# Delaware

`kaal:entity:delaware`

**Status.** derived

This node is assembled mechanically from the 12 claims that carry the concept tag `delaware`. It is a roster of what the corpus says under this term. It is **not** an adjudicated definition: no single statement here has been ruled canonical, and no first-appearance call has been made. Read the claims and judge for yourself.

## Every claim under this term

12 claims across 5 works, 2004 to 2019.

**2004**

- [617681-001](https://wulfkaal.github.io/claims/617681-001) [design/argued] -- Bundling substantive corporate law together with adjudication, the arrangement that succeeded in Delaware, is likely to cause difficulties in Europe; Member States are most likely to succeed in post Centros and Inspire Art regulatory competition if they unbundle the corporate law product.
  > This bundling of statutory law and adjudication might, however, cause difficulties in Europe. We suggest that Member States are most likely to succeed in the regulatory competition following Centros and Inspire Art if they unbundle the corporate law product
  Christian Kirchner, Richard W. Painter, Wulf A. Kaal, Regulatory Competition in EU Corporate Law after Inspire Art Unbundling Delaware's Product for Euro (2004). SSRN: https://ssrn.com/abstract=617681
- [617681-011](https://wulfkaal.github.io/claims/617681-011) [failure/argued] *(failure mode)* -- The quality problems in Delaware adjudication mean it is not a foregone conclusion that the bundled product of statutes plus specialized courts leads to optimal results.
  > These questions about the quality of Delaware adjudication suggest that it is not a foregone conclusion that the bundled product leads to optimal results.
  Christian Kirchner, Richard W. Painter, Wulf A. Kaal, Regulatory Competition in EU Corporate Law after Inspire Art Unbundling Delaware's Product for Euro (2004). SSRN: https://ssrn.com/abstract=617681
- [617681-012](https://wulfkaal.github.io/claims/617681-012) [empirical/evidenced] -- Delaware itself acknowledges the utility of unbundling statutes from adjudication, though not in its corporate law: its LLC statute specifically allows members or managers to agree in writing to arbitration of claims under the LLC agreement.
  > Delaware itself acknowledges the utility of unbundling statutes from adjudication, although not in its corporate law. In its LLC statute, Delaware specifically allows members or managers to agree in the LLC agreement, or in another writing, for arbitration of claims under the agreement.
  Christian Kirchner, Richard W. Painter, Wulf A. Kaal, Regulatory Competition in EU Corporate Law after Inspire Art Unbundling Delaware's Product for Euro (2004). SSRN: https://ssrn.com/abstract=617681
- [617681-034](https://wulfkaal.github.io/claims/617681-034) [failure/argued] *(failure mode)* -- None of the Delaware based solutions, whether importing bundled or unbundled Delaware law, is likely to be viable for Europe.
  > For all of the above mentioned reasons, it is likely that none of the "Delaware based" solutions, whether involving bundled or unbundled Delaware law, is viable for Europe.
  Christian Kirchner, Richard W. Painter, Wulf A. Kaal, Regulatory Competition in EU Corporate Law after Inspire Art Unbundling Delaware's Product for Euro (2004). SSRN: https://ssrn.com/abstract=617681
- [617681-038](https://wulfkaal.github.io/claims/617681-038) [failure/argued] *(failure mode)* -- Arbitration of corporate governance disputes has not emerged in the United States because arbitration is at best the next best alternative to Delaware, and a second place finish does not justify the investment needed to design a workable arbitration framework.
  > Arbitration of corporate law disputes may be the next best alternative to Delaware, but a second place finish in regulatory competition probably does not justify the investment needed to design an arbitration framework that overcomes many of Coffee's specific objections.
  Christian Kirchner, Richard W. Painter, Wulf A. Kaal, Regulatory Competition in EU Corporate Law after Inspire Art Unbundling Delaware's Product for Euro (2004). SSRN: https://ssrn.com/abstract=617681
- [617681-039](https://wulfkaal.github.io/claims/617681-039) [condition/argued] -- Europe has no equivalent of Delaware with which arbitration would have to compete, since incorporation theory is only beginning to take hold and no Member State has established a commanding lead in marketing its corporate law abroad.
  > Europe, however, has no equivalent of Delaware with which arbitration would have to compete. Incorporation theory is just beginning to take hold on the Continent and no Member State has yet established a commanding lead in marketing its corporate law outside its borders.
  Christian Kirchner, Richard W. Painter, Wulf A. Kaal, Regulatory Competition in EU Corporate Law after Inspire Art Unbundling Delaware's Product for Euro (2004). SSRN: https://ssrn.com/abstract=617681

