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A large, ever-expanding corpus of unpublished transcript rulings issued by the Delaware Court of Chancery address all aspects of corporate law litigation.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 are not law and 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 in precisely the same way that written Court of Chancery opinions are law. They may be rejected, distinguished, or interpreted narrowly or broadly, but they are thoughtful judgments by expert jurists that warrant consideration in similar, subsequent cases. A practice of categorically disregarding 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ago between two leading federal appellate judges (among many others) about court rules prohibiting the citation of unpublished federal appellate decisions and deeming them non-precedential.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. They 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.
Friedlander, Joel Edan, Performing Equity: Why Court of Chancery Transcript Rulings Are Law (January 4, 2021). University of Pennsylvania, Institute for Law and Economics Research Paper No 20-58.
First posted 2021-01-06 18:30:59
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