Legacies, Lessons and Launchpads: Charting Delaware’s Course in a New Era
It is a great honor for me to be part of the Weinberg Distinguished Lecture series. Thank you for inviting me. My remarks today are solely my own and are not made on behalf of the Delaware Supreme Court or any other person.
As I near the end of my twelve-year term, I have been reflecting on the amazing privilege and honor I have had serving as a Justice on the Delaware Supreme Court. I am so grateful to all who have been part of my journey. In thinking about how to describe it, I was recently inspired by NASA’s stunningly successful Artemis II Mission. That Mission – lasting only 10 days – had a successful launch, lunar fly by and a safe splashdown off the coast of San Diego. One of the Artemis II’s astronauts’ description of their “group activity” could also be used to very accurately describe working as a member of our collegial, collaborative Delaware Supreme Court. They described their “group activity” in terms of functioning as one, embracing mutual accountability, being dutifully linked, and in terms of joy-filled contribution and profound, brother-sister like camaraderie, exemplifying that high-stakes success requires prioritizing human connection.[1] These sentiments describe precisely my experience over the past twelve years, and truly, I have been blessed to have been part of this collegial Supreme Court.
Recently, I created a slide deck that I used in two corporate law presentations this year—one in Salt Lake City and one in San Francisco. The slides show the various changes in our Supreme Court’s composition from 2014 to the present. Interspersed in the deck, in chronological order, are many of the significant corporate law opinions our Court issued during the last twelve years. These slides suggest that, although our Court’s composition has changed frequently over the last 12 years, the development of the law has been remarkably stable and uninterrupted by the transitions. That is a good thing. The law should not change dramatically simply because the Court’s composition changes.
That compilation of corporate decisions, resting upon over 200 years of prior judicial decision-making, serves as a legacy upon which future generations can build. As participants in Delaware’s corporate governance regime, we can try to distill what we have learned from that vast experience. We can then think about how our legacy and lessons learned can help Delaware launch into the next corporate governance era and to navigate through an increasingly turbulent atmosphere. Hence the title – Legacies, Lessons, and Launchpads: Charting Delaware’s Course in a New Era.
I. Foundational Legacies
Let’s talk first about some key foundational legacies that have been an essential part of our Delaware corporate governance regime. I will use five “i’s” to keep it simple.[2]
First, I start with the Independence of our Judiciary. Independence is a key foundational principle upon which everything else rests. The judiciary is the guardian of the republic and the custodian of the rule of law.[3] Indeed, in the seminal case of Marbury v. Madison, Chief Justice John Marshall famously stated that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[4] An independent judiciary ensures that judges have a high level of integrity and the ability to make tough decisions that are not affected by the extrajudicial pressures.[5] An independent judiciary facilitates decisions that are based on the letter and spirit of the law and guards the Constitution and the rights of individuals from turbulent and fleeting political whims that might jeopardize them.[6] It not only allows courts to rectify laws that are unjust, but deters their very creation,[7] and it affords legitimacy to the rules that form the foundations of our everyday lives.
One of the best illustrations of our Delaware courts’ independence is the Court of Chancery’s decision in Belton v. Gebhart in 1952.[8] It was the only ruling among five cases to be affirmed by the United States Supreme Court in Brown v. Board of Education. Chancellor Seitz held in his post-trial opinion that in our Delaware society, state-imposed segregation in education itself had resulted in black children, as a class, receiving educational opportunities which were substantially inferior to those available to white children otherwise similarly situated.[9] This landmark decision has been an important and historic part of our Delaware judicial history. It set a high bar for all who have followed. I believe that spirit of judicial independence and unwavering focus on the rule of law permeates our judicial culture in Delaware as much today as it did then. And with the level of divisiveness in our country, and even in our State, the present time is as challenging for judges now as it was then.
Second, a by-product of our independent judiciary is our wealth of case law spanning over 230 years, replete with a number of Iconic Delaware cases. These cases are the building blocks, guideposts, and guardrails for corporate practitioners who advise the corporations and alternative entities who have chosen Delaware as their domicile. Who can forget Aronson v. Lewis,[10] Guth v. Loft, Inc.,[11] Schnell v. Chris-Craft Industries, Inc.,[12] Weinberger v. UOP Inc.,[13] or one of the longest-running cases, Cede & Co. v. Technicolor, Inc.?[14]
Many decisions required our Court to address brand new, emerging corporate trends. Take Unocal for example.[15] Our Court was tasked with addressing a target board’s conduct in responding to a two-tier, front-end loaded cash tender offer. We devised a new intermediate standard of review. In crafting this standard, we emphasized a theme that runs throughout our corporate law, namely, “the element of balance.”[16] There we said that “[i]f a defensive measure is to come within the ambit of the business judgment rule, it must be reasonable in relation to the threat posed.”[17]
Other blockbuster cases followed as our Court addressed corporate auctions and shareholder rights plans—with our decisions in Revlon,Inc.v.MacAndrews & Forbes Hldgs.,Inc.[18] and Moran v. Household, Int’l, Inc.[19] which were followed by Blasius Indus., Inc. v. Atlas Corp.[20] in 1988, another intermediate standard of review decision out of the Court of Chancery. Other significant decisions built upon this new framework. These would include Paramount Commc’ns, Inc. v. Time, Inc.,[21] Paramount Commc’ns, Inc. v. QVC Network, Inc.,[22] Unitrin, Inc. v. Am. Gen. Corp.,[23] and Quickturn Design Sys., Inc. v. Shapiro.[24]
Our Court established the entire fairness standard of review in Weinberger emphasizing the importance of process (fair dealing) and fair price in the context of a freezeout merger.[25]
New questions about bad faith were addressed in In re Walt Disney Co. Deriv. Litig. [26] and Stone v. Ritter. [27]
A few of the decisions caused a stir and were either legislatively overturned or were the subject of many “work-arounds.” I am thinking of Smith v. Van Gorkom, [28] which was followed by the enactment of 8 Del. C. § 102(b)(7), and Omnicare, Inc. v. NCS Healthcare, Inc.—a 3-2 decision where Chief Justice Veasey and Justice Steele dissented.[29]
We had a new wave of iconic decisions from our Supreme Court beginning in 2014 with Kahn v. M & F Worldwide Corp.[30] That was soon followed by Corwin v. KKR Fin. Hldgs. LLC in 2015.[31]
A triad of cases addressed aiding and abetting liability, namely, RBC Cap. Mkts., LLC v. Jervis;[32] In re Mindbody, Inc., S’holder Litig.;[33] and In re Columbia Pipeline Grp., Inc. Merger Litig.[34]
Still other cases addressed director independence including Sandys v. Pincus,[35] Delaware Cnty. Emps. Ret. Funds v. Sanchez,[36] and Marchand v. Barnhill (also addressing Caremark liability).[37]
Later blockbusters include Salzberg v. Sciabacucchi,[38] Manti Hldgs., LLC v. Authentix Acquisition Co., Inc.;[39] Brookfield Asset Mgmt., Inc. v. Rosson (overruling Gentile v. Rossette);[40] United Food & Com. Workers Union v. Zuckerberg;[41] In re Tesla Motors, Inc. S’holder Litig. (Solar-City);[42] Coster v. UIP Cos., Inc. (blending the Unocal and Blasius standards);[43] and LKQ Corp. v. Rutledge[44] (certified questions addressing forfeiture-for-competition provisions).
