From the classic Cary-Winter debate to current legal scholarship, commentators have struggled to explain Delaware's dominance in the market for corporate charters. Although scholars have offered nonsubstantive explanations such as network externalities, interest group dynamics, and Delaware's expert and specialized judiciary, much of the debate focuses on substantive law. This article takes another view. Arguing that a regulator can offer benefits through its lawmaking process, as well as its legal rules, the article suggests a process-oriented analysis of regulatory competition. The article focuses on the unique role of the Delaware judiciary in corporate lawmaking, a role that has received little attention from corporate law scholars. The article demonstrates that Delaware uses a unusual process to make corporate law, relying heavily on judge-made law, but employing a different lawmaking structure than that used by other states. As a result of this structure, Delaware judicial lawmaking more closely resembles legislation in its scope, flexibility, and responsiveness. The article then evaluates this lawmaking structure from a standpoint of comparative institutional advantage. In particular, the article compares Delaware's process to the legislative process. The article concludes that Delaware lawmaking offers particular advantages, including flexibility, responsiveness, reduced political influence, and transparency. These benefits increase Delaware's ability to adjust its corporate law to changes in the business world. The article's explanatory power includes its identification of the role of the Delaware courts as central to Delaware's dominance of the market for corporate charters. Moreover, the article's assessment of the importance of the lawmaking process has important implications for the application of Delaware's success to continuing questions of regulatory design.
University of Cincinnati Law Review
Fisch, Jill E., "The Peculiar Role of the Delaware Courts in the Competition for Corporate Charters" (2000). All Faculty Scholarship. 1312.