Delaware's balancing act

John Armour*, Bernard Black, Brian Cheffins

*Corresponding author for this work

    Research output: Contribution to journalArticlepeer-review

    23 Scopus citations

    Abstract

    Delaware's courts and well-developed case law are widely seen as integral elements of Delaware's success in attracting incorporations. However, as we show using empirical evidence involving reported judicial decisions and filed cases concerning large mergers and acquisitions, leveraged buyouts, and options backdating, Delaware's popularity as a venue for corporate litigation is under threat. Today, a majority of shareholder suits involving Delaware companies are being brought and decided elsewhere. We examine in this Article the implications of this "out-of-Delaware" trend, emphasizing a difficult balancing act that Delaware faces. If Delaware accommodates litigation too readily, companies, fearful of lawsuits, may incorporate elsewhere. But if plaintiffs' attorneys find the Delaware courts unwelcoming, they can often file cases in other courts. Delaware could risk losing its status as the de facto national corporate law court, as well as the case flow that lets it provide the rich body of precedent that is part of Delaware's overall corporate law "brand." We assess how the Delaware courts and legislature, and Delaware companies, might respond to this threat to Delaware's pre-eminence as the leading forum for corporate cases, as well as incorporations.

    Original languageEnglish (US)
    Pages (from-to)1345-1405
    Number of pages61
    JournalIndiana Law Journal
    Volume87
    Issue number4
    StatePublished - Sep 1 2012

    ASJC Scopus subject areas

    • Law

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