These were followed by a series of very high-profile cases that kept our Court extraordinarily busy during the past two years – In re Match Group, Inc.Deriv.Litig.;[45] In re Dell Techs. Inc Class V S’ holders Litig. (the attorney’s fees opinion);[46] Maffei v. Palkon (TripAdvisor);[47] In re Tesla, Inc. Deriv. Litig.;[48] Johnson & Johnson v. Fortis Advisors LLC (the earn-out case);[49] Moelis & Co. v. West Palm Beach Firefighters’ Pension Fund;[50] and Rutledge v. Clearway Energy Grp. LLC (addressing certified questions concerning the constitutionalityofS.B.21).51 These were only a few of the many corporate cases decided by our Court. The list is long. Our Delaware case law provides the framework relied upon by corporate practitioners around the country and even for practitioners abroad who work on cross-border transactions involving Delaware entities.
Third, we are fortunate to have a governance infrastructure that functions in an Interdependent and symbiotic, coordinated way to make Delaware a hospitable place to be for corporations and alternative entities. Delaware’s corporate infrastructure is more than a collection of laws. Rather, it is a comprehensive, symbiotic and synergistic system of specialized courts, a proactive General Assembly, a Bar skilled in corporate law, and a highly efficient Division of Corporations within the Secretary of State’s office.
Fourth, is the value Delaware places on Innovation and the enabling features of our law. Our case law reflects these deeply ingrained values. Recall in the iconic Unocal case, our Court observed over 40 years ago that “our corporate law is not static[,]” and that “[i]t must grow and develop in response to, indeed in anticipation of, evolving concepts and needs.”[52] Our Courts provide needed guidance by addressing new situations as they arise on a case-by-case basis.
On the administrative front, our Court has re-invigorated its Law & Technology Commission which has been working hard on analyzing new emerging technology issues, including generative AI. The changes in technology affecting our courts and practicing Bar are numerous and include AI’s impact on the attorney-client privilege, work product protection, ethical confidentiality, and even spoliation. Our Commission has studied deep fakes, hallucinations, ephemeral messaging, and the use of AI technology in assessing witness credibility. We have witnessed many demonstrations of new technology including hologram technology for remote testimony and various AI technology used in legal research. Our Commission also devised an Interim GenAI policy, which is presently being revised and finalized, for our Judicial Branch.
And our Delaware courts, along with the able assistance of many members of our Bar, are continuously updating and modernizing our court rules. As for our corporate laws, our Corporation Law Section’s Corporate Council meets regularly to consider amendments to the DGCL to ensure sure that the DGCL remains user-friendly and up-to-date. Our Delaware corporate law – consisting of both judge-made and statutory law – is a living, breathing enabling framework that functions as a key part of a well-developed infrastructure.
Fifth, there is Integrity. Perhaps this is the most important piece of the corporate law foundation. Any system of creating, enacting, and administering a body of laws is only as good as the people involved in that process. If a system of corporate governance fails to inspire the confidence of those who avail themselves of it, then those involved in that system need to understand why confidence has eroded. We have been fortunate in Delaware to have extremely well-qualified judges who do their best every day, under increasingly difficult circumstances, to fairly and impartially administer the law. We need to make sure we encourage our best and most talented lawyers to consider public service and to apply for these positions when they become available. And our State needs to ensure that our judicial officers have the support and security they need to safely and effectively function in our increasingly polarized and dangerous environment.
We also depend upon our practicing Delaware Bar to uphold our State’s high standards. Many know what I mean by the “Delaware Way” – our brand of civility. I include this as part of our State’s legacy of integrity. But even here, there is pressure on these well-ingrained values as litigation practices continue to become more commercially driven. Aggressive litigation tactics constantly strain judicial resources and raise the costs for all players in the corporate litigation arena as judicial officers must, in addition to addressing the merits of fast-paced and complex substantive issues, also exercise procedural oversight over the litigation process and curb litigation abuses.
On May 12, 2026, the Court of Chancery published new Guidelines on Attorney Civility.[53] Those Guidelines reinforce that “[c]ivility is essential to ensuring the public’s and litigants’ confidence in the Delaware judicial system, and the just, speedy, and efficient resolution of disputes.”[54] The new Guidelines state further that “[c]ivility not only helps to safeguard the Court’s legacy as a fair and respectful forum, but also enhances the reputation of the profession as a whole.”[55] I agree wholeheartedly. The “Delaware Way” should not be viewed as weakness. Rather, exercising professionalism, common courtesy and kindness can restore an atmosphere of cooperation. It can keep lines of communication open and well-functioning to the ultimate benefit of your corporate clients. Civility, in fact, reinforces the very foundation of justice and the rule of law.
II. What Lessons Have We Learned?
What lessons have we learned over the years? I will propose five for our discussion today. Some involve the creation of laws by the General Assembly, and some involve judge-made common law.
Our body of corporate law has developed on these two parallel tracks – first, in our General Assembly which enacts amendments to the DGCL every year and secondly, through the efforts of the Delaware courts’ “case-by-case advancement of corporate and equity jurisprudence.”[56] Let’s focus first on what lessons we have learned about how corporate policy is established in our State, who has a voice, and whose interests should be weighed, in setting that corporate policy. The answers to these questions may be different depending on which track we are talking about. But I have a feeling that both tracks have tended to converge at a common junction.
First, as for the judicial track, case-by-case development of our corporate common law, our courts must decide cases based upon the law and the record before us and not be influenced by political or outside pressures. Our world has become increasingly divisive, with rhetoric being broadcast far and wide through social media at the press of a keystroke. Practitioners and members of our judiciary who participate in academic programs on corporate law are now frequently asked about external pressures on lawmakers and judges. For example, in April of this year, I participated in a fireside chat at the Berkeley Forum on M&A and the Boardroom sponsored by UC Berkeley’s Center for Law and Business. I was asked whether our Court has felt pressure resulting from certain entities choosing to domicile or to redomicile in other states. I answered that politics and external concerns about what other states may or may not be doing plays no role in our decision-making.
