Yesterday I attended an all-day symposium titled: " The Third Annual Symposium on the Law of Delaware Business Entities–Good Faith After Disney: The Role of Good Faith in Organizational Relations in Delaware Business Entities." (Yes, it is a long title, but it was worth it.) The event was "emceed" by Prof. Ann Conaway of Widener University Law School and featured leading experts from Delaware and across the country, as well as 2 members of the Delaware Court of Chancery and 2 members of the Delaware Supreme Court (including the Chancellor and the Chief Justice.)

  Among the insights were the differences between good faith in the fiduciary context compared with the purely contractual context. Another key point, by at least some of the jurists and commentators: Despite reference in some opinions to fiduciary duties of directors as including a triad of: loyalty, due care and good faith, the Disney opinions made it clear that no pronouncement was being made on whether "good faith" was a separate duty, nor–many argued yesterday–is there any basis in the DGCL for a separate duty.  In my view,  the consensus of most panel members can me summarized in this way: Good faith in the fiduciary context is neither a "stand-alone" nor an independent "duty" but rather is part of the other fiduciary duties and is often used as a rhetorical device to describe other aspects of fiduciary duty. One indication of this is the general recognition that there is no separate cause of action for "breach of good faith" (whatever that is, though there are many definitions, especially when compared to "bad faith".)  Of course there is much more to say on this point, and for 7 whole hours yesterday all aspects of this issue were discussed, but this is just a short post on the "headlines". 

  Coincidentally, yesterday on the Conglomerate blog,  Usha Rodriques posted her observations and statistics about the Delaware judiciary being more prolific and more involved in seminars and in writing law review articles than most state judges. She cited statistics that Delaware jurists from the Chancery Court and Supreme Court have published 50 articles over the past 16  years (35 of them since 2000), not including all the seminars around the country at which they make presentations.  I will leave it to others with better math skills to apply those numbers to the fact that there are only 5 members of the Chancery Court and 5 members of the Supreme Court. Still more, each of these courts routinely publish formal opinions that can average 50 or more pages, and often longer. In essence, many of their routine opinions are very similar to law review articles themselves ( Note that the Chancery Court’s  last Disney opinion was over 170 pages long). Can anyone cite similar statistics from other state judges–especially in proportion to the smaller number of total judges in Delaware compared to most states?