Justice Henry duPont Ridgely of the Delaware Supreme
Court has published an essay on the procedure that courts around the
country may follow to present issues of Delaware law to
Delaware's High Court. The essay was based on His Honor's remarks at
Southern Methodist University's Corporate Counsel Symposium and was published
in the SMU Law Review, Volume 63, Number 4, Fall 2010, 1127. Read
(Pictured below is the Supreme Court Building on The Green in Dover, Delaware,
where most oral arguments are held.) The SMU Law Review graciously
consented to this posting of Justice Ridgely's article with the following
acknowledgement about the article: "Originally appearing in Vol. 63, No. 4
of the SMU Law Review. Posted with permission from the SMU Law
Review and the Southern Methodist University Dedman School of Law."
Justice Ridgely's essay should be of great interest
to readers who are aware of the increased attention given by scholars and
practitioners to non-Delaware courts deciding issues of Delaware law. See,
e.g., Professor Larry Ribstein's discussion of this topic and the
related issue of jurisdictional competition, available here. See
also the discussion available here,
of a related article by Professors John Armour, Bernard Black and Brian
By way of example, the essay explains the confusion that
could have been avoided, and the wasted judicial resources that could
have been saved, if several courts that "guessed wrongly"
about what Delaware law was on the topic of creditor's rights in the zone
of insolvency, had instead availed themselves of the procedure that would have
allowed a definitive answer on the topic by the Delaware Supreme Court. In
addition to various courts, the Securities and Exchange Commission may avail
itself of this procedure, and did so in the case of CA, Inc. v.
AFSCME Employees Pension Plan, 953 A.2d 227 (Del. 2008).
In order to avoid this risk of this post competing with
the essay in length, I close with a reference to footnote 68 of the essay which
presents a compelling analysis that supports the effort of a bankruptcy court
to certify questions of Delaware law to the Delaware Supreme Court. That option
is especially noteworthy in light of the increasing intersection of corporate
law and bankruptcy law. See, e.g., article available here
that discusses that confluence.
Read more Delaware business
litigation case summaries and commentary on Delaware
Corporate and Commercial Litigation Blog, a blog hosted by Francis G.X. Pileggi,
of Fox Rothschild LLP.