Recall that our Court, in TripAdvisor,[57] recently held that business judgment, not entire fairness, was the appropriate standard of review to be applied in a suit challenging TripAdvisor’s decision to effectuate corporate conversions that would change its domicile from Delaware to Nevada. Thus, our Court actually made it easier for companies to exit Delaware and redomicile elsewhere if they wish to do so. That does not suggest a result-oriented or protectionist attitude. Rather, our independent judiciary is simply focused on doing its job based upon the law and the record before us. Moreover, I have always believed that competition – fair competition – is a good and healthy thing. I also believe that the United States Supreme Court got it right in CTS Corp. v. Dynamics Corp. of Am. when that Court held that a corporation’s internal affairs are properly the subject of state law, not federal law.[58] States are, and should be, free to design their own corporate governance regimes.
Although the judiciary must not be swayed by external pressures, the General Assembly’s members are frequently lobbied by different groups, each with its own interests, and ideas for new legislation can come from many sources. The General Assembly, in enacting amendments to the DGCL, frequently takes the lead from corporate practitioners in the State who sit on the Corporation Law Council. These practitioners assist in the drafting process by proposing revisions to the General Assembly after much careful study and debate.
What lessons have we learned about the process of establishing our State’s corporate policies? What principles should guide this process? What are the overall goals and objectives in drafting amendments to the DGCL? Whose voices should be heard and whose interests should be weighed in setting those goals and objectives? I would propose that the first lesson learned is that striving for balance is a healthy goal for the long-term. Based upon my experience as one who served on the Corporate Law Council for eight years (when I was a practitioner), the members of the Council endeavor to leave any conflicts and special interests at the door and to try to draft laws that are in the best interests of Delaware. During my tenure on the Council, there seemed to be general agreement among this diverse group of practitioners that part of our State’s corporate mission and its best interests involved striving for a balanced approach.
By “balanced approach” I mean balance as between the interests of corporate managers and shareholders. Delaware corporate law invests “central management with wide discretion to make business decisions and a wide choice of means to effect those decisions[]” because Delaware corporate lawmakers recognize that “stockholders are benefitted by a broad, enabling statute.” [59] A fundamental principle is reflected in 8 Del. C. § 141(a) that the business and affairs of the corporation are managed by or under the direction of the board of directors. Shareholders, by contrast, have relatively little power in the management of a corporation. [60] Yet, our General Assembly has also “recognize[d] that managers can abuse their clout, and ha[s] therefore deployed means to prevent and remedy disloyalty.” [61] For example, “stockholders meet annually to elect directors[,]” “certain transactions [] may not be implemented by the directors without stockholder approval[,]” and “statutory and contractual-authority in corporate management is policed by courts of equity[.]” [62] This balanced approach aims to facilitate “managerial innovation and creativity, while preventing managerial self-dealing and entrenchment.” [63]
If our State’s aim in drafting corporate statutes is something other than trying to maintain this traditional balance of power, then what is it? And if one of the goals is trying to strike the kind of balance that I described, how best does our State accurately assess how it is doing in that regard? If I stay with my NASA Artemis II analogy, part of a NASA launchpad is a telemetry system. In that context, telemetry system might be loosely defined as a system designed to reliably convey measurement information from a remotely located general source to users located in space or on Earth, and typically would include scientific sensors, science housekeeping sensors, engineering sensors and other subsystems on-board a spacecraft.
Back down to Earth and Delaware – is there an information-gathering system that reliably provides information about how well our system of corporate governance is working and about whether there is a healthy, sustainable balance of corporate interests? I would submit that one such system is the Corporation Law Council whose diverse members meet regularly to discuss the state of the DGCL. They continuously engage in a self-evaluative process to assess what is, and what is not, working.[64] Many of the amendment ideas that they propose have a genesis in their corporate work in the trenches with their clients who are typically based outside of Delaware. Many amendments are very technical in nature and are designed to facilitate new ways of doing complex corporate transactions. Others involve and require a balancing and consideration of various interests. I recall, for example, that amendments to Section 262 – the appraisal statute – were always difficult in this regard because shareholders and corporate directors and managers would often have very different ideas about the merits of the various ideas being debated.
These fundamental questions about what the objectives of our statutory scheme should be, are worthy of continuous thought and discussion – especially in our current climate where various groups or individuals have publicly asserted that our system has tilted too far one way or another. The criticisms have emanated not only from outside of Delaware and others competing for corporate franchise business, but also, from within our State. However, I have always felt that if people are very good at something, they will invariably be a target for criticism from others who compete and wish to take their place. So, in that sense, I am reassured that being talked about is not such a bad thing.
The reality is that these types of debates are not new. There have been many occasions when one group or another has warned that the “sky is falling” and that our State is leaning too far in one direction or another. Critics have been with us for decades.[65] As former Justice Jack Jacobs observed in his article, “Fifty Years of Corporate Law Evolution: A Delaware Judge’s Retrospective,” in the 1960’s early 1970’s “Delaware, the state of incorporation of a majority of New York Stock Exchange and Fortune 500 companies, came under harsh academic criticism for its anti-shareholder bias.”[66] He noted that there were “proposals for outright federalization of all state corporation law[.]”[67]
Even in the midst of this turbulence, the Delaware judiciary and system of corporate laws remained strong. Our system of corporate governance has weathered storms in the past and undoubtedly there will be new ones in the future. As the motivational speaker and author, Vivian Greene, once said, “Life isn’t about waiting for the storm to pass. It’s about learning how to dance in the rain.” Our State seems to have learned to dance in any kind of weather. To do that, speaking of the judicial track, we need to maintain an independent judiciary capable of continuing to independently say what the law is without fear of pressure or retaliation. On the legislative track, we need a General Assembly and Bar that is capable not only of maintaining a set of state-of-the-art corporate statutes, but capable of anticipating what changes might be needed to address our rapidly changing environment. So to get to the point, what is my first suggested lesson we have learned?
I would say that a primary goal of setting corporate policy is to strive for a set of laws that attempts to preserve that traditional balance between managerial and stockholders’ interests, and to be clear if that is the objective of the legislative effort. If the goal is something else, for example, to try to drastically limit statutorily avenues for stockholders to have access to justice for resolution of legitimate claims, and to essentially have a more prescriptive regime with very few cases as a result, then those advocating for that type of regime should be clear about what their goal is. Or if the goal is to provide stockholders wide-ranging access to file lawsuits against corporate managers with very few gateways to filing, then those advocating for such a view should be clear. But if the goal is something other than our traditional balanced approach, I would also ask what the basis is to think that such a regime would stand the test of time and be able to not only instill, but to maintain, the confidence of all relevant participants?
