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 article here. (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 Cheffins.
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 overlap of corporate law and bankruptcy law. See, e.g., article available here that discusses that confluence.
Supplement: Professor Bainbridge discusses here a somewhat related issue of "choice of forum provisions" in bylaws, as well as linking to an article by Professor Quinn on plaintiffs bringing Delaware-law based claims in non-Delaware courts.