Harvard law prof Guhan Subramanian objects by email to my analysis of his article on the constitutionality of DGCL section 203 (the business combination statute):
Thanks for your thoughtful posting on our Section 203 article. I think your conclusion that "it is highly probable" that courts would uphold 203 and "I believe courts today would follow Amanda Acquisition rather than BNS" proves our point that the constitutionality of Section 203 is not well-settled law. Like Professor Ribstein (see http://busmovie.typepad.com/ideoblog/2009/11/is-delawares-antitakeover-statute-unconstitutional.html ) you speculate about what a future federal district court would do when presented with the evidence in our article. Rather than speculating, we simply argue in our article that the question is "in play."
On the question of how much it is "in play," the Delaware trilogy all occurred in the aftermath of CTS, so the three federal district judges who established the "meaningful opportunity for success" test were reading the same Supreme Court precedent as you note in your posting. You also state: "Plausible arguments can be made for both the meaningful opportunity for success standard and Amanda Acquisition. On balance, however, Amanda Acquisition seems preferable." This seems like a weak basis for declaring that the constitutionality of Section 203 is not potentially vulnerable.
His points are well-taken. So let me rephrase the case a bit: I agree that the article's data calls into question the empirical grounding of the Delaware trilogy. To that extent, I agree that the validity of the Delaware statute could be challenged. I also believe, however, that were the issue to be presented to the Third Circuit and/or the current Supreme Court that the majority in either case would prefer Amanda Acquisition to the meaningful opportunity for success standard and that such a majority would have no difficulty finding that the Delaware statute is constitutional under the Amanda Acquisition standard.