My sense is that tilting to extremes has proven to be unsustainable in the long-term. On the one hand, those who invest their money and entrust it to corporate managers should have access to justice for the resolution of legitimate claims of corporate wrongdoing. On the other hand, as we have seen in our experience with unmeritorious and weak claims and strikes suits, tilting the other way can be unworkable. In Trulia,[68] for example, the Court of Chancery corrected such an imbalance and subjected disclosure-based settlements of stockholder class actions to greater scrutiny. Hence, our Delaware experience seems to point in the direction of trying to strike a balance and then taking either judicial or legislative action to bring things back to center.
Even if there is a general consensus that the goal is to strike a balance, differences of opinion, no doubt, will exist as to whether we have achieved a balance or not, and where exactly we are on that continuum. Those advocating for the passage of S.B. 21 suggested that our system had tilted out of balance and too far against corporate managers and controllers. A super-majority of the General Assembly agreed and addressed that concern with the passage of statutory amendments designed to add clarity and predictability for those involved with conflict transactions. The amendments provided for various safe harbors to restore availability of the business judgment rule if those safe harbors are satisfied. With passage in both houses with the required supermajority (two-thirds) vote, and signature by the Governor, the General Assembly has spoken on that issue in resetting that aspect of corporate policy. A press release by the Governor stated that the legislation clarified key governance structures to reinforce Delaware’s reputation for equitable, predictable, and efficient corporate oversight and also codified “a balanced framework for stockholder access to corporate books and records.”[69]
Any regime will, sooner or later, face its critics as corporate disputes arise and will need to be resolved. No system of dispute resolution, in my view, is capable of satisfying every corporate constituent all of the time. Unanimity exists in very few places in corporate law. My mother would wisely say to me on occasion, “you can’t please everyone all the time.” Part of the concern in making any major change to correct a perceived imbalance is that you may alienate others. That is, and always has been, a difficult part of the balancing exercise.
As for the development of the corporate law on the judicial track, our State has valued balance there as well. In keeping with our practice of staying within our judicial lane, we have stayed out of such legislative debates and have focused only on those issues submitted to us to decide. For example, our Court recently upheld the constitutionality of the S.B. 21 amendments in the Clearway v. Rutledge case. With that decision, our Court has spoken on the matter as well and resolved the much narrower issues presented to our Court. The courts will likely next be presented with issues about whether S.B. 21’s procedural safe harbors have been satisfied and perhaps issues of first impression about how the revised statute should be construed in new and different circumstances. Thus, our law will continue to evolve on a case-by-case basis over time.
The idea of balance as it pertains to our judiciary is not new. Certainly on the broader national front, there is growing concern that courts have become too politicized and that decisions are being affected by partisan loyalty rather than the rule of law.[70]
However, this very dilemma was already on the minds of Delaware’s constitutional architects in 1897 who expressed “deep concern over the politicization of the judiciary” and sought to ensure that decisions from Delaware courts would be free of partisanship and cronyism.[71] As a result, Delaware adopted its political balance requirement, which was codified in Article IV of our Constitution. This requirement prohibits either major political party from having more than a bare majority of judges or justices sitting in any of Delaware’s five major courts.[72] Delaware’s framers hoped that this constraint would make the bench bipartisan, bring about thorough and open discussion of issues, and facilitate fair and impartial decisions.[73] And indeed, in the century since, the Delaware judiciary has been celebrated for its competence and fairness. Delaware’s political balance requirement “encourage[s] a judiciary that is bipartisan in outlook and representative of the political mainstream.”[74] And although the requirement has been the subject of constitutional scrutiny in recent years,[75] there seems to be a general consensus in Delaware that the system has worked well. Political balance helps our courts remain independent, and as I have mentioned, judicial independence is key in a court’s legitimacy and its ability to preserve the rule of law. Principles of judicial restraint cabin our Branch’s reach to issues presented fairly and squarely before our courts.
Besides balance, what else has our experience taught us? I would say that a second lesson might be that we have come to appreciate the value of having, as part of our State’s governance goals, a body of law that sets clear guidelines, guardrails and predictable pathways for those who avail themselves of our law. This was reflected in the Governor’s release regarding S.B. 21.
Relatedly, maintaining a flexible system of laws that is broadly enabling – as opposed to prescriptive and restricting – is another important goal. Our DGCL is a broad enabling statutory scheme founded on notions of freedom of contract, private ordering, and flexibility. As our Supreme Court said in Salzberg v. Sciabacucchi, “the DGCL allows immense freedom for businesses to adopt the most appropriate terms for the organization, finance, and governance of their enterprise.”76 We emphasized that, “‘[a]t its core, the [DGCL] is a broad enabling act which leaves latitude for substantial private ordering, provided the statutory parameters and judicially imposed principles of fiduciary duty are honored.’”[77] We added that “Delaware’s corporate statute is widely regarded as the most flexible in the nation because it leaves the parties to the corporate contract (managers and stockholders) with great leeway to structure their relations, subject to relatively loose statutory constraints and to the policing of director misconduct through equitable review.”[78]
We also have a common law presumption of director independence and a business judgment rule that presumes directors acted in good faith and in the best interests of the corporation.[79] The fundamental principle is that the business and affairs of a Delaware corporation are managed by or under the direction of its board of directors.[80] As a general matter, they have great freedom to do so within our enabling framework without courts second-guessing them.
A third lesson we have learned in the corporate world is that if a deal is to withstand challenge, deal lawyers should focus on the three “p’s” – process, proxy and price. I will focus on process and “proxy” which is my short-hand reference to disclosure. Our corporate cases are replete with statements about the importance of process. As former Chief Justice Leo Strine has stated, Delaware courts “do not wish to maximize judicial rulings finding board actions unreasonable; we wish to provide an incentive for boards to use good processes that can be trusted to reduce the role of self-interest and promote a focus on what is in the best interests of the stockholders.”[81] Accordingly, the Delaware Supreme Court, and now the General Assembly with its recent revisions to Section 144, have established “best practices” procedural pathways that, if followed, allow corporate fiduciaries to earn judicial deference.[82] For example, our Supreme Court has “held that arm’s-length negotiation provides ‘strong evidence that the transaction meets the test of fairness[]’” and has recognized that “[a] fair process usually results in a fair price.’”[83]
Following a good process and a transparent one is good advice for those charged with crafting our laws as well. Any changes to the DGCL are subject to great study and a careful deliberative process.[84] “[O]ur legislature and governor defer in the making of statutory law to the corporate law council of the Delaware State Bar Association. That Council consists of corporate lawyers of all kinds, not just the transactional lawyers who represent corporate managers, but also plaintiffs’[ ]lawyers who represent stockholder interests.”[85] This careful process also contributes to stability in our State’s corporation laws. Further, in aid of promoting stability, Article IX of the Delaware Constitution requires a two-thirds supermajority vote of both chambers of our General Assembly to amend the DGCL.[86] Presumably, that requirement was put in place to deter hasty, reflexive changes not grounded in careful study. A process that is sound and transparent can go a long way in deflecting criticism from those who may have a different view about the substance.[87] Not everyone can have their way but a process that is fair and open makes it easier to accept the end product and move on.
