Here is a question I have been pondering for a while: Why do Delaware judges write so many law review articles? For example, I have sitting on my desk a stack of 14 articles by Norman Veasey former Chief Justice of the Delaware Supreme Court. On closer examination, most of these are speeches rather than articles. But still the question remains why do the judges write these pieces and why do the law reviews publish them?
The question arises as part of my research into the mechanisms for crafting corporate law in the U.S. Because Delaware judges play a central role in the process, it seems important to determine how they play their role, what motivates them, and to whom they are accountable.
Many scholars have noted the prolific nature of Delaware’s judiciary. Professors Marcel Kahan and Ed Rock counted 22 recent articles published by Delaware judges. Professor Lawrence Hamermesh has published a helpful chart as an appendix to his Columbia Law Review article, The Policy Foundations of Corporate Law. Yet nobody seems to have persuasively explained this phenomenon. Presumably judicial opinions provide judges with an adequate forum to explain and justify their decisions. Why then would judges feel compelled to supplement their legal opinions with further explanations, elaborations or justifications in the academic literature? More importantly are these extra-judicial exhortations helpful, harmless or insidious?
One purpose of these articles and speeches could be to provide guidance to corporate managers, attorneys and commentators as to the substance and meaning of Delaware corporate law. Thus judges are supplementing their law-making role, moving beyond ex-post assessment of corporate conduct to ex-ante guidance for practitioners and their clients. Such motivation can be viewed as positive, but also potentially problematic. The message may be lost in translation and, because judges cannot be bound by these extra-judicial comments, advice gleaned from their comments may be of dubious value.
Another view is that the constant commentary has a political purpose: to shore up the legitimacy of the state’s role in setting corporate policy. On this view, Delaware judges not only seek to explain their approach to corporate controversies, but promote their own superior abilities to act as arbiters in these disputes. Certainly, many articles by Delaware jurists fit this mold. If this is the motivation, we might want to take the message conveyed with a grain of salt. If part of the motivation for the articles and speeches is preserving the state’s (and the judges’) sphere of influence, then readers and scholars should consider such when evaluating the arguments the judges present.
Cross-posted at Conglomerate.