Corporate Governance

Sensationalized Criticism (redux)

By J. Robert Brown

On the Harvard Corporate Governance Blog, JW Verret, a recent addition to the faculty at George Mason, writes his "own personal response" to my post criticizing his article and the practice in Delaware that he calls the "guidance function."  My post is here.  In it, I contend that the article (co-written by Justice Steele on the Delaware Supreme Court) condones "judges acting as lobbyists in the corporate governance debate, behavior that is highly political and damages the integrity of the courts.  The approach makes it easer to see the Delaware courts not as neutral jurists but as one more interest group and makes the idea of preemption at the federal level far more palatable."    

Verret doesn't really respond to this, mostly reiterating that judges expounding on legal issues outside the courtroom is an inherently good practice and taking solace from the claim that others do it.  As a matter of empirical evidence, there is not another court in this country that use speeches, talks, and articles to expound on legal issues that may come before it in a manner similar to the Delaware judges.  Perhaps these other judges and courts collectively know something that the Delaware judges (and Verret) do not. 

But what intrigued us most at the Race to the Bottom was his characterization of the Blog as "sensationalist."  It is an odd choice (sensationalism defined at dictionary.com as "subject matter, language, or style producing or designed to produce startling or thrilling impressions or to excite and please vulgar taste").  Whatever adjectives regular readers might use to describe the prose and the impressions on The Race to the Bottom, we suspect that "thrilling" and "vulgar" are not among them.   

Having said that, it is interesting to note that the Delaware Chancery Court used the same term, describing commentary on the Blog as "sensationalized" in Melzer v. CNET Networks, Civ. Action No. 3023-CC, n. 19 Del. Ch. Ct., Nov. 21, 2007.  The term was uttered in reply to a "thrilling" post criticizing excessive pleading standards in inspection rights cases.  The response to that misguided comment is here. 

That a court and a former law clerk would use the same term perhaps reflects the very "guidance function" that Verret praises in his article and his post.  At least this bit of guidance is on a blog where anyone can find it.  That is not true of all of the "guidance" provided by the Delaware judges. 

Full post as published by The Race to the Bottom on May 30, 2008 (boomark / email).