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Diversity and the Delaware Courts

By J. Robert Brown

We read with great interest the brief interview of Chief Justice Steele of the Delaware Supreme Court conducted by J.W. Verret from George Mason on The Conglomerate.  We were struck by one particular passage.  When asked about what was unique about Delaware's approach to corporate law, the Chief Justice had this to say:  

• First, our specialized Court of Chancery. This is a collegial Court of five experienced lawyers who engage in efficient fact finding and issue opinions promptly. I should add that our 5-member Supreme Court is made up 3 former Vice Chancellors. Our non-jury equity jurisdiction ensures that the complex and highly technical questions of finance and governance that are at the heart of the disputes are ably resolved.
  

It may be a collegial court, but the Chief Justice could just as easily have ascribed the "unique" approach to a stifling, pro-management conformity.  As we noted in the earlier post, there are five chancellors on the Chancery Court and five justices on the Delaware Supreme Court.  The two courts are remarkably lacking in diversity.  Of the ten positions, there are no people of color and only one women.  As for their background, they are likewise remarkably similar.  Almost all of them came out of defense oriented law firms, with three from Morris, Nichols (Chandler, Parsons & Holland) and three from Skadden Arps (Lamb, Strine, & Berger). 

In other words, it is a court where most of the members of the Supreme Court come from the Chancery Court (allowing them to be properly vetted for their philosophical approach to decision making) and where most of the members of the both benches come from the same background.  It is perhaps this more than anything else that explains the "unique" approach of the Delaware courts. 

Full post as published by The Race to the Bottom on September 15, 2008 (boomark / email).