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cONTENTS

EDITORS' NOTES

THE DRAMA OF JUDICIALBRANCH CHANGE IN

THIS CENTURY

Hon. E. Norman Veasey

CONTRIBUTORS' PAGE

10THE DELAWARE JUDICIARY

IN THE 20TH CENTURYH o n . M a u r i c e A. H a r t n e t t , III

1620TH CENTURY EVOLUTION

AND GROWTH OF DELAWARECORPORATION LAW

William T. Allen

22PICTURE THE DELAWARE BAR

IN THE 21ST CENTURY

Helen M. Richards

SPECIAL SECTION24

THE HAIR TONIC BOND

Irving Morris

32IN THE YEAR 2025: A "SNEAK

PREVIEW" OF THE FIRST STATEAND ITS LAWYERS

Vernon R. Proctor

DELAWARE LAWYER I

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DELAWARE LAWYERA publication of Delaware Bar Foundation

Volume 17, Number 43301 Lancaster Pike, Suite 5-CWilmington, Delaware 19805

BOARD OF EDITORSWilliam E. Wiggin, Chairman

Richard A. Levine, Managing EditorThomas L. Ambro

Lawrence S. DrexlerTeresa Cheek

Joel FriedlanderFrancis X. Gorman

Peter E. HessApril Caso Ishak

Hon. Jack B. JacobsDavid C. McBride

Susan F. PaikinKaren L. Pascale

Vernon R. ProctorElaine C. Reilly

Helen M. RichardsJeffrey M. Schlerf

Robert W. Whetzel

DELAWARE BAR FOUNDATIONBOARD OF DIRECTORS

Bruce M. Stargatt, ChairmanK Franklin Balotti

Hon. Randy J. HollandMichael J. Rich

Nicholas H. RodriguezHarvey Bernard Rubenstein

Calvin L. Scott, Jr.Barbara H. StrattonDonald J. Wolfe, Jr.

DELAWARE LAWYERAttention: Chairman, Board of Editors

c /o Today Media, Inc.Formerly Suburban Marketing Associates, Inc.

3301 Lancaster PikeSuite 5-C

Wilmington, Delaware 19805

Address changes, subscription orders,requests for information about advertising

should be directed to:

TODAY MEDIA, INC.

at the preceding addressTelephone inquiries to (302) 656-8440Editorial inquiries should be directed to:

Margaret Gilmour, Associate Editor(302) 656-8440

Delaware Lawyer is published by Delaware BarFoundation as part of its commitment to publishand distribute addresses, reports, treatises, andother literary works on legal subjects of generalinterest to Delaware judges, lawyers, and the com-munity at large. As it is one of the objectives ofDelaware Lawyer to be a forum for the free expres-sion and interchange of ideas, the opinions andpositions stated in signed material are those of theauthors and not, by the fact of publication, neces-sarily those of Delaware Bar Foundation orDelaware Lawyer. All manuscripts are carefully con-sidered by the Board of Editors. Material acceptedfor publication becomes the property of DelawareBar Foundation. Contributing authors are request-ed and expected to disclose any financial, economic,or professional interests or affiliations that may haveinfluenced positions taken or advocated in the arti-cles. That they have done so is an implied represen-tation by each author.

Copyright 1999Delaware Bar Foundation

All rights reserved, ISSN 0735-6595

2. WINTER

Rationally viewed, the year 2000 will not witness majorchanges from 1999. The "Y2K" problem is almost certainlyexaggerated. The United States will be governed by the samePresident and the same Congress. Automobiles for the modelyear 2001 (beginning in the fall of 2000) will generally look likethose of the model year 2000. The economy should tend to per-colate merrily along into the new year, barring natural catastro-phe or colossal human error. Viewed sensibly in the short term,nothing much will change.

Rightly or wrongly, however, years ending with "000" areassumed to be epochal, although there have been few such yearsin recorded human history. In assembling this issue with its dis-tinguished roster of authors, we have nevertheless adopted thatsomewhat arrogant assumption. To a person, the contributors tothis issue have written thought-provoking - and perhaps mostwelcomely, optimistic - articles that pay justifiable homage tothe past Century of Delaware law and lawyers, while offeringsome enlightened guidance for the future.

Chief Justice Veasey's analysis and review of the Delawarecourt system is both a tribute to a century of creative evolutionin our Bar and Bench and a call to action for the future. Hisambitious and multifaceted "action plan" is a daunting challengeto members of the Bar.

Justice Hartnett has provided an engaging and anecdotalreview of the Delaware judiciary from the vantage point of anexperienced jurist with a knack for storytelling and a keen senseof history. The wit, wisdom and plain hard work of Delawarejudges is nationally renowned, and that tradition should endure.

. Former Chancellor William Allen intertwines economic histo-ry, psychology and rapid technological change in presenting aseamless and cogent analysis of the principal developments ofcorporate law in the 20th Century. The result is reflective, highlynuanced and frankly inspirational.

Helen Richards, a newly-minted Family Court Commissionerand an experienced employment attorney, throws down thegauntlet to all of us with her compelling analysis of the progressof diversity in the Delaware Bar late in this Century and her esti-mation of the work remaining to be done in the next.

Irving Morris has contributed a piece regarding a landmarkcase in constitutional criminal law that was decided in Delaware'sown Federal District Court. Bill Wiggin's introduction describesthe article well.

Finally, we offer a blanket disclaimer in connection with the"time line" that appears at the back of the issue. Helen Winslowdid a magnificent job in assembling the first draft, and we editorshad the unenviable task of trying to whittle it down a bit due tospace constraints. The time line focuses on people rather than onevents, and the final selections were necessarily arbitrary, withsome bias toward "famous firsts." Our sins are of omission, not(we hope) of commission. Had we included the year of appoint-ment of every single Delaware judge, for example, the time linewould have required at least an additional page that we did nothave. We nevertheless hope that you find it, as well as the rest ofthe issue, both stimulating- and (dare we say it) entertaining.

Vernon R. Proctor

Thomas L. Ambro

Contributors

William T. Allen was the Chancellor of Delaware from 1985until 1997. He is now the Director of the New York UniversityCenter for Law and Business and is a professor of law and a pro-fessor of business at NYU. He is also of counsel to the New Yorklaw firm of Wachtell, Lipton, Rosen & Katz.

Maurice A. Hartnett, III is a Justice of the Delaware SupremeCourt, having assumed that position in April 1994. Prior to thisappointment, he was a Vice Chancellor on the Delaware Court ofChancery since November 1976. Justice Hartnett has been activein many organizations, including the National Conference ofCommissioners on Uniform State Laws (Member: 1961- ;Secretary: 1979-80; Member Executive Board: 1979-84;Division Chair: 1984-85), the American Law Institute, theDelaware Legislative Reference Bureau (Executive Director:1961-69) , and the Delaware Uniform Law Commission(Member: 1961-; Chair: 1966-).

Irving Morris is a past President of the Delaware State BarAssociation. With his colleagues at Morris and Morris inWilmington, he maintains a nationwide practice representingplaintiffs in corporate litigation.

Vernon R. Proctor is a director of The Bayard Firm inWilmington, where he practices corporate law and litigation. Heis a member of the Board of Editors of Delaware lawyer and, assuch, is a deservedly occasional contributor to this publication.

Helen M. Richards is a Commissioner of the Family Court of theState of Delaware in New Castle County. Formerly she was a work-ers' compensation hearing officer for Kent and Sussex Counties anda senior litigation associate at Richards, Layton & Finger.

E. Norman Veasey is Chief Justice of Delaware. He is currentlyserving as President of the Conference of Chief Justices, Chair ofthe Board of the National Center for State Courts and Chair ofthe ABA Special Committee on the Evaluation of the Rules ofProfessional Conduct ("Ethics 2000"). In 1982-83, he wasPresident of the Delaware State Bar Association. During 1992-93he was the Editor of Volume 48 of The Business Lawyer, thescholarly legal journal published by the Section of Business Lawof the American Bar Association, and during 1994-95 he wasChair of that Section.

DELAWARE LAWYER 3

Hon. E. Norman

THE DRAMA OF JUDICIALBRANCH CHANGE IN

THIS CENTURY

t began on the eve of the Twentieth Century when diedelegates to die Constitutional Convention met in Doverfrom late 1896 to mid-1897 and produced our currentConstitution. Those delegates were innovative and coura-geous, particularly in their vision on judicial selection anddie creation of a new corporate law framework, both ofwhich have combined to benefit Delaware beyond mea-sure. What has happened in die Delaware Judicial Branchin die Twentiedi Century has been dramatic.

Judicial Selection and theCorporation Law

In this century we have seen die transformation ofthe archaic Judicial Branch structure and judicial selec-

tion method that existed at die end of the Nineteenth Centuryto a modern judicial selection system which, togedier with amodern corporation law, propelled die Delaware bench andbar to international prominence. The result has been great ser-vice to our citizens and economic benefit to die State that isattributable to the worldwide respect for our Courts and ourBar, as well as for the legislative and executive branches.

For almost eight years, it has been my honor to serve asChief Justice of Delaware and as a member (now President)of the national Conference of Chief Justices. In that time Ihave had the opportunity to compare our judicial selectionsystem with those of the other 49 states. As we all know, theDelaware system provides for 12-year terms by gubernatorialappointment with Senate confirmation. But the feature ofDelaware's Constitution that mandates a bipartisan judiciaryappears to be unique in this Nation. This feature, combinedwith recent insistence by Delaware Governors on a biparti-

san Judicial Nominating Commission, has helped to ensuremerit selection. Without denigrating the quality of the judi-ciaries in odier states, I think many of my colleagues aroundthe country would agree that our system may well be themost stable in the Nation.

