Performing Equity: Why Court of Chancery Transcript Rulings Are Law

72 Pages Posted: 6 Jan 2021 Last revised: 11 Jan 2021

Date Written: January 10, 2021

Abstract

A large, ever-expanding corpus of unpublished transcript rulings issued by the Delaware Court of Chancery address all aspects of corporate law litigation. Practitioners regularly cite them. Written decisions address them. Yet, the juridical status of these transcript rulings is unsettled. Several years ago, then-Chancellor Strine proclaimed that transcript rulings have no inhibiting effect on future decisions. In 2020, members of the Court issued written decisions describing in different ways how transcript rulings are of lesser status compared to written rulings.

In this essay I argue that transcript rulings should be considered law, just as written Court of Chancery opinions are law: they are thoughtful judgments by expert jurists that warrant consideration in similar, subsequent cases. Their status as law does not mean they must be followed. A future judge may reject or distinguish a transcript ruling or interpret it narrowly or broadly. A practice of categorically disregarding or demoting transcript rulings decreases judicial accountability, increases uncertainty, and diminishes a repository of judicial wisdom.

I approach this subject from three perspectives. In Part I, I discuss the background and import of three transcript rulings that gave rise to three of the recent written decisions questioning the precedential value of transcript rulings. In Part II, I discuss the implications of a heated debate two decades ago between two leading federal appellate judges (among many others) about court rules prohibiting the citation of unpublished federal appellate decisions and deeming them non-precedential. In Part III, I discuss four transcript rulings of Leo Strine denying motions to dismiss. These rulings are performances of equity that identify exceptions to rules and illustrate how transcript rulings add to our understanding about the breadth, vitality, slipperiness, and direction of black letter law.

Keywords: Delaware Court of Chancery, transcript rulings, oral decisions, precedents, sources of legal authority, judicial decision publication formats, judges, chancellors, motion practice

JEL Classification: G38, K22, K49

Suggested Citation

Friedlander, Joel Edan, Performing Equity: Why Court of Chancery Transcript Rulings Are Law (January 10, 2021). U of Penn, Inst for Law & Econ Research Paper No. 20-58, Available at SSRN: https://ssrn.com/abstract=3760722

Joel Edan Friedlander (Contact Author)

Friedlander & Gorris, P.A. ( email )

1201 N. Market Street, Suite 2200
Wilmington, DE 19801
United States
302-573-3502 (Phone)

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