April 28, 2006
Where is Disney?
Posted by Gordon Smith

Earlier this week, I wrote, "I heard from a little birdie that the release of the Delaware Supreme Court's opinion in Disney was imminent...." We are now past the 90-day mark from the oral argument, and the opinion is still forthcoming. Should we read anything into this?

Larry Ribstein has suggested that the delay could be a sign that it's about to reverse. He could be right about reversal, but that's reading a lot into a relatively short delay. Nevertheless, I suspect that the delay may be important if it suggests that there is disagreement among the justices. As noted by former guest-blogger David Skeel, The Unanimity Norm in Delaware Corporate Law, 83 Va. L. Rev. 127 (1997), the Delaware Supreme Court has a strong unanimity norm:

Delaware's justices write separately in only three percent of the court's reported cases. The percentage is even lower when considering the court's whole docket. The minuscule number of separate opinions is particularly noteworthy given that the supreme court, unlike many state high courts, is the national arbiter of an important and often controversial area of law.

If I am right that Disney is dividing the justices, it reinforces what I have been saying for a long time: Disney is a tough case. Horrible facts for the Disney directors bumping up against legal rules that rightly show directors great deference in non-conflict transactions.

Does a split court suggest affirmance or reversal? It's not much to go on, but I keep remembering Omnicare, a recent split decision in which Justice Holland wrote a majority opinion, with then-Chief Justice Veasey and current-Chief Justice Steele dissenting.

I hope that a split court doesn't bring us another Omnicare.

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