Delaware's experience has been that depoliticizing theJudiciary tends to attract to die Bench quality people whosefocus is likely to be on service and scholarship. This may wellbe die central reason why Delaware has attracted over 300,000corporations, including more dian half of die Fortune 500 andhalf of die New York Stock Exchange corporations. It has alsoattracted some of die finest lawyers in America to our Bar. Therole of the Judiciary complements die outstanding work of theBar, die General Assembly and die Secretary of State's office.

One needs no more impressive testimony to Delaware'spreeminence than die proxy statements of corporations seekingto reincorporate in Delaware. Here is a quote from a recentproxy statement tiiat is typical of what corporate managementtells its stockholders about Delaware:

The prominence and predictability of Delaware corporatelaw provide a reliable foundation on which die Company's[corporate] governance decisions can be based ... TheCompany believes tiiat shareholders will benefit from theresponsiveness of Delaware corporate law to their needsand to diose of [dieir corporation] ... [B]odi the legislatureand [the] courts in Delaware have demonstrated an abilityand a willingness to act quickly and effectively to meetchanging business needs. The Delaware courts have devel-oped considerable expertise in dealing with corporateissues, and a substantial body of case law has developedconstruing Delaware law... [Shareholders will benefit from

WINTER 1999/2000

the well- established principles ofcorporate governance.

The Court of Chanceryand the Supreme Court

The Court of Chancery began han-dling serious corporate litigation in thedecade from 1910 to 1920. Then andlater the Court developed its much-heralded international reputation. Asnoted in the companion article by mycolleague — Justice Maurice A.Hartnett, III, there has been a succes-sion of great Chancellors and ViceChancellors in the rich history of thatCourt that began in 1792. When wecelebrated the Court's Bicentennial in1992, we catalogued that magnificentsuccession in considerable detail.

Prior to 1951, the Chancellor was thehighest ranking judicial officer inDelaware. To be sure, there was aSupreme Court and a Chief Justice, butthe Supreme Court was comprised of the"leftover judges" — the judges who didnot decide the case below or who werenot otherwise disqualified. In 1951, large-ly due to the vision, effort and skill ofGovernor Elbert N. Carvel, the modern,separate Delaware Supreme Court wasconstitutionally established. At first it hadthree Justices, expanded to five in 1978.

The Court of Chancery today carriesout its great traditions with a succession ofoutstanding chancellors and vice chancel-lors. The work of the Court has changedover the years. In the era of the 1980s theCourt handled expertly the drama of thecorporate law evolution in adjudicatingthe fiduciary duties of directors in hostiletakeovers. Some hostile takeover litigationcontinues, but it has given way to newbusiness transactions and new judicialchallenges arising out of the changingmerger and acquisition environment. Theuse of new, alternative entities, such aslimited partnerships, limited liability com-panies and business trusts, is now givingrise to added judicial gloss by the Court ofChancery and the Supreme Court.

Over the past several years, the Courtof Chancery has handled about 500business cases every year, on average. Iuse die term "business cases" to includetypical corporate cases — derivative, classactions, injunctions, internal corporateaffairs, and the like. The term alsoincludes cases relating to contractual dis-putes and the new, alternative entities.Business cases constitute about 75% ofdie Chancery docket. That is a stagger-ing caseload, considering the complexityand importance of diese cases, plus die

fact that the remaining 25% of theChancerydocket consists of otherimportant and urgent equity cases (e.g.,wills, trusts, injunctions, contract inter-pretation, right-to-die cases, governmentaffairs issues and many odiers) in whichdie judges of diat Court are also expert.

By contrast, only about 5% of theDelaware Supreme Court's docket con-sists of business cases on appeal from dieCourt of Chancery (though there areadditional business cases that come up onappeal from Superior Court). Many of thebusiness cases adjudicated by die SupremeCourt are of such precedential importancethat they may take as much as 20% of ourtime. The nearly 600-case per-year docketof the Supreme Court is one of generaljurisdiction (criminal cases, constitutional,business, tort, contract, family, FirstAmendment, prisoner cases, etc.). Thus,the Delaware Judiciary operates in amicrocosm of America as well as beingdie leader in business law adjudications.

The Delaware Courts' dispositionrate is remarkably prompt. For example,die Supreme Court averages only about30 days from die date of submission tothe date of disposition for all cases,diough some may take 60-90 days and afew take a little longer. As is well known,the Court of Chancery is famous forprompt dispositions and expedited cases.This applies to all our courts. InDelaware, promptness is a hallmark ofour Judiciary.

I believe diere are seven key obliga-tions that courts must honor, and diis isour goal in Delaware:

(1) Be clear;(2) Be prompt;(3) Be balanced;(4) Have a coherent, economic rationale;(5) Be intellectually honest;(6) Properly limit die function of die

court; and(7) Render decisions diat are stable in

die overall continuum.In recent years, at least, about 95%

of die business cases disposed of by dieCourt of Chancery are not appealed tothe Delaware Supreme Court. Thereare various reasons for that phe-nomenon (the changing dynamics ofindividual corporate transactions, satis-faction with the Chancery decision,delay, costs, settlement, etc.). About75% of die Chancery business cases diatare appealed are affirmed by theDelaware Supreme Court. In nearly halfof those that are affirmed, the affir-mance is substantially on the basis orrationale of the Chancery decisions.

Only about 15% are reversed outrightand about 10% are affirmed in part andreversed in part. When a Chancery deci-sion is reversed, it is often die result of anew approach to the law by theDelaware Supreme Court, or a decisionin a case of first impression. I see all thisas a tribute to the expert and promptwork of this very special trial court diathas had a consistently distinguishedrecord over its 207 year existence.

Superior Court,Family Court, Courtof Common Pleasand Justice of the

Peace CourtsIn my opinion, Delaware has die mostmodern business laws and die most effi-cient administration and adjudication ofdiose laws in die world. But our successin business law cannot be taken forgranted. Moreover, diat success must bereplicated in all that we do in theJudiciary. The Judicial Branch of govern-ment must strive for die best practices incase management as well as in judicialdecision making.

The accomplishments of die DelawareJudiciary extend far beyond die adjudica-tion of worldwide business disputes in dieCourt of Chancery and Supreme Court.The success of our Superior Court in han-dling drug cases and a calendar of com-plex, as well as high-profile, civil and crimi-nal cases is just one further example of theaccomplishments of the Delaware courts.It is important as well diat we respect andsupport the difficult and emotionallydraining work of the Family Court, so wellcarried out under extraordinarily stressfulconditions. The Court of Common Pleasand die Justice of die Peace Courts are thehigh-volume courts whose fair and effi-cient case management in an environmentof extraordinarily increasing caseloads andcomplexity deserve our continuing praiseand assistance.

The Superior Court has always beenthe bellwedier court of general jurisdic-tion in Delaware. Recent managementinnovations such as electronic filing,drug court, case management technolo-gy, arbitration, mediation, summary pro-cedures, videoconferencing, jury reformand odier advances have only added toits nationwide reputation for excellence.Criminal cases, including death cases,crowd its docket, complicate its ability tomove cases expeditiously and present diejudges of that court with vexing chal-lenges of meeting speedy trial and dispo-sition guidelines consistent widi quality

DELAWARE LAWYER 5

adjudication. The Court's jurisprudenceand case management in civil litigation isexemplary, with particular emphasis inthe late 1980s and the 1990s in the busi-nesslike handling of complex, nationalinsurance coverage litigation, duringwhich period the Court became anational innovator in electronic filing.

The Family Court of Delaware is aunified, statewide court that faces chal-lenges daily in handling its myriad anddiverse caseload in an astonishing vari-ety of subject areas, including termina-tion of parental rights, adoption,divorce, alimony, property division, cus-tody, visitation, protection from abuseof children and spouses, juvenile delin-quency and related family litigation.The vastness of the Court's jurisdictionis as extensive as any specialized court ofits kind in the Nation. The innovations ofthe Court in jurisprudence and case man-agement are extremely well respectednationally as it struggles to keep up withand manage fairly and expeditiously itscomplicated, ever-growing and emotion-ally-draining docket.

We have seen a modern resurgenceand continuing positive change in theCourt of Common Pleas and theJustice of the Peace Courts. Thesecourts are among the oldest and mostvenerable in Delaware history. Todaythey rank among the most efficientcourts in our system. They managesuch a high volume of criminal misde-meanor and limited jurisdiction civilcases that their accomplishments incase-processing and collections of fines,costs and restitution, together with fairprocedures to protect constitutionalrights, are among the most laudable ofour system, or any system.

We have seen over this century mod-ern structural changes in these courts.For example, the Court of CommonPleas has gone from a small county courtsystem to a well-managed, high volumestatewide court. Recently it absorbed theMunicipal Court of the City of Wilm-ington along with some of its judges andall of its cases. The Justice of the PeaceCourts have gone from home-grown ref-ereeing of small disputes to a smoothly-running engine under the capable lead-ership of a succession of highly profes-sional Chief Magistrates.

Court Administrationand Facilities

Administration, courthouses andcourt facilities for all the courts havedeveloped remarkably over this Century.

