Law, Politics, and the Erosion of Legitimacy in the Delaware Courts

Abstract

One of the putative benefits of incorporation in Delaware is the expertise and knowledge of the Delaware courts. Professor Jonathan Macey says that Delaware “offers current and prospective charterers . . . a judiciary with particularized experience and expertise in corporate law.” Professor Faith Stevelman cites the “expertise” of Delaware’s judges as “fostering the state’s leading reputation in corporate law,” which “safeguard[s] the financial returns which flow to Delaware from its chartering business.” Professor Michael Klausner argues that Delaware’s dominance will likely be permanent in part because of the corporate expertise of Delaware’s judiciary. In fact, “[s]ome see the quality of the Delaware judiciary as the prime reason why corporations incorporate in Delaware.” The assertion of Delaware judicial superiority is so much a majority view that it in effect constitutes conventional wisdom within the corporate law academy.

Commentators have lauded not only the expertise of the Delaware judiciary but also its insulation from politics. Professors Marcel Kahan and Edward Rock have compared Delaware courts favorably to federal courts: “Indeed, since Delaware’s judiciary is less politicized and has greater claims to expertise in corporate law than the federal judiciary, its rulings may enjoy greater legitimacy than would corporate rulings of federal judges.”

This essay offers a contrary perspective on this assertion of Delaware courts’ expertise. While they may or may not be experts, I believe that their corporate law jurisprudence, especially over the last decade, has drifted toward incoherence. This might be for any of several reasons. But whatever the cause, the Delaware courts are putting themselves at risk of descending into legal and political illegitimacy. This essay will seek to explain why.

Part I of this essay will explain the importance of explanation in building and maintaining judicial legitimacy in the face of the so-called “counter-majoritarian difficulty” inherent in judicial decision-making. Part II offers examples of courts that sacrificed their own legitimacy because of incoherent, poorly reasoned judgments that strike readers as being based more on politics than law. Part III explains the implications of these insights for Delaware courts, namely that the Delaware judiciary needs to do a better job of justifying its decisions in traditional legal terms. Otherwise, the Delaware judiciary will increasingly be seen as merely instituting its political views by way of judicial rulings.