Page 5 - Delaware Lawyer - Issue 3 - 2024

latest issue of Delaware Lawyer
It seems particularly fitting that this
follows directly after the prior
issue on “The Delaware Way.”
First and foremost, it is fitting
because this issue includes a pre-retire-
ment interview with Vice Chancellor
Sam Glasscock III, who serves as a per-
fect example of the Delaware Way. As
readers may already know, Vice Chan-
cellor Glasscock is retiring in January
2025. The hallmarks of the Delaware
Way — courtesy, civility, collegiality,
professionalism — are the same attri-
butes that have characterized Vice
Chancellor Glasscock’s judicial career
and longstanding service to the State of
Delaware.
The Delaware Way not only makes
Delaware a jurisdiction that lawyers
want to live and work in, but also
impacts how law is practiced in Delaware
and, by extension, how substantive law,
including corporate law, is developed. As
Vice Chancellor Glasscock explains,
this process is really about develop-
ing a system of law that appropriately
balances relevant interests, that meets
reasonable expectations of the various
parties involved, and that thereby re-
turns value in the corporate market-
place. The process is continual and
incremental, and frequently sparks de-
bates on issues concerning Delaware’s
role and the body of corporate law for
which is it well known throughout
the world. In this magazine edition
focusing on corporate law, we highlight
some of these issues.
In our first article, Professor Michal
Barzuza of the University of Virginia
School of Law discusses key differences
between the substantive corporate law
of Nevada and Delaware. Professor
Barzuza highlights her conclusion
that Nevada corporate law was pri-
marily crafted and has been actively
marketed as a deliberate contrast to
Delaware, specifically as being more
favorable to corporate fiduciaries.
These issues have been pushed to the
forefront of corporate law debates
due to recent decisions by a handful
of Delaware corporations to reincor-
porate in Nevada. Lawsuits brought
by stockholders to challenge these
decisions have caused the Delaware
courts to have to consider if such a
decision by corporate fiduciaries is
one to which “entire fairness” applies.
As previewed above, our sec-
ond article is an interview with Vice
Chancellor Glasscock. In addition to
touching on the debates and recurring
issues relating to Delaware’s role and
place in the corporate marketplace,
Vice Chancellor Glasscock also shares
his lessons and observations from
more than 25 years of judicial service
on the Court of Chancery, as well as
the trajectory of his own life and legal
career. With his characteristic blend of
humor and humility, Vice Chancellor
Glasscock touches on everything from
his almost-career path at a chicken
plant and his current favorite reads to
what he is most looking forward to
in retirement and what he hopes his
judicial legacy will be.
In our third article, Delaware
practitioner Ben Lucy addresses the
shortcomings of at least one recent
“drive-through” criticism of Dela-
ware, which came in the form of Hal
Weitzman’s 2022 book, What’s the
Matter with Delaware. Lucy notes
how such critics tend to fixate on Dela-
ware’s preeminent role in corporate
law and — in an oversimplified way
— attempt to explain how Delaware
favors corporate interests, particularly
those of corporate management, over
others. With respect to corporate law,
this outside perspective frequently
ignores important nuance and the
rich, ongoing debate about corporate
EDITOR'S NOTE
Ryan Lindsay
law in favor of a facile argument
that Delaware is primarily driven by
the desire to protect its status as the
favored corporate jurisdiction.
Running through all of these articles
is the common theme of asking what
Delaware does (or does not do)
that differentiates it from the other
jurisdictions that corporations could
decide to call their legal home. Dela-
ware’s favored status in the corporate
marketplace, and challenges from oth-
er jurisdictions to that preeminence,
is an evergreen issue. Supporters of
Delaware’s primacy may take comfort
in Vice Chancellor Glasscock’s con-
clusion on the current iteration of this
debate: Delaware is not in trouble.
But he wisely notes that Delaware’s
advantage is due to its longstanding
commitment to finding the right bal-
ance between corporate fiduciaries
and the stockholders they serve. That
is a task to which prior generations of
Delaware lawyers have dedicated their
time, talent and legal careers, and it
remains the ongoing task for those of
us privileged to practice corporate law
in this state.
Ryan Lindsay
ISSUE 3 2024 DELAWARE LAWYER 3