Today we have an Administrative Officeof the Courts to assist the Chief Justicein carrying out the administrative part ofthe job. That administrative side of theOffice of Chief Justice is described in theDelaware Constitution in this broadmandate of authority. "The Chief Justiceshall be administrative head of all thecourts in the State, and shall have gener-al administrative and supervisory powersover all the courts." The Chief Justiceusually takes a full adjudicatory caseloadas well, thus necessitating a professionaland efficient Administrative Office.

The Chief Justice and the Admini-strative Office have an onerous responsi-bility for systemwide planning and man-agement in such areas as: case manage-

Delaware's

experience has

been that

depoliticizing the

Judiciary tends

to attract to the

Bench quality

people whose

focus is HRely to

toe on service

and scholarship.

ment techniques; uniform technology;budget; legislative reform; expansion ofcourts; law reform; facilities; security;speedy trials; prompt judicial decisionmaking; court interpreters; gender, racialand ethnic fairness and the like. In 1992,shortly after my term commenced, theCommission on Courts 2000 was createdto study the future of the Judicial Branchand make recommendations. That Com-mission recommended a series of reformsthat are being implemented even as newcommittees and commissions come forthwith more specialized studies and innova-tions that are also currently being imple-mented. Diversity, efficiency and fairnessare the key ingredients.

By the advent of the new Millennium,

€> WINTER 1999/2000

we will have seen enormous change,including an entirely new world of tech-nology and court management protocols.In recent years, we have already seen dra-matic changes. The Delaware Judiciary issmall enough and good enough that itshould be "ahead of the curve" and anational leader in administration as wellas in jurisprudence. We are not there yet,but that is our goal. We must preparenow to address these objectives and notbe content with "business as usual" (as Iknow we are not).

Here are only a few of the major ini-tiatives that have been accomplished orare actively underway.

•Modern courthousesjnd courtfacilities in all three counties

• Systemwide technology improve-ments

•Expanding videoconferencingcapability

•Improved nationally-attractivebusiness court procedures

•Innovative drug courts•Electronic filing•Domestic violence initiatives•Truancy court in the Justice ofthe Peace Courts

•Enhancement of victims' rights•Improved security•Sophisticated strategic planning forall courts and the AdministrativeOffice of the Courts

•Rationalized personnel practices andadequate pay scales for all JudicialBranch personnel

•Development of modern and effi-cient internal operating proceduresfor all courts

•Automated sentencing and coordi-nated release date systems

•Disciplined examination of the needfor additional judicial officers

•Improved and businesslike centralcollection procedures

•Modernization of jury procedures•Procedural law reform•Streamlining the Arms of Court•Increased use of mediation and arbi-tration to resolve disputes andrelieve the increasing pressures onthe courts

•Proper representation for criminaldefendants and civil litigants

•Systematic assistance to the ever-increasing number of pro se litigants

• Public education to build trust andconfidence in the courts

•State-of-the-art judicial and stafftraining

•Delay reduction

•More sophisticated court interpret-ing programs

•Implementing the recommenda-tions of the Racial and EthnicFairness Task Force, the GenderFairness Task Force and the Com-mission on Courts 2000 and themany other committees, commis-sions and task forces that have assist-ed die courts.

New court facilities are becoming areality, and they are desperately need-ed. New courtroom facilities are beingundertaken in Kent and SussexCounties. Most dramatically, however,is the new New Castle County Court-house. The ground breaking in May ofthis year for the new Courthouse inWilmington marked another majordevelopment in our effort to improvethe administration of justice. It was along time in coming and required thecombined multi-year effort of manymembers of the Judiciary, the Bar, thebusiness community and the executiveand legislative branches of government.This facility, designed to house 52courtrooms and nearly 1,000 staff,should serve die public for decades in asafe and user-friendly environment thatwill allow our Judiciary to continue toearn the trust and confidence of ourcitizens. Our hope is that, in the pro-cess of designing this potentially superbCourthouse, we do not allow this greatopportunity to be squeezed by endingup with inadequate space, configura-tion or facilities.

Law and ProfessionalReform

Law reform and innovation goes for-ward in Delaware. Leaders of theDelaware Bar are in the forefront ofthese developments. The renewedemphasis on professionalism has madeDelaware a leader. The Delaware Bar isa great bar that has international respectfor competence, integrity, ethics andprofessionalism. But there remains aprofessionalism challenge we mustaddress at home and dirough which wemust continue to lead a national renais-sance. Concern over the state of thenational legal profession has beenexpressed in many ways over manyyears. Bar groups, citizens, judges,elected officials, authors and othershave bemoaned the lack of professional-ism that has befallen our profession andhave criticized the judiciary for con-tributing to the problem or for not

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doing enough about it.In the 1994 decision in Paramount v.

QVC, the Delaware Supreme Court, in anextensive addendum to an opinion in acomplex and expedited corporate takeovercase, rebuked as unacceptable the unpro-fessional conduct of a Texas lawyer whodisrupted a deposition being taken inTexas for that Delaware proceeding. Thatcase spells out the expectation thatDelaware Courts will not tolerate abusivelitigation tactics. This decision is but oneexample of appellate declarations that havestrengthened the hands of trial judgesaround the country to deal with unprofes-sional conduct in court and in depositions.

The Conference of Chief Justices hasheeded this call to action by commission-ing a study and developing a NationalAction Plan on Professionalism andlawyer competence. This Plan was adopt-ed by the Conference in January 1998,which urged its implementation by allstate supreme courts. The Plan containsover 100 separate recommendations toimprove professionalism, including lawschool responsibilities, bar exam subjects,disciplinary enforcement, "bridge thegap" programs, and strengthening trialcourt determination to stop unruly con-duct. Many of these recommendationshad already been adopted in Delaware,but more work remains.

Not only have we seen Delaware inthe forefront of professionalism, wehave also seen Delaware progressresponsibly from a poor record in thefirst half of the century in gender, racialand ethnic diversity in die Bar and theBench. We have achieved significant

•ogress in recent years, but we mustmtinue to build on and improve these

efforts. As we strive to improve diversityamong professionals, we must alsointensify our efforts to achieve fairness,equality, expedition and cost effective-ness in our handling of litigation inDelaware at all levels. Only in this waycan we reasonably expect to achievepublic trust and confidence.

* * * * *Excellence in judicial management

calls for vision, creativity and analysis inworking out ways to deal with theincreasing complexity of litigation (notmerely the increase in raw numbers ofcases). My objective is to devote theremainder of my term to ever-progres-sive administrative enhancement of theJudicial Branch as a whole while main-taining appropriate autonomy of trialcourts and improving the excellentquality of our judicial decisions and

8 WINTER 1999/2000

efficient case management.It is only when a court system is

functioning well, is understood andtrusted, that it will have the necessaryrespect of our citizens. Courts do nothave the taxing or law-making powersof the Legislative Branch or the policepowers of the Executive Branch. Courtsmust rely on the understanding, trustand confidence of their citizens. That,in turn, requires information, educationand being receptive to citizen input.

We must keep in mind the wisdom ofAlexander Hamilton, expressed morethan two centuries ago:

The ordinary administration of crimi-nal and civil justice contributes, morethan any other circumstance, toimpressing upon the minds of thepeople affection, esteem, and rever-ence toward the government.The principal goal of the Delaware

Judiciary is easily stated: we need tohave, for our individual and corporatecitizens, the most modern and busi-nesslike court system achievable, coupledwith old fashioned values of work ethic,integrity, fairness, efficiency, competenceand promptness. It is the right way to goto build public trust and confidence inthe Judiciary. •

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THE DELAWAREJUDICIARY IN

THE 20TH CENTURY

pace precludes a comprehensive treatment of thejudges who served Delaware so capably during the20th Century. But this article will refresh pleasantrecollections of some of those judges. A moredetailed view of die courts and judges of the 20thCentury appears in The Delaware Bar in theTwentieth Century, Helen L. Winslow, ed., TheDelaware State Bar Assn., Wilmington (1994).

In 1897, on the eve of the 20th Century, anew Constitution for the State was promulgatedby the Convention that drafted it. It abolishedthe terms of the judges that had been servingunder the Constitution of 1831 and it providedfor only six judges: the Chancellor, a position

initially created by the Constitution of 1792, and five SuperiorCourt judges — a Chief Justice, one resident judge from eachof the three counties of Delaware, and an "at large judge." Thesame six judges also constituted the Delaware Supreme Courtand heard appeals from the trial courts on which they sat untilthe separate Supreme Court was established in 1951. TheChancellor presided over the Supreme Court unless an appealwas from his decision. He was considered to be the highestjudicial officer in the State and received the highest salary. Thenumber of constitutional judges was not increased until 1949when the position of Vice Chancellor was created byConstitutional amendment. Since 1961 the Superior Court hasgradually been increased from five judges to nineteen judges.

Upon the Constitution of 1897 taking effect, the sittingChancellor, John R. Nicholson, of Dover, was reappointed, aswere Chief Justice Charles B. Lore and Associate SuperiorCourt Judge Ignatius C. Grub, both of Wilmington. The otherAssociate judges were not reappointed, however, and WilliamC. Spruance of New Casde County (who was an outspokenmember of the Constitutional Convention of 1897), JamesPennewill of Kent County and William H. Boyce of SussexCounty were appointed in their places. James Pennewill of

Dover, who was very popular with the Bench and Bar, becameChief Justice in 1909. He served until 1933 when he was suc-ceeded by Daniel J. Layton of Sussex County, who served until1945, when Charles Sudler Richards, also of Sussex County,became Chief Justice. Richards served as Chief Justice until1951 when the separate Supreme Court was created. He thenbecame the first President Judge of the Superior Court.