On the judicial front, our Supreme Court has operated in a fairly transparent way. Nearly all our oral arguments have been livestreamed since 2016. Available data shows that our oral arguments have been watched by viewers in dozens of countries all over the world. The briefs relating to those arguments are available on our Court’s website to the public for free. Our Internal Operating Procedures are also available on our Court’s website. In addition, our Branches’ judicial officers frequently attend and participate in academic debates in many different public academic venues.
A fourth lesson we have learned from our centuries of experience is that our changing environment may necessitate a course correction or recalibration along the way. If we are to remain nimble and capable of adapting to a changing environment, we must be able to effectuate needed changes. As I have mentioned, our Corporate Law Council and General Assembly have initiated several reforms recently, as the S.B. 21 amendments and the 2024 amendments illustrate. And this legislative involvement is not new. Other statutory changes including, 8 Del. C. § 102(b)(7), were quickly enacted following certain decisions including Smith v. Van Gorkom.[88]
A fifth lesson we can derive from our past, and which takes me again to my Artemis II example, is the importance of a top-notch “crew.” The Artemis II crew defines modern teamwork, deep trust, vulnerability and shared purpose. Our “crew” in our corporate governance context consists of our judicial officers, our court staff and security (Capitol Police), members of our General Assembly, corporate Bar, Secretary of State’s office and all others who play an integral role in making our system function. As a central fulcrum of this structure, Delaware needs a well-trained, hard-working capable judiciary that inspires confidence in those who participate in our judicial system.
In keeping with my Artemis II example of excellence, I note that the crew named their spaceship, “Integrity.” They highlighted that their success was not just technical, but rather, was rooted in trusting, honest and accountable relationships. As judicial officers and lawyers, we must always remain accountable to the people we serve and to each other to uphold the high ideals of the profession. This is a comment I have made to our Bar’s new admittees in every Pre-Admission speech I have given over the last twelve years. Reputation is a lawyer’s most valuable asset. Delaware must continue to adhere to the high ideals that are essential in inspiring trust and confidence in the people and clients we all serve.
A corollary to my fifth lesson about integrity is that hard work and humility go a long way. How we treat people who use our judicial system matters. Having litigated all over the country before I became a Justice, I had quite a variety of litigation experiences in many different courts. Most of the time, I felt that I was treated fairly. Even if we did not achieve quite the result we were seeking, we could accept it and move on if we felt we had been heard, understood and treated with respect. I remember the one or two times when I felt that was not the case and those experiences still burn in my memory. It comes down to the foundational principal that human connections matter and how we treat each other matters. One of the Artemis II astronauts said it succinctly: high-stakes success requires human connection.[89] This point, for all of the mind-blowing new AI technology now being developed, brings us back to the earthly point that human connections matter, they define even modern teamwork, and must be held together by trust and integrity. There may be many things we cannot control, but we can control how we treat each other and those who come before us and with whom we interact within our system of justice.
I have tried to constantly remind myself over the last twelve years that words are very powerful – especially words written indelibly in judicial opinions. Words can build up and they can tear down. Restraint and great care must always be exercised in how we describe people and events. Colorful, sensational and purely extraneous words that may be nothing more than attention-getters should be avoided by those charged with the administration of justice. I say these things not so much because I am concerned that our system is not working as it should, but more, to emphasize the things that I think are essential to its continued success.
III. Launchpads
Having thought about our Delaware history and legacy of corporate law and about the lessons we have learned collectively based on over two centuries of experience, where do we go from here? And how best do we prepare for the future?
In keeping with my Artemis II analogy, we can think of ourselves as being fortunate to have already built and tested our launchpad. What exactly are some of the components of a launchpad? One is a central launch, solid, perhaps concrete platform. Second is a service structure (a launch umbilical tower) equipped with cables and tubes that supply the rocket with electrical energy, communications, propellants, and pressurized gases. Third is an infrastructure system. Fourth, flame trenches, fire-shields, and lightning arresters are critical in putting out fires. Fifth is a control center and telemetry system or a data collection system used to retrieve and analyze information and to gain insight into a system’s performance. Now let’s analogize a NASA-type launchpad to our situation.
If a “launchpad” is a platform, or a starting point for growth and new initiatives, we have built a stable and well-tested platform. Here in Delaware, we have an amazing legacy – a foundation, built upon over 230 years of experience of testing, of trial and error, of navigating new territory, course correcting when necessary. This puts us far ahead of the pack. One’s first mission cannot be flying around the Moon. It takes decades of study, trial and error, test-runs and hard work to even get to the launchpad. Anyone who attempts to launch a space capsule without the painstaking work of trial and error over time could be destined for failure or disaster. But we know that our Delaware platform has been studied by many other jurisdictions – including even some foreign ones – who have benefitted from our experience which we have gladly shared with them. In its May 26, 2026 edition, the Chancery Daily, in commenting on Texas Senate Bill 29, for example, referred to the “Delaware-shaped elephant in the room.” [90]
We have a service structure with a Bar that is well-seasoned in representing corporate clients. We have a Secretary of State’s office that is run with its corporate constituencies’ interests in mind. We have a vastly capable “crew” of seasoned judicial officers who have developed the necessary expertise to adjudicate a wide-ranging array of corporate cases. We don’t have fire-shields and lightning arresters but a thick-skin can go a long way in this current environment. As for a telemetry system, we have a very active and engaged corporate Bar, an engaged Corporation Law Council, and an attentive Secretary of State’s office. In addition, our judicial officers have been willing to engage in academic discussions, continuing legal education programs and bar-related activities on corporate law topics of interest. Our Bench and Bar has long-valued this tradition.
This amazing platform, combined with the lessons over 230 years of experience has brought us, is a formidable launchpad. In commenting on what was next regarding Artemis moon missions, NASA Administrator, Jared Isaacman observed that “[w]ith Artemis II complete, focus now turns confidently toward assembling Artemis III and preparing to return to the lunar surface, build the base, and never give up the moon again[.]”[91] He added that Artemis III, slated for a 2027 launch, will send another spacecraft to Earth’s orbit, where they will dock with at least one commercial lunar lander.”[92] Mr. Isaacman’s words are good advice which I echo here – work hard, continue to build the base, and never give up the moon.
