“Mediation-Only” Filings in the Delaware Court of Chancery: Can New Value Be Added by One of America’s Business Courts?

The following Essay by Vice Chancellor Leo Strine of the Delaware Court of Chancery advocates the enactment of legislation that authorizes the Court of Chancery to handle mediation-only cases. Such cases would be filed solely to invoke the aid of a Chancellor to mediate a business dispute between parties. By advocating this innovative dispute resolution option, the Essay embraces a new dimension of the American judicial role that allows American businesses to more efficiently solve complicated business controversies. The mediation-only device was conceived in 2001 by members of the Delaware judiciary, including Vice Chancellor Strine, in consultation with members of the Delaware Bar and the Administration of Delaware Governor Ruth Ann Minner. After this Essay was widely circulated to certain constituencies and presented at a symposium sponsored by the Duke Law Journal and the Institute for Law and Economic Policy (ILEP), legislation that contained the mediation-only device was drafted. In June 2003, with the full support of the Court of Chancery, Delaware Governor Minner secured passage of the legislation from Delaware\u27s General Assembly. The mediation-only device was enacted into law as 346 and 347 of Title 10 of the Delaware Code. To the Editors\u27 knowledge, this legislation is the first of its kind adopted in the United States

“Mediation-Only” Filings in the Delaware Court of Chancery: Can New Value Be Added by One of America’s Business Courts?

The following Essay by Vice Chancellor Leo Strine of the Delaware Court of Chancery advocates the enactment of legislation that authorizes the Court of Chancery to handle mediation-only cases. Such cases would be filed solely to invoke the aid of a Chancellor to mediate a business dispute between parties. By advocating this innovative dispute resolution option, the Essay embraces a new dimension of the American judicial role that allows American businesses to more efficiently solve complicated business controversies. The mediation-only device was conceived in 2001 by members of the Delaware judiciary, including Vice Chancellor Strine, in consultation with members of the Delaware Bar and the Administration of Delaware Governor Ruth Ann Minner. After this Essay was widely circulated to certain constituencies and presented at a symposium sponsored by the Duke Law Journal and the Institute for Law and Economic Policy (ILEP), legislation that contained the mediation-only device was drafted. In June 2003, with the full support of the Court of Chancery, Delaware Governor Minner secured passage of the legislation from Delaware\u27s General Assembly. The mediation-only device was enacted into law as 346 and 347 of Title 10 of the Delaware Code. To the Editors\u27 knowledge, this legislation is the first of its kind adopted in the United States

Federalism in Corporate/Securities Law: Reflections on Delaware, California, and State Regulation of Insider Trading

In this brief Essay, I offer some thoughts on both the theory and the politics underlying the federalism question. My comments will touch on some of the controversies and also look at a somewhat quieter question, the state regulation of insider trading. Over the course of the last few years, judges in California and Delaware have traveled markedly different routes on questions involving the states\u27 role in regulating insider trading. A California court of appeal has recently expanded the reach of the state insider trading statute to cover a claim alleging misconduct in California by an executive of a Delaware chartered company. By contrast, Delaware Vice-Chancellor Leo Strine has hinted strongly that Delaware courts should consider getting out of the business of regulating insider trading entirely, notwithstanding a venerable old Delaware case long cited for the proposition that insider trading naturally breaches the fiduciary duty of loyalty. These contrasting approaches make a nice pair from which to think through the federalism question free from the blinding glare of controversy surrounding Eliot Spitzer, the shareholder ballot access proposal, or Sarbanes-Oxley

Maritime Commerce in Greater Philadelphia: Assessing Industry Trends and Growth Opportunities for Delaware River Ports

Maritime Commerce in Greater Philadelphia: Assessing Industry Trends and Growth Opportunities for Delaware River Ports is an evaluation of existing port conditions along the Delaware River and market-driven opportunities for expansion. The report includes an economic impact analysis, Delaware River port descriptions, global trends, and recommended strategies for ports growth. Key findings include:Region-wide port activity generates $69 million in tax revenues for state governments across Greater Philadelphia and more than$11 million in Philadelphia Wage Tax revenues.Each on-site port job supports two jobs from port activity and employee spending. Total regional port-related employment is 12,000+ jobs.Delaware River ports import nearly 1/2 of the nation's cocoa beans, almost 1/3 of the bananas, and a 1/4 of all fruit and nuts.Growing maritime commerce in Greater Philadelphia will require collaboration among Delaware River ports to leverage existing strengths and strategically invest in regional infrastructure improvements