Richards, first appointed as an Associate Superior Courtjudge, served on the bench from 1929 until he retired in 1956.He never married, was quiet and self-effacing, and wasapproached with considerable trepidation by the youngermembers of the bar. His stern presence suffered no frivolity inthe courtroom. Many a lawyer's heart sank when JudgeRichards suddenly appeared on the bench on a Saturday morn-ing, the time for sentencing, instead of Judge Charles L. Terry.Judge Richards was known for his stiff sentences. Judge Terrywas the judge to have if there existed some valid mitigation.

In 1955 Judge Richards presided over the criminal jury trialof Bryant Bowles, who came to Delaware to form the NationalAssociation for Advancement of White People in response tothe efforts to integrate Milford High School. During a segrega-tion rally he held his young daughter up in the air and said "mydaughter never would attend school with Negroes as long asthere is gunpowder to burn — (prolonged applause) — andgunpowder to burn — I've been burned before and I'll beburned again." He was indicted for this and other strong state-ments. At his trial in Dover, the jury, after a very brief delibera-tion, returned a verdict of "not guilty." Many years later it waslearned that one of the jurors was a member of Bowles' organi-zation. The story of this unfortunate period appears in Ed Kee'sThe Brown Decision and Milford, Del., 27 Delaware History205-243, The Delaware Historical Society, Wilm. (1966-67).

Early in the Century all the judges were given complimenta-ry passes on the Delaware Railroad and, with a train passingthrough Dover every hour or so, had no difficulty in sitting inall three counties. In this way a visiting judge would spend die

10 WINTER 1999/2000

week in the county where he was sitting.It was customary for the lawyers (onboth sides of a case) and the judges togather for lunch in the same restaurant,and often at the same table. This tradi-tion continued in Dover until mid-cen-tury. The comraderie of die judges mayhave been one reason there were so fewreversals on appeal.

In Georgetown, at the beginning of acourt term, it was long a tradition for thebar to meet the incoming train fromWilmington or Dover and to walk withdie judges to the Court House.

The Constitution of 1897 containeda provision that was soon to have a greateffect on all the courts and the State. Itprovided for the creation of corporationsonly under general law rather than by aspecial act of die General Assembly. Thenew General Corporation Law wasenacted in 1899 just when many nation-al corporations were looking for a newsitus after becoming disenchanted with asimilar law of New Jersey.

The growdi of corporate litigation inthe Delaware Courts was slow but sure.The judges in Delaware had litde or noexperience in corporate law and therewere few precedents to guide them.Nevertheless, the equity and law judgessoon demonstrated dieir ability to craft amodern body of corporate law that, bythe middle of the 20th Century, hadbecome the national model.

The first Chancellor to bear the newresponsibilities was John R. Nicholson,who was first appointed in 1895 to suc-ceed James L. Wolcott, who served onlytwo years (1893-95) before returning tothe practice of law. (Wolcott in turn hadsucceeded Willard Saulsbury, who haddied in 1892. Saulsbury was a UnitedStates Senator during the Civil War,where he was a strong critic of PresidentLincoln. He had been elected to the U. S.Senate by the Delaware Senate over histwo brothers.) Chancellor Nicholsonwas born in Dover in 1849, graduatedfrom Yale College and Columbia LawSchool. He was reappointed Chancellorunder the new Constitution in 1897.To Charles Minot Curtis (1909-1921)fell the primary early responsibility ofdeveloping the Delaware GeneralCorporation Law. His well-reasoneddecisions set the stage for Delaware'seventually obtaining its preeminence asthe legal situs of many national corpora-tions. When his term expired in 1921,despite his excellent reputation and thebar's respect for him, die mild and unas-suming Governor William D. Denney

decided not to reappoint Curtis, a fellowRepublican. Rather, the Governorappointed Democrat Josiah OliverWolcott, who was then a United StatesSenator, having been die first popularlyelected Senator from Delaware.

The announcement was met witii dis-belief by the bar, but Governor Denneyinsisted on appointing Wolcott so that hecould replace him as Senator with T.Coleman du Pont, a prominent Re-publican, du Pont had paid for the con-struction of the du Pont Highway fromSelbyville to Wilmington and had sup-plied the finances needed to defeat theattempt of John Edward Addicks and hisUnion Republicans to buy his way intothe United States Senate, du Pont was therecognized leader of the RegularRepublicans and was widely believed tobe the architect of what became known as"die dirty deal". Ironically, Josiah Wolcottbecame one of the giants of the Delawarebar. He was the son of Chancellor JamesL. Wolcott, and the father of Judge,Chancellor and Chief Justice Daniel L.Wolcott. Wolcott was born in Dover in1877, graduated from Wesleyan Universityand studied law under Edward Ridgely andHenry R. Johnson in Dover. His opinions,especially in corporate matters, soonbecame nationally recognized seminalprecedents for their clarity and logic. It wasduring his tenure (1921-38) that the excel-lence of the Delaware courts came tonational attention.

N. Maxson Terry, Sr., the husband ofRebecca Terry, Chancellor JosiahWolcott's grand-daughter, often told astory about the Chancellor. One Fridaythe Chancellor received a telephone callfrom a New York lawyer requesting anemergency hearing on a temporaryrestraining order. The Chancellor agreedto hear him and his opponent in his homein Dover the next day. The lawyers tookthe Norfolk Express from New York toDover, arriving in the early afternoon.The Chancellor, a devoted hunter, spentSaturday morning in the field with hisbeloved dog. When the Chancellorreturned home, he found both lawyersawaiting him. He welcomed them to hisliving room on South State Street, stilldressed in hunting garb and with dog intow. At the end of the arguments, whilehis dog laid quietly at his feet, he said,"Well, we'll consider it and let youknow." The lawyers then departed tocatch the next train back to New York,but one was heard to say, "I wonderwhich of them (man or dog) will decide?"

In 1938, Chancellor Wolcott died

and was succeeded by William WatsonHarrington, of Dover. He graduatedfrom Delaware College and attendedHarvard Law School. Before becomingChancellor, he served as Register ofWills, Deputy Attorney General, andSuperior Court Judge. A probably apoc-ryphal story is told about him.

One Saturday he agreed to hear atemporary restraining order in Dover inan important corporate matter and thelawyers arrived by train fromWilmington and New York. (Both thisand the immediately prior story belie theallegation that Dover judges do notwork on weekends.) Melvin Hopkins, aDover lawyer, who had his office in thesame building as did the Chancellor, wasco-counsel with the New York lawyer.The arguments were long and complexand stretched into the late afternoon.The New York lawyer persisted andfinally was asked a question as to a par-ticular fact by the Wilmington lawyer.He began to shuffle dirough his papersfor the answer. Finally, ChancellorHarrington said, "Oh, never mind. I'lljust ask Melvin at lunch tomorrow."

Chancellor Harrington was a memberof die Board of Trustees of die Universityof Delaware for 59 years (a record). Hewas chairman of the board in 1949 whena suit was brought against the Universityseeking the admission of several black stu-dents. Vice Chancellor Collins J. Seitzentered an order against die Universitydiat was personally served on ChancellorHarrington, who accepted it politely.

Chancellor Harrington once com-plained to Seitz about his lazy handymanwho sometimes failed to stoke his coal fur-nace. Seitz asked him why he did not putin an oil burner and Harrington respond-ed that he couldn't do that because'itwould put the man out of a job.

In May 1939, the General Assemblypassed a statute creating the office of ViceChancellor, who was appointed by theChancellor and reported to him with arecommendation for disposition. GeorgeBurton Pearson, Jr. was chosen byChancellor Harrington and he serveduntil 1946 when he resigned to serve ondie Superior Court. Collins J. Seitz wasappointed to succeed him. In 1949 aConstitutional amendment made theoffice of Vice Chancellor a Constitutionaljudge and Seitz was appointed to thatposition by die Governor.

In 1950, Daniel F. Wolcott wasappointed Chancellor to succeedHarrington. He served only until 1951when he was appointed to the newly

DELAWARE UWYER II

separate Delaware Supreme Court, as isdiscussed elsewhere. Howard W.Bramhall served as Vice Chancellor from1951 to 1954 when he was appointed tothe Delaware Supreme Court to succeedJames M. Tunnell, who resigned. In1951 Vice Chancellor Seitz (by thenhighly controversial because of theUniversity of Delaware desegregationdecision referred to elsewhere in this arti-cle) was appointed Chancellor after arazor thin majority of the DelawareSenate confirmed his nomination at 1:00a.m. In the early 1950s, Seitz and ViceChancellor William Marvel, both knownfor their gentlemanly manners, had toface the emotional issue of racial segrega-tion. Delaware, as a border state, had amixed record on segregation. All thepublic schools were segregated, somerestaurants were segregated, but busesand trains were not. Some theaters inNew Castle County were not segregatedbut those downstate always were.

