Law Review Articles, the Delaware Courts, and Some "Guidance" on Bylaws (Part 1)
We have discussed before the unusual predilection of those on the Delaware courts to speak and write about topics that will invariably come before them.
The phenomena of providing "guidance" through mechanisms outside of the judicial process has been encouraged. See Myron Steele & J.W. Verret, "Delaware's Guidance: Ensuring Equity for the Modern Witenagemot, 2 Virginia Law & Business Review 189 (2007) ("The Delaware courts recognize the need to wait for a live controversy to resolve an issue definitively, but fortunately they also recognize that this does not mean that they cannot, or should not, use the attention paid to a published opinion to offer guidance on uncertain but vital areas of corporate law."). Moreover, the courts cite articles written by their bretheren as authority. (A post on the subject is here).
One very topical area under Delaware law has been the use of bylaws to affect judicial process. Forum selection bylaws and fee shifting bylaws are the two most notable examples. As it turns out, a Justice of the Delaware Supreme Court has just written a piece (based upon a speech) on this very topic. See Justice Ridgely, The Emerging Role of Bylaws in Corporate Governance. The article not only discusses bylaws in general but comments specifically on forum selection and fee shifting bylaws. We will see what Justice Ridgely has to say about these bylaws in the next post.