Where we go on our journey next in Delaware will be up to others as I exit my judicial platform. Soon a new “crew” member will be on board at our Supreme Court. The Court will confidently move forward adding to its carefully constructed platform of case law.
As for me, I think of how astronaut Jeremy Hanson described his experience. He said, “[w]hat you saw was a group of people who loved contributing, having meaningful contribution and extracting joy out of that.”[93] That describes my experience as well. My ship is about to dock. But just as there will be an Artemis III, I am planning a third phase of my professional life. So, I am definitely not going to vanish into outer-space. I can only say that for me, the past twelve years has been a journey of a lifetime.
I thank you for your kind attention and for the opportunity to serve the State of Delaware in the cause of justice.
1 Desiree Anello, Artemis II Astronaut Christina Koch Shares an Inspiring Message for Earth After Her Historic Flight, PEOPLE (Apr. 12, 2026, at 12:42 ET), https://people.com/artemis-ii-astronaut-christina-koch-message-for-earth-after-historic-flight-11948205 (“‘A crew is a group that is in it all the time, no matter what, that is stroking together every minute with the same purpose, that is willing to sacrifice silently for each other, that gives grace, that holds accountable,’ the astronaut said.”); id. (“A crew has the same cares and the same needs, and a crew is inescapably, beautifully, dutifully linked[].”); Jeanine Santucci & Mike Snider, Artemis II crew back on Earth. Crew speaks out at welcome home event, USA TODAY (Apr. 11, 2026, updated Apr. 12, 2026, at 1:29 ET), https://www.msn.com/en-us/news/us/artemis-ii-crew-back-on-earth-crew-speaks-out-at-welcome-home-event/ar-AA20FYGF (“What you saw was a group of people who loved contributing, having meaningful contribution and extracting joy out of that[.]”).(go back)
2 Perhaps this harkens back to my five “p’s” in my address, “Creating Common Law in the Corporate Context, Delaware Style,” delivered on April 7, 2022 at the University of Pennsylvania Carey Law School as part of the Institute of Law and Economics’ Distinguished Jurist Lecture Series. See Karen Lynn Valihura, Creating Common Law in the Corporate Context, Delaware Style, 25 U. Pa. J. Bus. L. 1 (2023). There I referred to Purpose, Practicality, Precedent (and listed Predictability as a strong corollary to Precedent), Public Policy and Procedural Principles/Judicial Perimeters.(go back)
3 See THE FEDERALIST NO. 78, at *2–3 (Alexander Hamilton) (McLean’s ed., 1788), available at 1788 WL 492.(go back)
4 Marbury v. Madison, 5 U.S. 137, 177 (1803).(go back)
5 See Dairyland Greyhound Park, Inc. v. Doyle, 719 N.W.2d 408, 489 (Wis. 2006) (Roggensack, J., concurring in part and dissenting in part) (“Judicial independence requires a high level of judicial integrity and courage to make the ‘tough decisions,’ without being affected by political favors or reprisals.”).(go back)
6 See Hamilton, supra note 3, at *4.(go back)
7 See id. at *5.(go back)
8 87 A.2d 862, aff’d, 91 A.2d 137 (Del. 1952), aff’d sub nom., Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955).(go back)
9 Id. at 865.(go back)
10 473 A.2d 805 (Del. 1984), overruled in part by Brehm v. Eisner, 746 A.2d 244 (Del. 2000).(go back)
11 5 A.2d 503 (Del. 1939).(go back)
12 285 A.2d 437 (Del. 1971).(go back)
13 457 A.2d 701 (Del. 1983).(go back)
14 634 A.2d 345 (Del. 1993), decision modified in part on reargument, 636 A.2d 956 (Del. 1994).(go back)
15 Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 957 (Del. 1985).(go back)
16 Id. at 955.(go back)
17 Id.(go back)
18 506 A.2d 173 (Del. 1986).(go back)
19 500 A.2d 1346 (Del. 1985).(go back)
20 564 A.2d 651 (Del. Ch. 1988).(go back)
21 571 A.2d 1140 (Del. 1989).(go back)
22 637 A.2d 34 (Del. 1994).(go back)
23 651 A.2d 1361 (Del. 1995).(go back)
24 721 A.2d 1281 (Del. 1998).(go back)
25 457 A.2d 701 (Del. 1983).(go back)
26 906 A.2d 27 (Del. 2006).(go back)
27 911 A.2d 362 (Del. 2006).(go back)
28 488 A.2d 858 (Del. 1985).(go back)
29 818 A.2d 914 (Del. 2003).(go back)
30 88 A.3d 635 (Del. 2014), overruled in part by, Flood v. Synutra Int’l., Inc., 195 A.3d 754
2018). (go back)
31 125 A.3d 304 (Del. 2015).(go back)
32 129 A.3d 816 (Del. 2015).(go back)
33 332 A.3d 349 (Del. 2024).(go back)
34 342 A.3d 324 (Del. 2025).(go back)
35 152 A.3d 124 (Del. 2016).(go back)
36 124 A.3d 1017 (Del. 2015).(go back)
37 212 A.3d 805 (Del. 2019).(go back)
38 227 A.3d 102 (Del. 2020).(go back)
39 261 A.3d 1199 (Del. 2021).(go back)
40 261 A.3d 1251 (Del. 2021).(go back)
41 262 A.3d 1034 (Del. 2021).(go back)
42 298 A.3d 667 (Del. 2023).(go back)
43 300 A.3d 656 (Del. 2023).(go back)
44 337 A.3d 1215 (Del. 2024).(go back)
45 315 A.3d 446 (Del. 2024).(go back)
46 326 A.3d 686 (Del. 2024).(go back)
47 339 A.3d 705 (Del. 2025).(go back)
48 351 A.3d 1005, 2025 WL 3689114 (Del. Dec. 19, 2025) (TABLE).(go back)
49 352 A.3d 229 (Del. 2026).(go back)
50 2026 WL 184868 (Del. Jan. 20, 2026).(go back)
51 2026 WL 548504 (Del. Feb. 27, 2026).(go back)
52 Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 957 (Del. 1985) (emphasis added); Moran v. Household Intern., Inc., 500 A.2d 1346, 1351 (Del. 1985) (same, quoting Unocal, 493 A.2d at 957); Coster v. UIP Cos., Inc., 300 A.3d 656, 672 (Del. 2023) (same, quoting Unocal, 493 A.2d at
957).(go back)
53 DELAWARE COURT OF CHANCERY, Delaware Court of Chancery Guidelines on Attorney Civility, 4 (May 12, 2026), https://courts.delaware.gov/forms/download.aspx?id=328668.(go back)
54 Id.(go back)
55 Id.(go back)
56 Michael B. Gonen, Esquire, Delaware Supreme Court Confirms Facial Constitutionality of Fiduciary Safe Harbors in DGCL Overhaul (May 7, 2026), https://www.law.com/delbizcourt/2026/04/29/delaware-supreme-court-confirms-facial-constitutionality-of-fiduciary-safe-harbors-in-dgcl-overhaul/?slreturn=20260508084532.(go back)
57 Maffei v. Palkon (TripAdvisor), 339 A.3d 705, 741–42 (Del. 2025).(go back)