In the first case attacking racial segre-gation, Parker v. University of Delaware,Del. Ch., 75 A.2d 225 (1950), Seitzruled that all black Delaware StateCollege and all white University ofDelaware were not equal and thereforethe separate but equal doctrine of Plessyv. Ferguson did not preclude black stu-dents from being admitted to theUniversity. The University accepted theverdict and admitted the students.Several trustees, including BobCarpenter and Judge Terry, then quietlyundertook to recruit black athletes toplay football at the University. Soonthereafter, Seitz ruled in Bulah andBelton v. Gebhart, Del. Ch., 87 A.2d 862(1952), that the public black schoolswere not equal to the white schools.This order was appealed to the UnitedStates Supreme Court and was affirmedas part of Brown v. Board of Education,347 U.S. 483 (1954). Seitz's role wonhim a well-deserved national reputation.

Seitz graduated from the University ofDelaware and Virginia Law School. A rec-ognized legal scholar, he taught and lec-tured at numerous law schools. By anystandard, he was one of the finest judgesever to serve as Vice Chancellor,Chancellor, and as a judge of the UnitedStates Circuit Court of Appeals for theThird Circuit. His opinions are a model ofbrilliance, clarity and logic. He once apol-ogized that an opinion was so longbecause he did not have time to shorten it.

William Marvel of Wilmington wasappointed Vice Chancellor in 1954 andas Chancellor in 1976. He served on the

court until he retired in 1982, a term of31 years, second only to the service ofChancellor Nicholas Ridgely (1801-1830). His father, Josiah Marvel, was theonly Delawarean to serve as President ofthe American Bar Association. Marvelwas educated at Yale, CambridgeUniversity in England and Virginia LawSchool. He had an encyclopedic memoryof cases and his opinions were almostalways correct. They reflected his studyof literature, and were often written in astyle more often seen in novels. His dryhumor was legendary. Once when hewas somewhat disenchanted at beingagain called upon to sit in the SupremeCourt to fill a quorum, he said, "I thinkI'll just blow up a balloon, paint my faceon it and send it to the Chief Justice."

In a segregation case, Vice ChancellorMarvel was not as lucky as Seitz. In 1954,

Delaware

judges crafted

a modern

body of

corporate

law that

became

the national

model.

a few months after the decision in Brown,the Milford Board of Education, withoutany pending court proceeding, decided toadmit some black students. This led tostrong protests and to the case ofSimmons v. Steiner, Del. Ch., 108 A.2d173 (1954). The recendy appointed ViceChancellor ruled that the students wereproperly admitted. His opinion, however,was reversed by the Delaware SupremeCourt. Simmons v. Steiner, Del. Supr.,I l l A.2d 574 (1955).

Isaac D. Short, II, of Georgetownserved as Vice Chancellor from 1961 to1973. The Vice Chancellor, very capablein his own right, was the fadier of formerPhiladelphia Phillies pitcher Chris Short.One day the Vice Chancellor requestedpermission to adjourn a hearing onehour early, in exchange for starting onehour early the next day, in order to go toPhiladelphia to watch his son pitch. No

12 WINTER 1999/;

one, of course, had the temerity tooppose this request.

William Duffy of Wilmington servedas Judge and President Judge of theSuperior Court before becomingChancellor in 1966. In 1973 he wasappointed to the Supreme Court wherehe served until his retirement in 1982.He served in Europe in World War II asa pilot and received the Air Medal andDistinguished Flying Cross. He was uni-versally recognized for his hard work,logical mind and as being the conscienceof the court. In Singer v. Magnavox,Del. Supr., 380 A.2d 969 (1977), hewrote a strong opinion holding that themajority stockholders of a Delaware cor-poration owe a fiduciary duty to theminority stockholders.

Others who served on the Court ofChancery during the 20th Century andare retired or still serving are: William T.Quillen, Ch. 1973-1976; Grover C.Brown, V.C. 1973-1982, Ch. 1982-1985; William T. Allen, Ch. 1985-1997; William B. Chandler, III, V.C.1989-1997; Ch. 1997-; Maurice A.Hartnett, III, V.C. 1976-1994; JosephJ. Longobardi, V.C. 1982-1984;Carolyn Berger, V.C. 1984-1994;Joseph T. Walsh, V.C. 1984-1985; JackB. Jacobs, V.C. 1985-; Myron T. Steele,V.C. 1994-; Bernard Balick, V.C. 1994-1999; Stephen P. Lamb, V.C. 1997-;and Leo E. Strine, Jr., V.C. 1999-.

In 1945, the bench and bar wasshocked when the Republican-controlledSenate rejected the decision byRepublican Governor Walter W. Baconto reappoint Republican Daniel J.Layton of Georgetown as Chief Justice.Layton had served since 1933 and wasfrom a prominent family associated withthe legal history of Delaware from earli-est times. He was a brilliant and persua-sive judge, writing almost one-half of theopinions handed down by the Superiorand Supreme Courts during his twelve-year tenure. In Guth v. Loft, Del. Supr.,5 A.2d 503 (1939), Layton used power-ful language to define the fiduciary dutyimposed upon directors of a Delawarecorporation. That ruling is the bench-mark of Delaware corporate law. Layton,however, did not suffer fools lighdy andmade no effort to disguise his contemptfor an ill-prepared lawyer or even a validargument that he disagreed with. Thisincensed many influential members ofthe bar (especially former Federal JudgeHugh M. Morris) who secredy prevailedupon the Senate to reject him. Thedetails are set forth in Carol Hoffecker's

Federal Justice in the First State.After Layton's rejection, Charles S.

Richards was appointed Chief Justiceand James B. Carey was appointedResident Judge for Sussex County, suc-ceeding Richards.

The effect on the judiciary did notend with Richards' appointment, howev-er. In 1946, the second term of RichardS. Rodney as a Superior Court judgeexpired. Rodney was one of the mostlearned and popular judges ever to serveon the bench and everyone thought itwas a foregone conclusion that he wouldbe reappointed. Governor Bacon, how-ever, still smarting over the rejection ofhis reappointment of Layton, decided totake revenge on those who had opposedLayton by replacing Rodney, a Demo-crat, with Vice Chancellor GeorgeBurton Pearson, a Republican and a sup-porter of Rodney's reappointment.Rodney was a learned historian and theauthor of many publications on the his-tory of the state. He had such a pleasantmanner in court that a lawyer onceremarked he felt better when ruledagainst by Judge Rodney than when hewas affirmed by Judge Layton.

Judge Rodney received the surprising,unanticipated news that he would not bereappointed while walking out of thecourt house in Wilmington. Fortunatelyfor the people of the State, Rodney wassoon appointed to the United StatesDistrict Court in Wilmington, where heserved with great distinction.

In 1951, after a campaign begun in1933, the General Assembly amendedthe Constitution of 1897 to provide aseparate Supreme Court consisting ofthree Justices. The appointments wereto be made by Governor Elbert N.Carvel, a Democrat from Laurel, whowas determined to appoint the mostqualified persons he could find. His taskwas made difficult because two promi-nent Democrats desired to be ChiefJustice: Chancellor Daniel L. Wolcottof New Castle County, the highestranking judicial officer under the priorConstitutional provisions, and JamesM. Tunnell, Jr., of Georgetown.Wolcott had been a Superior Courtjudge as well as Chancellor and washighly respected as lawyer and judge.His family members had been powerfulleaders in the Democratic party of NewCastle and Kent Counties for genera-tions. Tunnell, the son of U. S. SenatorJames M. Tunnell, was likewise from apowerful Democratic family in SussexCounty. Both indicated they would not

be interested in serving as an AssociateJustice. Both had powerful supportersin the State Senate that would have toconfirm any appointee. Carvel decidedthat the only way to break the impassewas to find an attorney so qualified tobe Chief Justice that the other two menwould agree to serve with him.

Many members of die bar whom heconsulted recommended Clarence A.Southerland, a nationally known corporatelawyer and generally acknowledged to beone of the most prominent members ofthe Delaware bar. Carvel approached himand, somewhat to everyone's surprise, heagreed to accept die appointment. BothWolcott and Tunnell prompdy agreed toserve with him and the new justices weresworn in on June 7,1951. Although someDemocratic politicians complained foryears that a Republican Chief Justice hadbeen appointed, there was a generalacknowledgment by the bar that the repu-tation of die new Justices for excellencewas not surpassed by any other StateSupreme Court.

Southerland was known for alwaysopening court at exactly 10 a.m.,whether the lawyers were present or not,and would proceed to hear oral argu-ment even if only one side was present.The first year the Supreme Court heardonly twelve appeals and the Justicescomplained they did not have sufficientwork. Tunnell, after tiiree years, resignedand joined the Wilmington law firm ofMorris, Nichols, Arsht & Tunnell, wherehe continued a distinguished legal prac-tice. He excelled both as a brief writer, atrial and appellant litigator, and as anextraordinary advocate before a jury. Hewas generally admired as being one ofthe finest Delaware lawyers of die 20diCentury. Although a fine orator, hefailed in his goal to be elected to theUnited States Senate, perhaps because heearly questioned die country's militaryinvolvement in Viet Nam.

In 1954, Justice Tunnell was suc-ceeded by Howard W. Bramhall ofGeorgetown, who was a Vice Chancellorwhen appointed. Justice Bramhall, aquiet man, served with distinction untilhis death in 1962.

In 1962, Charles L. Terry, Jr., whohad been a Superior Court judge since1938 and President Judge since 1957,was appointed to succeed Bramhall asAssociate Justice. In 1963 Terry becamethe second Chief Justice of the separateSupreme Court, succeeding Soudierlandat the end of his term.

