13 Pages Posted: 12 Dec 2022
Date Written: December 8, 2022
This essay, prepared for a symposium honoring Chief Justice Leo Strine, explores how institutional capacity limits the Delaware courts’ role in the U.S. economy. A decision theoretic approach is employed to delineate the boundaries of that role, with particular attention paid to recent arguments that Delaware's Caremark doctrine should be extended to ESG concerns. The essay views muscular expansion of Caremark to encompass stakeholder interests as misguided without significant investments in institutional capacity.
Keywords: Delware courts, U.S. economy, corporate law, business law, litigation, private ordering, uncertainty
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