Monday, October 17, 2016

Research and Writing Question of the Day . . . .

Assume a state trial court issues an opinion in a particular case and the case is not appealed.  Should a legal scholar using the opinion to support or refute a key point (in the text of a written work) characterize the weight or status of the opinion (e.g., noting that it is a trial court opinion and that is has not been appealed)?  Justify your answer.

If the trial court at issue is the Delaware Chancery Court and the opinion addresses matters under the Delaware General Corporation Law, does that alter your answer?  Why?  Why not?

I am having fun considering these issues today in connection with my work on a symposium paper.  I have not yet decided how to handle the specific matter that raises the questions.  Accordingly, it seemed like a good idea at this juncture to share my questions and seek collaboration in answering them . . . .

Corporate Governance, Corporations, Joan Heminway, Research/Scholarhip, Writing | Permalink


I see no reason not to use a case on point, but I would (as you suggest) make clear the source and weight of authority). In fact, assuming there aren’t better cases, I think you almost have to use it. It would make sense to note that the case is limited in scope for its application, but have any court, at any level, cover the issue, it seems to me, is more than mere speculation (even if you think the court got it wrong). If it’s a Delaware Chancery Court, I think it is even stronger reason to use it, as I think courts outside Delaware are more likely to be influenced by a single trial court on a DGCL matter than most other similarly situated trial courts. Maybe I am missing something, but I don’t have any concerns, and I can’t see a compelling reason not to use it, as long as the strength of the opinion is not overstated.

Posted by: Joshua Fershee | Oct 18, 2016 9:48:17 AM

Thanks for those thoughts, Josh. That's pretty much where I have ended up. But it's interesting that many others use this case (the name of which I may reveal in a subsequent post, but want to leave out, for now) as if it were Supreme Court precedent from the state--i.e., without noting its trial court opinion status . . . . So, I keep wondering whether I am missing something in thinking through my approach.

Thanks, again, for thoughtfully engaging the issues.

Posted by: joanheminway | Oct 18, 2016 9:56:51 AM

Thanks, Joan. Delaware is hard, but I can think of a few places that might happen. For example, for a case like eBay Domestic Holdings, Inc. v. Newmark, 16 A.3d 1 (Del. Ch. 2010), I absolutely think it matters that it is a trial court opinion, but that case has been cited regularly, and by people of significance. As long as the case is cited appropriately, I think it is fair to say that case is, at least currently, an accurate characterization of Delaware law. Consider that Chief Justice Strine wrote: “I view as a standard notion behind the business judgment rule, Chancellor Chandler rejected Jim and Craig’s argument. In so ruling, he stated, “’Directors for a for-profit Delaware corporation cannot deploy a rights plan to defend a business strategy that openly eschews stockholder wealth maximization—at least not consistently with the directors’ fiduciary duty under Delaware law.’” Leo Our Continuing Struggle with the Idea That For-Profit Corporations Seek Profit, Leo E. Strine, Jr., 47 WAKE FOREST L. REV. 135 (2012). And Chancellor Chandler is a pretty big deal, too. So, I think it matters where the case is from, but I can see why people would rely on it quite a bit, too. (Of course, I am some who has done so, at least when blogging.)

Posted by: Joshua Fershee | Oct 18, 2016 10:24:41 AM

It's been awhile since I did any academic writing, but I'd say that (1) you can cite the opinion, since it's governing law -- at least for now; and (2) the discussion is tendentious and even misleading unless you qualify the state of play. The latter point is a little like "duty of candor to the tribunal". Duty of candor to the reader, maybe.

Joshua Fershee makes a good point, that the identity of the court matters. Citing to an opinion from the Delaware Chancery Court is probably strong. Citing to an opinion from the Chancery Court for Sevier County, not so much.

Remember, too, that the Bluebook citation formats are structured precisely to force this kind of disclosure. The information's going to be there, if the technical editors for the journal do their jobs. That means, in turn, that the contrast between the proposition for which you're referencing the case in the body and the case's actual weight of authority will be visible, at least to anyone who reads the footnotes.

Final point: it also depends a little on the purpose for which you're using the case. If you're analyzing the court's logic, and suggesting that this method of analysis, or way of resolving a problem, is better than some alternative analysis, then you're citing the case for the purpose of breaking down the logic. That's different than citing this case X to establish proposition Y in case Z...

Posted by: David Morehous | Oct 18, 2016 11:09:18 AM

Thanks, David. You raise some nice points here. To clarify, I need to cite to and discuss the case. Others cite to it without noting its trial court status and point to it as leading law. It is a Delaware Chancery Court case. I am perplexed that more have not noted--in the text, as part of their analysis--its potentially discounted value because it is a trial court opinion (granted, from an expertized court).

Posted by: joanheminway | Oct 18, 2016 11:17:30 AM

I, too, am somewhat confused by the question. “It is axiomatic, … that once a trial judge decides an issue, other trial judges on that court are entitled to rely on that decision as stare decisis.” Gatz Props., LLC v. Auriga Capital Corp., 59 A.3d 1206, 1219 (Del. 2012). So, where the chancery court decides a question, that decision is law--with binding precedential value—unless and until the supreme court states otherwise. As David comments above, Bluebook’s required citation format will reveal to any interested reader that the citation is to a trial court opinion. Given that this information is disclosed to the reader in the citation, it seems unnecessary to go on and state the obvious (obvious to me, at least!)—that the precedent may be reversed or modified by the higher court. I suppose your question unsettles me a bit because in my scholarship I routinely cite chancery court precedent (including unpublished decisions and, occasionally, bench rulings!) without adding the caveat that I am citing a lower court opinion that may be revisited by the state’s supreme court. It goes without saying, I think.

Posted by: Mohsen Manesh | Oct 18, 2016 6:04:32 PM

Sorry to make you unsettled, Mohsen! That was not my intent. I do not have any qualms about citing to Chancery Court opinions in support of what the law is. And I will be doing so in this work. Certainly you are right about the state of the law articulated in a trial court opinion until that opinion is found wanting by a higher court.

My query comes from my own discomfort with the strength of state trial court authority. The general thought is that a trial court decision, unvetted on appeal, is less strong authority than a supreme court opinion on a significant point of law precisely because it can be revisited by the state supreme court more easily than supreme court precedent can be. I want to make that kind of a point in the essay I am working on. But I see few folks making that kind of point in their work (maybe for the reasons everyone is articulating here). I am not arguing that the opinion is not the current law. But I do want to note that placing too much weight on it, standing alone, is (together with other factors) evidence that it may be weaker authority than folks think. But maybe that's too obvious or the trial court status of the opinion is just not a significant enough point . . . .

Anyway, I am valuing the conversation. So, thanks. More thoughts are welcomed.

Posted by: joanheminway | Oct 18, 2016 6:52:47 PM

Josh, I just saw your second comment. Sorry for not visiting it earlier. You understand my query well. And you guessed the case I am writing about, too! :>) I guess we all have to tackle the eBay issue head-on somewhere, and I am doing so in an essay I am now writing.

I will let everyone know where I come out on this. But as I just wrote in my reply to Mohsen (and thanks for the cite on trial court precedent, Mohsen--forgot to give thanks in my reply), I see few folks raising the issue in their scholarly work. So, I automatically questioned my instincts (which were to note the issue in the text of the work). This has proven to be a valuable forum in which to work through my ideas.

And I appreciate your cite, too, btw. Very good use of that work.

Posted by: joanheminway | Oct 18, 2016 7:02:16 PM

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