Also in 1963, James B. Carey of

DELAWARE LAWYER 13

Sussex County, the Resident SuperiorCourt Judge of Sussex County for nine-teen years, was appointed to theSupreme Court to fill die vacancy causedby Terry's elevation to Chief Justice.Former Chief Justice Andrew Christie, inreminiscing about Carey, said diat short-ly after he was appointed as a SuperiorCourt judge he was presiding over a jurytrial in Georgetown. During a recess hetold Judge Carey how he had just ruledon an evidentiary issue. Carey made nocomment. At the next recess, however,Christie found three law books openedon his desk, all containing cases showingthat he had been incorrect.

In 1964, Terry retired from theSupreme Court to accept the draft ofhis Democratic Party to run forGovernor. He was elected and thusbecame the only person to hold the twohighest offices in Delaware: ChiefJustice and Governor.

Terry, from Camden, Delaware,graduated from Washington and LeeUniversity Law School, where he was anotable adilete. He was one of die mostfriendly and popular judges ever to sit onthe Delaware bench. He had a genuineinterest in people regardless of politicalparty, race, religion or wealth. His effortsto help people in need was legendary aswas his ability to obtain from politiciansthe resources needed for the courts.

Once Justice Wolcott, at the requestof Chief Justice Southerland, headed aneffort to obtain passage of a bill in theGeneral Assembly to improve die admin-istration of justice. Wolcott appeared onthe floor of the Senate expecting noopposition to the bill, but then saw itdefeated by an almost unanimous vote.Shocked by tiiis result, he immediatelycalled Terry, who was then a SuperiorCourt judge, to ask his advice. Terrysaid, "Don't worry, Dan. I'll take care ofit." Terry prompdy got the bill restoredto the calendar and, after a respectfuldelay, went on die floor of die Senate tore-explain the bill and the reasons it wasneeded. It then passed unanimously!

Terry also had a wonderful way withsubordinates. Whenever he had a prob-lem involving a judge he would call thejudge and ask permission to visit in thejudge's chamber. He and the errantjudge always departed as friends widi dieproblem resolved.

Upon Terry's resignation to run forGovernor, Daniel F. Wolcott becameChief Justice. Wolcott grew up in Doverand, in 1949, had been appointed to dieSuperior Court. The following year he

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was appointed Chancellor, as his fatherand grandfather had been before him.Six months later, in 1951, he becamean Associate Justice of the new Su-preme Court. He died in office in 1973.During his 22-year tenure on theSupreme Court the filings increasedfrom twelve per year to almost 260. Hismany opinions were clearly and concise-ly written and still serve as benchmarksof Delaware law.

In 1973, at the death of Chief JusticeWolcott, Daniel L. Herrmann becameChief Justice. He had served as aSuperior Court judge until 1958 (whenhe resigned to practice law) and in 1965he had been appointed an AssociateJustice. There was never any doubt whowas Chief Justice during his term. Hisappearance, manner and strong defenseof the courts would have permitted astranger to recognize him. Nor was thereany doubt that he saw the judiciary as anequal independent branch of govern-ment. Sometimes his strong views werenot popular with some members of theGeneral Assembly.

By 1978, the Delaware SupremeCourt was the only court of last resort inthe nation with fewer than five membersand its caseload was overwhelming.Herrmann, recognizing the need, led aneffort to have the General Assemblyexpand the Supreme Court to five mem-bers, which finally occurred in 1978.Justice Herrmann retired in 1985 anddied in 1991.

In 1985, Andrew D. Christie suc-ceeded Herrmann as Chief Justiceafter having served as an AssociateJustice since 1983. He had served as aSuperior Court Judge for almost 26years before being appointed to theSupreme Court. He was the ExecutiveDirector of the Legislative ReferenceBureau and was one of the three CodeRevisors that drafted the landmarkDelaware Code of 1953, the first mod-ern codification of Delaware statutes.During his term as Chief Justice, thecase filings in the Supreme Courtincreased to over 500 per year.Christie submitted the first unifiedbudget for the judiciary, much to theapproval of the General Assembly. Hewas a hard worker and he expectedlawyers to be as well prepared as hewas. The bar of Kent and SussexCounties always knew that the calen-dar would be cleared whenever he wasassigned to a term and he sometimesstarted a second trial after dinner. Hewas a great defender of the dignity of

WINTER •9c,c>/aooo

the court and required all whoappeared (including witnesses) to beproperly dressed. He also stronglybelieved in following precedents, as isreflected in his many opinions.

The following persons are retired orare now serving on the Supreme Court:Chief Justice E. Norman Veasey, 1992-;John J. McNeilly, Jr., 1962- 1974;William T. Quillen, 1978-1983; HenryRidgely Horsey, 1978-1994; Andrew G.T. Moore, II, 1982-1994; Randy J.Holland, 1987-; Maurice A. Hartnett,III, 1994-; and Carolyn Berger, 1994-.Many other notable judges have servedon the Delaware bench in the first half ofthe 20th century. For the names of theSuperior Court judges appointed before1994, see The Delaware Bar in the 20thCentury, pgs. 710- 715.

Some of the most distinguishedjudges have served as judges on theUnited States Court of Appeals for theThird Circuit. Judge George Gray wasonce considered to be a serious candi-date for President of the United States.Victor B. Woolley's two-volume Prac-tice in Civil Actions, published in 1906,is still consulted by careful lawyers,especially as to the law of judgmentsand executions.

John Biggs, Jr., who was appointed in1937 and then became Chief Judge ofthe influential Circuit, was a leader of thefederal bar for many years. Biggs knewthe trappings of his office and oftenasserted them. He required that the trainhe daily took to Philadelphia fromClaymont not only stop at unscheduledClaymont, but stop precisely in front ofhim so that he might enter the diningcar from where he waited.

The distinguished U. S. DistrictCourt judges who served during the firsthalf of the Century were Edward G.Bradford, Hugh M. Morris, John P.Nields, Paul Leahy, Richard S. Rodney,Caleb M. Wright, Caleb R. Layton andEdwin D. Steele.

In considering Delaware's Judiciary inthe 20th Century, one observationstands out. The Delaware constitutionalsystem that provides that all judges beappointed by the Governor (with confir-mation by the Senate), coupled with therequirement of a bipartisan political bal-ance for judges, has attracted persons ofexceptional learning and dedication tothe judiciary. Most have served with dis-tinction and, along with an illustriousbar, have made the Delaware judicial sys-tem the envy of the country. •

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DELAWARE LAWYER 15

T. Allen

20TH CENTURYEVOLUTION AND

GROWTH OF DELAWARECORPORATION LAW

S I. THE LARGER SOCIALCONTEXTOF

ORGANIZATION LAWtanding at the cusp of the millennium invites usto pause for assessment and appraisal. The sym-bolism of the moment stimulates a meditativemood and a sense that this is a propitiousmoment to pause and to talk of things old andnew and things that are yet to be. Two develop-ments especially contribute to the sense that theshape of our future is a bit less obscure today, onthe eve of the millennial change, than it was eventen years ago. The first is the momentous 1989fall of Soviet communism. With that fall, the

model of the planned and tightly controlled national economylanded with a thud in history's wastebasket. "Scientific"Marxism was at its heart polemical, not scientific. It was badlywrong at its root. It failed to understand a fact that Anglo-American corporation law took as foundational when, in1849, Marx first published his famous critique and that westill take as foundational today: capital contributes value toenterprise, and those who voluntarily contribute it to anundertaking must be protected with legal rights.'

Marx's errors were not worked out in seminar presenta-tions. It took 150 years — and much human suffering — forthe profound failure of anti-capitalism to be clear to almosteveryone. The world has borne, and still bears, unimaginablecosts for the injuries wrought by a legal and economic systembuilt on a well-meaning error.

Today, one version or another of a market form of econom-ic organizations is widely thought to provide die only sustain-able future for most of the world. For some, this is a deeplyregrettable state of affairs. To them, economic liberalism canbe corrosive of local cultures and values, tends to alienate peo-

ple from each other and leads to the exploitation of vulnerablepeople. They regard the liberal, market-centered regime asbeing forced upon unwilling peoples around the world byglobal markets, by soulless modern technology and byAmerican economic hegemony. To them, the future lookschilling, if not frightening.

To odiers, however, and to most members of the Delawarebench and bar I suppose, the recession of the administeredeconomy as a viable model represents a very positive develop-ment, which while not alone assuring improvement in globalhuman welfare, does provide a historic opportunity for growtiiin human liberty and welfare.

The second recent event that seems to illuminate ourfuture, or at least an optimistic version of it, is die developmentand exploitation of technology, most notably die Internet. Weall, I think, are periodically surprised anew as information tech-nology changes die way" we work, play, shop, learn and com-municate. Indeed, the effects of the new technology are perva-sive. Expressed in economic terms, die make-up of our pro-ductive assets is being transformed. A century-long evolution isspeeding up: no longer is wealth principally referable to controlover land or raw materials, or even over large collections ofmachines. Nor for individuals can basic sustenance reasonablybe assured any longer by a willingness to invest one's brutelabor. Today real value, and thus the ability to create wealth,resides principally elsewhere: in knowledge or information andintellectual property in it; in know-how, brand identificationand business systems that sustain the firm's ability to createnew value; and, finally, in legal forms of organization and gov-ernance that sustain efficient production.

