I've just finished a short piece on Salzberg v. Sciabacucchi, (Del. Mar. 18, 2020), for the Washington Legal Foundation. Ann Lipton has written a lot on the issues involved and her initial blog post on the case is well worth reading. As somebody who is generally regarded as a nexus of contracts fellow, I was particularly struck by her discussion of the prominent ways in which corporate theory has featured in the litigation:
I think the contrast between the Supreme Court and Chancery decisions as a matter of corporate theory are quite striking. The Chancery decision is a fairly stark example of the concession theory of the corporation: Laster makes very clear that Delaware, as sovereign, is intimately involved in establishing corporations, designing their operations, and articulating their limits. The Supreme Court, by contrast, is a model of contracts theory; it treats the corporation as simply a private arrangement among its constituents, with few prohibitions on what that arrangement may entail. I have been thinking about designing a corporate theory seminar; if it comes to fruition, I’ll likely include excerpts of both opinions.