The Market for Preclusion in Merger Litigation

The recent finding that corporate litigation involving Delaware companies very often takes place outside of Delaware has disturbed the long-settled understanding of how merger litigation works. With many, even most, cases being filed and ultimately resolved outside of Delaware, commentators warn that the trend is a threat to shareholders, to Delaware, and to the integrity of corporate law generally. Although the out-of-Delaware trend suggests that litigants are seeking to use the procedural rules of other jurisdictions to their advantage, we argue that the result need not threaten the interests of any of the stakeholders in deal litigation. We reframe the process of resolving merger litigation as a market for preclusion, in which plaintiffs seek to sell and defendants seek to buy an important element of transactional certainty. Moreover, this market has the potential to efficiently process and price shareholder complaints while also providing benefits to Delaware and to corporate law more generally. We are not blind to reality, however, and also address how a well-functioning market for preclusion can be distorted by the opportunistic conduct of plaintiffs’ and defense attorneys alike. Greater judicial oversight is necessary to preserve the benefits of this market while preventing the distortions brought on through opportunistic conduct. In order to make this a reality, however, judges in different courts must have a means of communicating and coordinating across state lines. We therefore offer a theory of horizontal comity in which judges build trust and cooperation through communication across jurisdictional boundaries. We use this theory to suggest a set of concrete policy proposals designed to provide for a more efficient market for preclusion

Democracy and the Dominance of Delaware in Corporate Law

Delaware has a population less than one-third of one percent of the nation, but it is the state of incorporation for more than fifty percent of US public companies and more than sixty percent of the Fortune 500. Delaware\u27s resulting dominance over the terms of corporate governance in the US has been the subject of one of the grandest debates within corporate law scholarship

Regulatory Competition and the Market for Corporate Law

This article develops an empirical model of firms’ choice of corporate laws under inertia. Delaware dominates the incorporation market, though recently Nevada, a state whose laws are highly protective of managers, has acquired a sizable market share. Using a novel database of incorporation decisions from 1995- 2013, we show that most firms dislike protectionist laws, such as anti-takeover statutes and liability protections for officers, and that Nevada’s rise is due to the preferences of small firms.Our estimates indicate that despite inertia, Delaware would lose significant market share and revenues if it adopted protectionist laws. Our findings support the hypothesis that Delaware faces competitive pressure to maintain its current laws, and that managers are willing to commit to such laws in order to attract capital

Gaming Delaware

Back in 2000, at the World Trade Center in Portland, Oregon, Time Belden and other Enron electricity traders carefully studied the regulations governing California\u27s new electricity market. Belden thought that the complex rules were prone to gaming. And game them he did. Under one strategy, Enron filed imaginary transmission schedules, creating nonexistent congestion, so as to draw on the rules\u27 provision of payment to alleviate congestion. They called it Death Star. Then there was Ricochet, or megawatt laundering, under which Enron circumvented price caps by exporting power out of California, only to bring the power back later, when the State, desperate for supply, had to pay a premium price. Eventually, with an energy-starved California up in arms and the Federal Energy Regulatory Commission investigating energy sales to the State, Enron\u27s lawyers paid the traders a visit. The traders walked the lawyers through the transactions, demonstrating legality under what must have been highly technical applications of the rules. The lawyers, expecting litigation, said, Alright, but is it too late to change the names? Can\u27t you just call the strategies Puppy Dog and Mama\u27s Cooking ? Enron\u27s North American trading desk made a profit of $2.2 billion in 2000, much of it due to activities in Western region electricity and natural gas. The crisis in California implied political scrutiny of Enron\u27s results, and the firm did not want the public to see the extent of its profits. So, still gaming the system, it booked$1 billion of pot as a reserve against potential liability, without actually showing the reserve in its published financials. In a legal regime of form without substance, an opportunistic actor can exploit the system in much the same way as Enron\u27s traders and accountants. In such a world, all law is rules-based and literally interpreted, and there are no backstop interpretive controls in the form of principles (to use the accountants\u27 term) or standards (to use the lawyers\u27 term)

On the role of infiltration and exfiltration in swash zone boundary layer dynamics

Funded by Mexican National Council of Science and Technology (CoNACyT) . Grant Number: 490080 Fulbright-Garcia Robles grant Instituto de Ingeniería UNAM International Collaborative Research project University of Delaware DGAPA UNAM National Science Foundation . Grant Numbers: OCE-0845004 , OCE-1332703 University of Delaware UK Engineering and Physical Sciences Research Council ‘Flood MEMORY: Multi-Event Modelling Of Risk & recoverY’ . Grant Number: EP EP/K013513/1Peer reviewedPublisher PD

Smoke-free law did affect revenue from gaming in Delaware

A paper recently published in the journal Tobacco Control purports to show that the implementation of a smoking prohibition in Delaware had no statistically significant effect on the revenues of three gaming facilities in that state. After correcting for evident errors in that analysis, I find that the smoke-free law did affect revenues from gaming in Delaware. Total gaming revenues are estimated to have declined by at least $6 million per month after the implementation of Delaware*s Clean Indoor Air Law. This represents a loss of over 12% relative to average monthly revenues in the year preceding the smoking ban.Gambling industry