The birth of the information or knowledge economy raisesthe interesting question whetiier die publicly financed corpo-rate form will itself continue to provide the most efficient formof enterprise in our future economy. The answer I suggest is

l€> WINTER 1999/2000

that, if the economies of scale and scopethat underlie today's giant public corpo-ration undergo fundamental adjustmentin a knowledge economy, then we mightsee a different industry structure emergein the 21st Century. For the moment,however, that is a part of the future hid-den from my sight, at least.

Despite the clarity and charm of asimple vision, our 20th Century marketeconomy has never been simply a self-organizing response of free individuals tothe economic problem of scarcity.Collective action — law and public poli-cy — contributed to the wealth creationprocess in a myriad of vital ways: by pub-lic support for education and training; byfacilitating the existence of cadres ofexpert independent professionals; bydeveloped systems of law, accountingand banking; and, most generally, bypromoting and protecting a social envi-ronment in which long-term planning isrational and a culture in which trust isnot for saps only. All of these togetherconstitute public and cultural capital thatwill continue in the 21st Century to bevital for an efficient, market-centered sys-tem of economic order. The choice weare sometimes given between coercivegovernment or free markets as organiz-ing institutions is a false choice. Marketscannot operate widiout law, but unwiselaw can smother market efficiency just aswise law can facilitate human welfare.

These developments — die spread ofliberal political systems and the head-spinning advance in information andcomputer technology — allow us to beguardedly optimistic as we stare into dienext millennium. The challenges wehumans face are great, of course. Humanpopulations are threatened by starvationand disease in large areas of Africa and inAsia as well. Pandemics threaten ourheavily populated planet. In die lands ofthe old Soviet empire, welfare is imped-ed by distrust and dishonesty born ofgenerations of corruption and the subju-gation of law to power. And in somedark corners of die world, basic humanrights — rights of free expression, of reli-gious freedom, freedom from torture orslavery — are reputed as cultural imperi-alism. But despite die pressing need forgreater economic growth and for accep-tance of the rule of law as a predicate forthat growth, we have, I diink, good rea-son to be hopeful about the projectionof a line measuring general human wel-fare into the 21st Century.

Corporation law plays an importantrole in providing the institutional frame-

work that allows the liberal market econ-omy to function efficiently to satisfyhuman needs and to facilitate the realiza-tion of human potential. Thus, as noted,a deep and pertinent difference betweenMarxism and capitalism lies in the legiti-mating of rights of capital — of share-holders — in the latter but not in theformer. Corporate law is not trivial, asone law review piece of a few years agosuggested: it is vital.2 When this law iscreated poorly or administered unwisely,individuals suffer by not being permittedto arrange their economic relations effi-ciently, and society as a whole suffersbecause it does not have available to itsmembers wealth that might otherwisehave been used for some good purpose.When corporation law is well-designedand well-administered, it better allowsindividuals to accomplish dieir purposesand thereby advances the public good.Thus, corporation law serves importantpublic welfare purposes and effects.

II. C O R P O R A T E L A WEVOLUTION OVER

THE CENTURYIn pausing at diis millennial moment,

we might turn our gaze from die largestaspects of our social life to more particu-lar concerns of our profession. AsDelaware lawyers, to a greater or lesserextent, we each do have a special interestin corporation law, if for no other reasonthan our jurisdiction is so well-known asbeing of commanding importance in thisfield. The growth or the decay of thisbody of law has special meaning to us aslawyers and as citizens. Thus, it seemedplausible to our editor that a brief reviewof the major corporate law changes thatdie Century has witnessed and the majorchallenges that this body of law facesmight hold some interest for this audi-ence. I happily accepted the imitation tosupply such a view, in die spirit of a trav-eling brother writing home and describ-ing a country from 30,000 feet. I may bewrong in what follows — I have beenbefore and I can cite judicial audiority insupport of that — so I encourage correc-tions in the letters to the editor column.

The first interesting observation Imight make about corporation law overthe course of die 20th Century is how, asa field of intellectual activity, corporationlaw fell in prestige and in die seriousnesswidi which it was taken during the firstthree-quarters of the Century an«l how itrose, in diose same terms, during die last25 years of the Century. For practicallawyers, the intellectual pedigree of cor-

poration law is probably not very impor-tant, but diere is somediing interesting inthis reputational volatility. (Of course,die practice of corporation law through-out the Century has continued to have acertain cachet in the profession andamong observers, if only for die reasondiat corporate lawyers tend to work onlarge-dollar transactions for clients who,generally, are well able to pay their fees.That cachet is not what I am talkingabout when I talk about the intellectualstanding of die field.)

At die start of this Century, the acade-my had a clear view of die importance ofcorporation law. Observers then couldthemselves easily remember days whenthere were few large-scale organizationsof economic production. The elderstatesmen of say, 1890, had personallywitnessed the unimaginable growth ofthe Second Industrial Revolution thatoccurred after die Civil War. They appre-ciated in a personal way the importanceof facilitating die organization of die vastresources necessary to operate enterpriseat the large scale that new technologymade efficient. Indeed, for diat genera-tion, die legal innovation of die publiclyfinanced corporate form was one of thegreatest discoveries of die age.

The corporate form has great utilityas a device to facilitate the aggregation ofcapital necessary to support large-scaleoperations. The late 19th centurythought the development of the corpo-rate form represented a singular achieve-ment. It sounds curious to a modernaudience to hear diat Harvard's CharlesW. Eliot regarded the limited liabilitycharacteristic of corporations as "by farthe most effective legal invention madein the nineteenth century."3 Columbia

_ University's Nicholas Murray Buder waseven more expansive when he said:

I weigh my words when I say that... die limited liability corporation isthe greatest single discovery ofmodern times.4

Today no one would claim such sig-nificance for our formal techniques oforganization. We have now grown usedto die limited liability, capital-aggregat-ing corporate form. Its contribution toour welfare no longer seems novel orperhaps even noticeable. But these earlystatements remind us that, when seenwith fresh eyes, these rules of organiza-tion were seen as enormously important.Those rules, and the policy choicesembedded in them, remain important.

DELAWARE LAWYER

For those of us born in the middle tolate 20th Century, the organization ofeffort in large-scale enterprise is no morenovel or interesting than, say, the existenceof electricity. But earlier eyes saw moreclearly. The main corporation law story ofthe 19th Century to which these com-mentators referred was the developmentof free incorporation under general laws ofincorporation. At the beginning of the19th Century, corporations were few, anda special act of the legislature was requiredto create one. When created, they werelimited to a stated purpose and were oftenlimited in other ways as well: geographical-ly, for example (or, more oddly to modernears, in the size of their permitted capital-ization). By the end of the century, thecorporate form had become openly avail-able to all. A corporation began to lookmore like a contract among a group ofenterprising persons than an act of state.Capital markets with their roots in the18th Century had begun in the 19thCentury to trade equities and to grow;thus, by the last decades of the 19thCentury, affording a condition for thegrowth of the modern corporation.

The large-scale story of the 20thCentury in corporation law is a continu-ation of this freedom of contractapproach to corporation law. Thus, legalrestrictions that originally had beenimposed as good public policy — suchas a restriction on owning the shares ofany other corporation — began to dis-appear. Mergers are a good example. Atfirst, mergers between two corporationswere not possible without the issuanceof a new certificate by the legislature.This inability followed from the verynature of the corporation. If it requireda legislative act to create a corporationand to fix its characteristics, then onlythe legislature could effectuate such afundamental change as a merger, inwhich one of the parties disappears andthe surviving one changes in scale orscope. But as the corporation begins tolook more like a contract over the 19thCentury, then one might expect a differ-ent view of mergers to evolve. With theintroduction of general laws of incorpo-ration, mergers became possible theo-retically, but not practically. If the cor-poration is seen as a contract to whicheach investor is a party, it follows thatrights that had been achieved in thecontract could not be changed withoutinvestor consent. Thus, mergers wereinitially held to require unanimousshareholder approval. While this con-ception was not aesthetically (or profes-

sionally) bad, it didn't work very well inthe dynamic economy of the late 19thcentury. But, by the end of the 19thcentury, the demands of a dynamiceconomy required that mergers or otherforms of industrial restructuring bemore easily available. Thus, corporatelaw amendments were introduced thatpermitted mergers with less than unani-mous shareholder approval — some-times 66%, sometimes 75%. The 20thcentury continued this trend of easiermergers. In 1967, Delaware reduced theshare vote necessary to authorize amerger from two-thirds to a majority,and the permissible consideration in amerger was broadened to include cash.Thereafter, it was clearly permitted

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legally for a majority shareholder toeliminate a minority shareholder fromparticipation in the enterprise.

The list of mandatory or prohibitedfeatures of corporation law that haveevolved into "take them or leave them"options is impressive. In addition to own-ership of stock and corporate mergers, wecount par value of stock, director owner-ship of qualifying shares, preemptiverights to more new issues, and prohibi-tion of director self-dealing. Even votingstock, which appears to be a fundamentalcharacteristic of a modern corporation, istoday simply an option: a corporation canbe formed with a single share of no-parvoting stock. All of the capital of the firmcould be raised through the issuance of

debt and non-voting equity. The fact thatwe never see such firms simply reflects, Isuppose, the practical value of the vote tothe holders of equity. Investors would beunlikely to buy a security that has nopreferences and no vote.

