looks at the nature of the expertise of administrative tribunals and its role in determining the standard of judicial review. The author notes that arbitrators are considered to have expertise in labour relations, and that this has been a key factor in the high level of deference generally shown by courts to their decisions. However, despite the expansion of arbitral jurisdiction over human rights matters in unionized workplaces, the courts, applying a “correctness” standard of review, have refused to grant deference to arbitrators with respect to their interpretation and application of human rights legislation, in part on the basis that they are not expert in the area. The author takes issue with this view, contending that arbitrators have in fact acquired significant expertise in interpreting human rights statutes in the context of the employment relationship, and that recognition of such expertise should lead to a reappraisal of the level of curial deference. In this regard, he argues, it would be open to the courts to deem arbitrators to possess the requisite expertise in human rights, thereby justifying a more deferential “reasonableness” standard of review.

Standards of judicial review of administrative bodies: The consideration of citizen participation

Abstract: In Canada there is little legitimate or legal room or consistency with the judicial role in judicial review of or appeal from administrative actions or decisions for courts to take into account the degree or quality of citizen participation to support greater deference for administrative decision or action. At most, this consideration may be considered a sub‐factor, marginal and never determinative. In particular, citizen participation can be a sub‐factor when the public perception is either explicitly central to the legislation in issue, or is assumed or inferred as such by the court. Nevertheless, assuming such citizen participation in bureaucracy is positive, there can be some significant indirect coincidental promotion of it in reality as a result of and through judicial deference to administrative decisions, which occurs concomitantly in standard‐of‐review analysis.

The Principle of Proportionality in the Viking and Laval Cases: An Appropriate Standard of Judicial Review?

The article analyses the application of the proportionality principle in the Viking and Laval judgments. It argues that one of the main reasons why the outcome of these two eminent cases became so controversial was because of the way in which the Court applied the proportionality principle. The paper will first give an overview about the application and elements of the proportionality test in EC internal market law; it will then raise two related issues, namely to what extent the so-called ‘Prinzip der praktischen Konkordanz’ is relevant in the existing case law and whether there is a need for a differentiated approach under the proportionality test in horizontal situations. The article urges the ECJ to develop a different standard of judicial review for trade union action. The paper will draw on some selective national examples to show that where a proportionality principle is applied in industrial action cases, both the elements and the substance of the test are different from those applied by the Court of Justice in these two cases. The last part of the paper will highlight the differences between the proportionality review in the two cases, including the importance of the reference to the minimum harmonisation clause of the Posted Workers Directive in the Laval judgement. Finally, the article invites the reader to pay attention to the broader constitutional implications of judgement in the field of social policy, i.e. to what extent the cases generated coordination between the Member States at the intergovernmental level.

Judicial Review in Hungarian Competition Law -Tetra Laval Á La Hongroise

This paper assesses the degree of judicial scrutiny performed by administrative courts in Hungary when reviewing decisions by the Hungarian Competition Authority (Gazdasagi Versenyhivatal, ‘GVH’) in the light of the landmark ruling handed down by the European Court of Justice in Commission vs. Tetra Laval. The paper is divided into four parts. The first part provides an outline of the Hungarian Competition Act. The second part offers a brief overview of the general principles of judicial review of the Hungarian administrative authorities’ decisions. The third part examines whether the Tetra Laval ruling has influenced the judicial scrutiny applied by Hungarian courts. The fourth part concludes that although at first sight the Hungarian courts seem to draw little or no inspiration at all from the Community Courts’ case-law, a deeper analysis suggests that - irrespective of the developments in European jurisprudence - the Hungarian courts have in essence developed a finely tuned and restrained judicial review of the GVH decisions.The conclusions of this analysis point further than the Hungarian case and provides thoughts for the general discussion on the standard of judicial review of administrative authorities’ decisions.

