October 05, 2006
The Publishing Propensity of the Delaware Judiciary
Posted by Usha Rodrigues

In the past 16 years, Delaware Chancery Court judges and Supreme Court justices have collectively written around 50 articles on corporate law topics (roughly defined), and 28 on non-corporate topics (shout out to my research assistant, D.K., for compiling these numbers). 35 of the corporate articles have been published since 2000. I haven't run any kind of study, but these preliminary numbers support my intuition that Delaware produces more legal scholarship than the average state.

What’s the deal? It seems to me that Delaware judges and justices have as an institution taken pains to create a consciously public and consciously scholarly persona. Does anyone have any insights as to why this might be the case? It seems to be right in line with Ed Rock’s Saints and Sinners: How Delaware Law Works, 44 UCLA L. Rev. 1009 (1997). Rock’s article is too good for me to do justice to in a blog post, but part of the gist is that Delaware works by shaming bad actors and praising good ones, as much as by creating law. His focus is on management buyout opinions, but he has a short section about “extrajudicial utterances,” as well. To the extent that Delaware corporate law is about telling us narratives about how good and bad corporate actors behave, these judicial utterances may be a useful secondary medium to convey the message. For me this abundant judicial scholarship also raises shades of Jonathan Macey and Geoffrey Miller’s interest-group theory of Delaware corporate law: to the extent that Delaware judges are out there saying things that may or may not offer hints as to the direction Delaware law is headed, it may make Delaware lawyers more valuable as interpreters of that law. Certainly it gives them more hours of reading to bill.

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