Delaware's Internal Point Of View Summary

Critique of “Delaware’s Internal Point of View” by Zachary Gubler This critique analyzes the academic Zachary Gubler’s forthcoming legal scholarship, “Delaware’s Internal Point of View.” This professorially written piece introduces the concept of a “Delaware Two-Step,” a seemingly compelling analytical framework elucidating a distinct pattern observed within the evolutionary trajectory of Delaware corporate law. To achieve this critique’s analytical objective, this criticism proceeds in three sections: (i) an examination of the historical context of Delaware law, (ii) Delaware legal entities’ treatment of fiduciary duties, and (iii) the context of Gubler’s legal argumentation. I. Contextualization: Examination of the Historical Context of Delaware

During this era of New Jersey’s stance against antitrust, Delaware, understanding the revenues it could realize from corporate charter filing fees, assumed its position as the mecca of incorporation and has remained this way. From an understanding of the historical impetus driving Delaware corporate law’s unique relationship with other states, my focus now shifts toward examining the judicial precedent referenced by Gubler. Building upon this understanding, we can examine Gubler’s amalgam of legal precedent and legislative developments that inform his two-step historical framework. This conflation influences Gubler’s interpretation and prompts the need for a nuanced consideration of the distinction between precedent and legislative history. By clarifying which pillar of government the obligatory expansion or remedial contraction originates from Gubler’s framework, we could capture a more comprehensive understanding of the complexities inherent in Delaware’s corporate law evolution.

Succeeding cases further refined the Revlon doctrine, explaining the circumstances triggering heightened scrutiny and the corresponding board responsibilities. Gubler then contends that Corwin et al. v. KKR mirrors the liability-reducing effect of 102(b)(7). Similarly, following the expansion of fiduciary duties articulated in Van Gorkom. Corwin represents a remedial contraction by eliminating personal liability for violating Revlon’s expanded duties, so long as there is an informed and uncoerced shareholder vote. In essence, Gubler’s meticulous examination of takeover duties, as evidenced in cases like Revlon and Corwin, further accentuates the existence of a two-step pattern in corporate fiduciary law development. c. Monitoring Duties Gubler then expands his theory to include monitoring duties, as evidenced by discourse about In re Caremark and Stone ex rel. AmSouth Bancorporation v. Ritter. Caremark represents an obligational expansion wherein boards are held to stringent standards of oversight and