58 481 U.S. 69, 89 (1987) (“No principle of corporation law and practice is more firmly established than a State’s authority to regulate domestic corporations, including the authority to define the voting rights of shareholders.”); see also Burks v. Lasker, 441 U.S. 471, 478 (1979) (“As we have said in the past, the first place one must look to determine the powers of corporate directors is in the relevant State’s corporation law. ‘Corporations are creatures of state law,’[] and it is state law which is the font of corporate directors’ powers.”); McDermott Inc. v. Lewis, 531 A.2d 206, 215 (Del. 1987) (“The internal affairs doctrine requires that the law of the state of incorporation should determine issues relating to internal corporate affairs.”).(go back)
59 Leo E. Strine, Jr., The Delaware Way: How We Do Corporate Law and Some of the New Challenges We (and Europe) Face, 30 Del. J. Corp. L. 673, 675 (2005) (“The central idea of Delaware’s approach to corporate law is the social utility of an active, engaged central management.”).(go back)
60 See, e.g., In re Fox Corp./Snap Inc., 312 A.3d 636, 638 (Del. 2024), as revised (Jan. 25, 2024) (addressing the Class A Stockholders’ claim that stockholders have three fundamental “powers” – to vote, sell, and sue, and holding that “[t]he ability to sue directors or officers for duty of care violations is an attribute of the Companies’ stock, but not a power, preference or separate right of the Class A common stock under Section 242(b)(2).”).(go back)
61 Strine, supra note 60, at 675–76.(go back)
62 Id. at 676, 682 (stating that the Court of Chancery “produced predictable, efficient results that balanced the needs of managers for flexibility and consistency with those of stockholders in policing self-dealing and managerial sloth[]”); see also Stephen M. Bainbridge, Advanced Corporate Law: A Practical Approach to Corporate Governance, 5–6 (Foundation Press Second Edition 2025) (stating that shareholders “are entitled to approve or disapprove only a very few board actions[]” while the board effectively controls the day-to-day operations and long-term policies of the firm).(go back)
63 Strine, supra note 60, at 684.(go back)
64 See Manti Hldgs., LLC v. Authentix Acquisition Co., Inc., 261 A.3d 1199, 1250 (Del. 2021) (Valihura, J. dissenting) (“Our DGCL is routinely revised and updated through the work of the Corporation Law Council of the Corporation Law Section of the Delaware State Bar Association and the General Assembly.”).(go back)
65 See, e.g., William L. Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 YaleL. J. 663, 684 (1974) (“Perhaps there is no public policy left in Delaware corporate law except the objective of raising revenue.”); Byron F. Egan & Curtis W. Huff, Choice of State of Incorporation-Texas Versus Delaware: Is It Now Time to Rethink Traditional Notions?, 54 SMU L. Rev. 249, 252 (2001) (“[T]he historical Delaware approach of relying on judicial interpretation to resolve many issues has in recent years created more uncertainties than it has resolved.”); Robert B. Thompson, Delaware, the Feds, and the Stock Exchange: Challenges to the First State As First in Corporate Law, 29 Del. J. Corp. L. 779, 801 (2004) (“Delaware’s General Corporation Law, the linchpin of state law, is fraying around the edge. Its 1967 revision commanded the attention of the most knowledgeable group of Delaware lawyers and received the admiration of successive members of the Delaware bar committee and the legislative committees, yet much has changed since the mid 1960s. Given the evolving nature of corporate law, many points lying at the core of corporate governance are not covered in the current statute[.]”); Ann M. Scarlett, Confusion and Unpredictability in Shareholder Derivative Litigation: The Delaware Courts’ Response to Recent Corporate Scandals, 60 Fla. L. Rev. 589, 640 (2008) (“In response to recent corporate scandals, the Delaware courts unnecessarily injected doctrinal confusion and unpredictability into shareholder derivative litigation. The courts are allowing more cases to survive pretrial motions asserting the business judgment rule defense without stating any new standards. Instead, the courts are exploiting the disparity they previously created between the standards of conduct for directors’ fiduciary duties and the standards of liability applied for assessing alleged breaches of those duties.”); Lynn M. LoPucki, Corporate Charter Competition, 102 Minn. L. Rev. 2101, 2103 (2018) (“Over the past sixteen years, the Delaware Chancery Court has struggled to attract cases and, as a result, some believe that Delaware’s strategy has begun to unravel. The unraveling reveals a potentially fatal contradiction. Delaware’s judicial strategy requires that the state attract both incorporations and litigation. But the interests of the plaintiffs’ attorneys who choose venue for shareholder litigation are directly opposed to the interests of the managers who choose states of incorporation. Plaintiffs’ attorneys want to maximize shareholder litigation and the associated attorneys’ fees, while the managers want to minimize them. Delaware has only recently recognized that it cannot appeal to both.”); Id. at 2108 (“The shift to arbitration of shareholder litigation that is already in progress may strip Delaware of its competitive advantage and end its dominance.”). (go back)
66 Jack B. Jacobs, Fifty Years of Corporate Law Evolution: A Delaware Judge’s Retrospective, 5 Harv. Bus. L. Rev. 141, 143 (2015).(go back)
67 Id. (go back)
68 In re Trulia, Inc. S’holder Litig., 129 A.3d 884, 898 (2016), (stating that “practitioners should expect that disclosure settlements are likely to be met with continued disfavor in the future unless the supplemental disclosures address a plainly material misrepresentation or omission, and the subject matter of the proposed release is narrowly circumscribed to encompass nothing more than disclosure claims and fiduciary duty claims concerning the sale process, if the record shows that such claims have been investigated sufficiently[]”).(go back)
69 Press Release, Office of the Governor, Governor Meyer Signs SB21 Strengthening Delaware Corporate Law (Mar. 26, 2025), https://news.delaware.gov/2025/03/26/governor-meyer-signs-sb21-strengthening-delaware-corporate-law/.(go back)
