An Eras Tour of Delaware Law

In September 2024, the Journal of Corporation Law hosted a symposium in honor of the fiftieth anniversary of its founding. That happy event provided an opportunity for a keynote speech that looked back across the history of Delaware corporate law. A forthcoming article—An Eras Tour of Delaware Law—builds on those remarks.

Since Delaware became a state in 1776, there have been nine eras of Delaware corporate law: the Antecedent Era, the Charter-Mongering Era, the Quiet Era, the Responding Era, the Reformation Era, the Moderating Era, the Generative Era, the Implementing Era, and the Current Era. Each era presented the Delaware courts with different challenges. Not surprisingly, those different challenges produced different responses.

The Eras article examines those eras and the judicial responses. The tour demonstrates that Delaware has offered a principles-based system in which judges shaped corporate law by ruling on the facts of a particular case within the context of a prevailing legal environment. As Chief Justice Leo E. Strine, Jr. observed over two decades ago, Delaware’s corporation law has been “highly dynamic,” deploying principles of equity and case-specific rulings to avoid doctrinal lock-in and ossification.

This Eras article addresses each era, giving primacy to the five decades of the Journal’s existence. Over that period, the Delaware courts have confronted too many issues to cover. The Eras article prioritizes three high-profile areas: controller transactions, third-party mergers and acquisitions, and derivative actions. For each era, the article considers the rules the courts established, the results they reached, and the rhetoric they deployed.

The article reaches an unsurprising conclusion: The defining hallmark of Delaware corporate law has been its independent judiciary, adhering to the rule of law, and reaching case-specific decisions as challenges emerge and conditions change. The judge-led dynamism of Delaware corporate law has been the key to its success.

The article will be published in the Journal of Corporation Law. It is posted on SSRN and can be found here.