Judicial Review in French Competition Law and Economic Regulation - A Post-Commission v. Tetra Laval Assessment

The present article seeks to assess the degree of judicial scrutiny performed by French courts when reviewing National Competition Authorities (NCAs) and National Regulatory Authorities (NRAs) decisions in the aftermath of the seminal ruling handed down by the European Court of Justice (the ECJ) in Commission vs. Tetra Laval. In this judgment, the ECJ considered that the European Community (EC) courts should refrain from engaging in a de novo assessment of the decisions adopted by the European Commission (the Commission), when enforcing EC competition rules and, arguably, in other fields such as sector-specific regulation. In light of the general duty of Member States to fully ensure the effet utile of EC legislation, the question arises whether the Tetra Laval standard of judicial review promoted by the ECJ has been endorsed by national courts, when reviewing decisions of NCAs and NRAs. Indeed, the equally ranking principle of procedural autonomy implies that national legal orders should remain free to decide the degree of judicial scrutiny applicable to decisions from national regulators. The present article examines whether the French courts have drawn inspiration from the ECJ's moderate standard of judicial review in Commission vs. Tetra Laval, or if, on the contrary, a stricter standard prevails under French law. To that end, it is divided into four sections, which follow a chronological approach. The first section provides an overview of the specificities of the French judicial review system in the pre-Tetra Laval world (I). As in the French judicial system many courts have jurisdiction over regulators' decisions, it seeks to clarify who judges the regulators, the judicial remedies available to regulated entities and the degree of judicial scrutiny traditionally exercised over regulators' decisions in the pre-Tetra Laval period. The second section offers a brief analysis of Commission vs. Tetra Laval where the Court introduced a new standard of judicial review different from that found in previous case-law. It argues that the ECJ's judgment marks a striking piece of judicial deference towards regulators' decisions (II). The third section determines whether the Tetra Laval judgment has impacted on the degree of judicial scrutiny applied in practice by French courts when reviewing regulators' decisions in the areas of competition law (including merger control and antitrust) and sector-specific regulation (III). We find that French courts have not followed the Tetra Laval ruling in the area of competition law, and, to the contrary, that they scrutinize intensively the procedural aspects but also the merits of the NCAs' decisions. By contrast, French courts display a much higher degree of deference with respect to NRAs' decisions in the field of sector-specific regulation. The fourth section offers a brief conclusion (IV).

Public Corporation as Private Constitution

The large publicly-traded corporation in the United States derives its essential structure and metaphoric language from the republican form of government laid out in the US Constitution. Public shareholders elect a decision-making body that formulates and supervises an executive bureaucracy, subject to review by a judiciary (typically, in Delaware) that balances shareholder interests and management prerogatives. The analogy to the republican government structure found in the federal Constitution and replicated in all 50 states is unavoidable. Both specialized hierarchies create a principal-agent model of separated powers that contains similar sets of voting rights, nearly identical standards of judicial review, and generally parallel recognition of exit opportunities. Thus, an understanding of US corporate governance inevitably compels an understanding and appreciation of the structures of US political governance. Metaphorically, the public corporation is private constitution.

A Comparative Legal Study on Judicial Review Standards of Canada, U.S. and Korea

A Comparative Legal Study on Judicial Review Standards of Canada, U.S. and Korea

Post‐Siliconix Freeze‐Outs: Theory and Evidence

At approximately the same time that the Sarbanes‐Oxley Act increased the costs associated with being a public company, important Delaware case law created a difference in the standard of judicial review for the two basic methods of freezing out minority shareholders. While a freeze‐out executed as a statutory merger is subject to stringent “entire‐fairness” review, the Delaware Chancery Court held in In re Siliconix Shareholders Litigation that a freeze‐out executed as a tender offer is not. This paper presents the first systematic empirical evidence on post‐Siliconix freeze‐outs. Using a new database of all Delaware freeze‐outs executed in the 4 years after Siliconix was decided, I find that minority shareholders achieve significantly lower abnormal returns, on average, in tender‐offer freeze‐outs relative to merger freeze‐outs. I discuss the doctrinal and policy implications of these findings in a companion paper.