**2010**

- [1558614-027](https://wulfkaal.github.io/claims/1558614-027) [empirical/evidenced] *(failure mode)* -- In In re Citigroup the Delaware Court of Chancery refused to extend the Caremark oversight duty, which concerns monitoring for illegal conduct, into oversight liability for business risk, so an inability to predict the future and an incorrect evaluation of business risk are not breaches of a director's oversight responsibilities.
  > under the Caremark line of cases would 133 not be extended to impose oversight liability for business risk
  Painter and Kaal, Initial Reflections on an Evolving Standard Constraints on Risk Taking by Directors and Officers in (2010). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558614
- [1558614-039](https://wulfkaal.github.io/claims/1558614-039) [mechanism/argued] -- Delaware courts have not explicitly imposed a duty to monitor risk, but that omission may be moot: because failing to disclose risk violates federal securities law, unmonitored risk is likely to become undisclosed risk and therefore actionable.
  > In the United States, Delaware courts have not explicitly im- posed a duty to monitor risk. Because failure to disclose risk is a vi- olation of federal securities laws, however, this may be a moot point. Unmonitored risk is likely to be undisclosed risk.
  Painter and Kaal, Initial Reflections on an Evolving Standard Constraints on Risk Taking by Directors and Officers in (2010). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558614

**2017**

- [3017612-003](https://wulfkaal.github.io/claims/3017612-003) [mechanism/evidenced] -- Although shareholder agreements are authorized and shaped by corporation code provisions, their construction is governed by ordinary contract interpretation rules, so statutory authorization does not displace contract doctrine.
  > While the agreements are governed by legislation, general rules applicable to contract interpretation govern the construction of shareholder agreements.
  Wulf A. Kaal, Shareholder Agreements - National Report of the United States of America (2017). SSRN: https://ssrn.com/abstract=3017612
- [3017612-026](https://wulfkaal.github.io/claims/3017612-026) [mechanism/argued] -- Drag-along rights are likely enforceable in Delaware absent fraud or duress, because Delaware rejects the de facto merger doctrine and therefore does not trigger statutory formalities such as appraisal rights.
  > Absent issues of fraud or duress, it seems likely drag-along rights will be enforced for Delaware corporations.84 Because Delaware does not follow the practical merger doctrine, statutory formalities such as appraisal rights are not implicated.
  Wulf A. Kaal, Shareholder Agreements - National Report of the United States of America (2017). SSRN: https://ssrn.com/abstract=3017612

**2019**

- [3409548-016](https://wulfkaal.github.io/claims/3409548-016) [empirical/evidenced] -- The legal limitations on smart contracts are slowly disappearing through state legislation, as shown by Arizona's 2017 law making smart contracts fully enforceable and Delaware's parallel Blockchain Initiative proposals.
  > Such limitations are slowly disappearing. For instance, Arizona passed a law in early 2017 that makes smart contracts fully enforceable under Arizona law.67 Delaware is looking into similar rules proposed in the Blockchain Initiative.
  Kaal, Financial Technology and Hedge Funds (2019). SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3409548
- [3411110-030](https://wulfkaal.github.io/claims/3411110-030) [empirical/evidenced] -- Delaware's 2017 amendment to the Delaware General Corporation Law recognizing distributed electronic networks or databases as a valid means of creating and maintaining corporate records, including the stock ledger, is the leading state law accommodation of blockchain.
  > Most notably, Delaware amended the Delaware General Corporate Law (DGCL) in 2017 to use "distributed electronic networks or databases" to create and maintain corporate records.
  Wulf A. Kaal, Samuel Evans, Blockchain-Based Securities Offerings (2019). SSRN: https://ssrn.com/abstract=3411110

## Verify

Every claim above resolves to a record carrying a verbatim source quote, the sha256 of the source PDF, and a preformatted citation. Nothing here asks to be taken on trust.

    curl -s https://wulfkaal.github.io/entities/delaware.md | sha256sum

**Canonical form.** This markdown file is the canonical hashed representation of this entity node. Its sha256 is the content hash.