70 See, e.g., Alicia Bannon, Rethinking Judicial Selection in State Courts, Brennan Center for Justice, (June 6, 2016), https://www.brennancenter.org/sites/default/files/publications/Rethinking_Judicial_Selection_State_Courts.pdf (arguing that politicized judicial selection systems undermine the fairness and integrity of state courts); Richard L. Hasen, The Supreme Court’s Pro-Partisanship Turn, 109 Geo. L.J. Online 50 (2020), (arguing that the United States Supreme Court’s conservative majority has developed doctrinal tools to aid in Republican entrenchment and insulate political actors from competition.); William W. Taylor III, How the Supreme Court is Destroying Its Own Legitimacy, Alliance for Justice, (Jan. 25, 2023), https://afj.org/article/how-the-supreme-court-is-destroying-its-own-legitimacy/ (asserting that the United States Supreme Court has faced substantial criticism and disapproval based on its perceived political nature); Matthew Levendusky et al., Has The Supreme Court Become Just Another Political Branch? Public Perceptions of Court Approval and Legitimacy in A Post-Dobbs World, Science Advances, at 1 (Mar. 8, 2024), https://www.science.org/doi/epdf/10.1126/sciadv.adk9590 (asserting that formerly bipartisan public perception of the non-political nature, trust, legitimacy, and integrity of the Supreme Court has “evaporated” along partisan lines since 2020). (go back)
71 Adams v. Governor of Delaware, 922 F.3d 166, 169 (3d Cir. 2019), vacated and remanded on other grounds sub nom., Carney v. Adams, 592 U.S. 53 (2020).(go back)
72 DEL. CONST. art. IV § 3.(go back)
73 Governor, 922 F.3d at 170.(go back)
74 David C. McBride et al., Are Delaware’s Judicial Political Balance Requirements Constitutional? Stay Tuned for the Third Circuit Decision in Adams v. Carney, Young Conaway, (November 27, 2018), https://www.youngconaway.com/publications/ar e-delawares-judicial-political-balance-requirements-constitutional-stay-tuned-for-the-third-circuit-decision-in-adams-v-carney/.(go back)
75 Governor, 922 F.3d at 184–85 (holding Article IV § 3 to be unconstitutional).(go back)
76 227 A.3d 102, 116 (Del. 2020).(go back)
77 Id. (quotations and citations omitted).(go back)
78 Id. (quotations and citations omitted).(go back)
79 See, e.g., Beam v. Stewart, 845 A.2d 1040, 1055 (Del. 2004) (In the demand-excusal context, “the board is presumed to be independent[.]”); In re Oracle Corp. Deriv. Litig., 2022 WL 3136601, at *8 (Del. Ch. May 20, 2022) (“Directors are presumed to be independent.”); In re KKR Fin. Hldgs. LLC S’holder Litig., 101 A.3d 980, 995 (Del. Ch. 2014) (“Delaware law presumes the independence of corporate directors.”), aff’d sub nom., Corwin v. KKR Fin. Hldgs. LLC, 125 A.3d 304 (Del. 2015); In re MFW S’holders Litig., 67 A.3d 496, 509 (Del. Ch. 2013) (“Under Delaware law, there is a presumption that directors are independent.”), aff’d sub nom., Kahn v. M & F Worldwide Corp., 88 A.3d 635 (Del. 2014).(go back)
80 8 Del. C. § 141(a).(go back)
81 Strine, supra note 60, at 677.(go back)
82 In re Tesla Motors, Inc. S’holder Litig., 298 A.3d 667, 708 (Del. 2023) (“In other words, our decisions — which we continue to adhere to — have established a ‘best practices’ pathway that, if followed, allow for conflicted transactions, such as the Acquisition, to avoid entire fairness review.”); see also Americas Mining Corp. v. Theriault, 51 A.3d 1213, 1244 (Del. 2012) (“Therefore, the proponents of an interested transaction will continue to be incentivized to put a fair dealing process in place that promotes judicial confidence in the entire fairness of the transaction price.”). (go back)
83 In re Tesla Motors, 298 A.3d at 701–02 (stating that “[d]eal mechanisms commonly employed to replicate arm’s-length negotiating include the use of a special committee and a majority-of-the-minority voting provision for stockholder approval[]”); see also Americas Mining Corp., 51 A.3d at 1244 (“A fair process usually results in a fair price.”); Basho Techs. Holdco B, LLC v. Georgetown Basho Invs., LLC, No. 11802, 2018 WL 3326693, at *37 (Del. Ch. July 6, 2018) (“The range of fairness has most salience when the controller has established a process that simulates arm’s-length bargaining, supported by appropriate procedural protections. A strong record of fair dealing can influence the fair price inquiry and lead to a conclusion that the price was fair.”), aff’d sub nom., Davenport v. Basho Techs. Holdco B, LLC, 221 A.3d 100 (Del. 2019); Van de Walle v. Unimation, Inc., No. 7046, 1991 WL 29303, at *17 (Del. Ch. Mar. 7, 1991) (“The fact that a transaction price was forged in the crucible of objective market reality (as distinguished from the unavoidably subjective thought process of a valuation expert) is viewed as strong evidence that the price is fair.”).(go back)
84 The Honorable Karen L. Valihura, Lecture, 23 Fordham J. Corp. & Fin. L. 5, 5–6 (2017).(go back)
85 Strine, supra note 60, at 679.(go back)
86 DEL. CONST. art. IX, § 1 (“No general incorporation law, nor any special act of incorporation, shall be enacted without the concurrence of two-thirds of all the members elected to each House of the General Assembly.”); see also Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 354 (Del. 2022) (“Promoting stability in our DGCL is and remains of paramount importance.”).(go back)
87 “Proxy” is shorthand for clear and complete and accurate disclosure. We see this concept throughout our law. Corporate cleansing mechanisms that rely on a shareholder vote are only effective if the disclosures surrounding that vote comply with the law. This is what I mean by transparency in the process.(go back)
88 488 A.2d 858 (Del. 1985).(go back)
89 Lauren Rosenblatt, Sen. Cantwell Talks ‘Human Connection’ With Artemis II Astronauts, The Chronicle (Apr. 10, 2026, at 3:14 ET), https://www.chronline.com/stories/sen-cantwell-talks-human-connection-with-artemis-ii-astronauts,400063 (“[S]pace travel needs ‘that human connection.’”).(go back)
90 See, e.g., CHANCERY DAILY (May 26, 2026) (reporting on Texas Senate Bill 29 and observing “the political desire for Texas to be creating its law from whole cloth, while the Delaware-shaped elephant in the room (about which no director of a Texas company is statutorily required to think) is 200+ years of highly developed case law on every important issue in the corporate issue in the corporate law canon[]”).(go back)
91 Jeanine Santucci & Mike Snider, supra note 1.(go back)
92 Id. (go back)
93 Id. (go back)
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