In all events, the corporation hasroughly evolved to the point that veryfew provisions of law are truly mandato-ry. The Delaware law proudly proclaimsitself to be an enabling statute. By mid-20th century, this evolution lead to theview best expressed by Bayless Manningin his often-cited article, The ShareholderAppraisal Remedy: An Essay for FrankCohen,5 that corporation law had evolvedto the point that there was no "there"there. "[Corporation law, as a field ofintellectual effort, is dead in the UnitedStates." Dean Manning proclaimed."When American law has ceased to takethe 'corporation' seriously, the entirebody of law that had been built uponthat intellectual construct slowly perforat-ed and rotted away. We have nothing leftbut our great empty corporation statutes— towering skyscrapers of rusted girders,internally welded together and contain-ing nothing but wind."6

This theme of an empty body of lawwas echoed quite recently by ProfessorBernie Black in entitling an academicarticle with the question "Is CorporateLaw Trivial?"7 One might think that itreflects a certain hubris to posit that onesees the insignificance of this body of lawat the very time at which questions ofcorporation law were in fact deciding theoutcomes of massive restructurings thatconstituted the hostile takeover move-ment of the 1980s. In fact, Black's tim-ing for deploying this eye-catching titlecould not have been worse.

Shortly thereafter, the need torestructure the economies of the formerSoviet bloc demonstrated to all that aworking and effective body of law oforganizational form is an important partof the market superstructure that allowsa free market economy to operate effec-tively. Following the unification effortsof the European Union and the legalinfrastructural work needed in EasternEurope and Asia, few people are sayingtoday that the legal infrastructure ofbusiness organization is unimportant.

So, at the end of the 20th century, wearrive back at something like the positionannounced by the late 19th century aca-demics. Now we tend to refer to "corpo-rate governance," a topic that includesbut goes beyond corporate law. But nev-ertheless, the deep importance to the

18 WINTER 1999/2000

economy, and to each of us, of the law oforganizational form is evidenced over diewhole face of die globe by academic con-ferences and academic papers, by govern-ment commissions and by non-govern-mental organizations studying compara-tive ways to organize economic activity.

III. COUNTERVAILINGDEVELOPMENTS:

FIDUCIARY DUTIESThe continuation of a 19th century

movement towards a permissive, con-tractual view of incorporated organiza-tion is not the only remarkable featureof the 20th Century corporation law.The other equally vital aspect of thisevolution has been the growth of thefiduciary concept and the frequencywith which courts resort to it. This evo-lution is in fact the countervailingdevelopment that facilitates the system'sassuring adequate protection to capitalto make a permissive regime practica-ble. The imposition of fiduciary dutiesis not the only, or perhaps not even theprincipal, protection that owners ofcapital have against expropriation orloss of their investment by empoweredand loosely constrained boards.Shareholders' abilities to sell their stock

and to vote are collectively more pow-erful tools than their ability to sue. Butthe exercise of these powers doesencounter collective action problems.Equally important, the ability to sue forbreach of fiduciary duty protects theability to sell and the ability to vote, aswell as protecting against an unfairlypriced, self-dealing transaction.

Thus, while I will not try to demon-strate it here, I suggest that die fiduciaryduty has gradually taken a more centralplace in the operation of the corporatelaw as this Century has progressed andthat this is generally a healthy reaction tothe relaxation of legal constraints onboard prerogatives. While I do think thatthis has been a useful and positive devel-opment, it is one that is ever-rife withvery significant problems. In part, theseproblems can be systematically containedby legislative reversal of poor policychoices by courts, but that remedy canbe risky and cosdy.

The principal innovation of corpora-tion law over the last 20 years has beenthe development of an "intermediate"form of judicial review of board actionThe paradigm cases — die Revlorf andUnocal9 line of cases — involve threat-ened or effected "changes in corporate

control." In these cases, courts recognizethat neither the stringent "fairness" stan-dard nor the permissive "business judg-ment" standard is quite appropriate. Inultimately adopting an intermediatestandard — reasonableness in light ofsome goal — in Paramount Communi-cations Inc. v. QVC Network, Inc.,10 dieDelaware Supreme Court willinglyinserted courts more readily into thebusiness of substantive review of deci-sions. Twenty-five years earlier, theSupreme Court had felt constrained tostray from the business judgment rule'sstrong bias against judicial action inresponding to the novel innovation ofoption compensation.11

Courts have eroded the passivity ofthe business judgment philosophywhere they have been called upon toassure the integrity of the voting pro-cess. The vote is the true fountainheadof legal power for shareholders. Itsimportance cannot be easily overstated.Even were there never any contestedproxy contests or hostile takeoverattempts, it is the possibility of suchaction, should stock prices drop toolow, diat serves as a constant disciplineon management. The breadth of man-agerial discretion, however, can permit

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an endless and unforeseeable range ofactions that may disadvantage share-holders organizing to remove or todefeat an incumbent board. Whilecourts have always acted to protect thevote,12 in recent years they seem moreinclined to do so.13

Thus, from the 30,000-foot level,the development of corporation lawover the course of this century hasentailed two offsetting trends. The firstbroadly empowers management in astatutory scheme that is almost withoutconstraints. Of course individual entre-preneurs can put such constraints backinto charters, but rarely does one findcompanies going public with such con-straints inserted into the charter. I takethis as some evidence that there areimportant efficiency advantages thatcan be achieved through such open-textured governance. The secondaspect of our history is no less impor-tant. It is the increased willingness ofcourts to act under the fiduciary dutyrubric to offer public investors someassurance that their investment will nottreated opportunistically by manage-ment or the board.

There are risks to our welfare posedby this judicial role. I claim for the judi-cial role a vital place. I think that theability to contribute to an efficient sys-tem of organization law dependsimportantly upon courts being able andwilling to enforce the unstated terms ofinvestors' expectations under the lan-guage of fiduciary duty. This ability toenforce reasonable expectations is high-ly beneficial for two reasons, one ofwhich is rarely mentioned. The first rea-son is the utilitarian reason that those incontrol are somewhat less likely to vio-late the reasonable expectations ofinvestors if they can foresee a judicialaccounting. The second reason is notutilitarian: it is expressive. Directorsneed to know what constitutes rightbehavior in office if they are to act inaccordance with such standards.Corporate directors are, for the mostpart, morally of the same sort as the restof us. They prefer to do the right thing,if they know what the right thing is andall other things are equal. Moreover,like the rest of us, they will even preferto incur some cost to be able to say tothemselves (and their families) that theyhave done the right thing. Directorsare, like all of us, fallible and frail insome circumstances, and diverse in thestresses that will cause them to yield totemptation. But the existence of an

WINTER

authoritative respected voice of thecommunity announcing the properstandards to these men and women(and the potential that that authorita-tive voice may publicly criticize theirbehavior) represents an additional andsocially worthwhile source of influenceon corporate behavior.

Thus, for more reasons than one,courts have played a critical role in mak-ing the 20th Century corporation lawan efficient law of organization. But inexercising their fiduciary oversight,courts are certainly capable of mischiefas well as great good. Particularly inDelaware, where so much responsibilityis borne by the judges of the Court ofChancery and die Supreme Court, it isvital that these positions be filled withindividuals of talent, dedication andmodesty. In few areas of the law are thedemands for judicial self-restraint andjudicial courage more frequentlybrought into apparent conflict. Thus, asthe category of "intermediate review"cases expands, that expansion must bebalanced by a renewed judicial commit-ment to judicial self-restraint and aresolve to protect principally the funda-mental processes that constitute share-holder voice. •

FOOTNOTES1. See, e.g., 8 Del.C. §§21 l,151,141(b)

(directors elected by shareholders annually)(allshares vote in cases of default)(directors managebusiness and affairs of corporation); BlasiusIndus., Inc. v. Atlas Corp., 564A.2d 651 (Del.Ch. 1988) (directors' action to interfere withvote is presumptively invalid; only compellingjustification can sustain such action.)

2. See Black, Bernard S., Is Corporate LawTrivial: A Political and Economic Analysis, 84NW.U.L.Rev. 542 (1990).

3. On the relative importance of the corpo-rate form, see ] . Willard Hurst, THE LEGITI-MACY OF THE BUSINESS CORPORATIONIN THE LAWS OF THE UNITED STATES,1780-1970 (1970), pp.9,155-162.

4. Id.5.72 YALE L.J. 223(1962).6. Id.7. 84 NW. U.L. REV. 542 (1990).8. Revlon, Inc. v. MacAndrews & Forbes

Holdings, Inc., 506 A.2d 173 (Del. 1985).9. Unocal Corp. v. Mesa Petroleum Co., 493

A.2d 946 (Del. 1985).10. 637 A.2d 34 (Del. 1994).11. See Supreme Court cases cited in Lewis

v. Vogelstein, 699 A.2d 327 (Del.Ch. 1996).12. See Speiser v. Baker, 525 A.2d 1001

(Del. Ch. 1987).13. See Blasius Industries, Inc. v. Atlas

Corp., 564 A.2d 651 (Del.Ch. 1988); CondecCorp. v. Lunkenheimer Co., 230 A.2d 769 (Del.Ch. 1967).

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Helen 1VI. Richards

PICTURE THEDELAWARE BAR

IN THE 21ST CENTURY

It used to be the practice in Delaware — when the benchand bar numbered only a couple of dozen souls — thatthe photographs of these illustrious few were combinedinto a single photographic composite. Each member ofthe bar received a copy suitable for framing. Countlessexamples hang in law offices and chambers around thestate. What is notable about these composites is not justthe uniformly dour expressions but the fact that the facesare all those of white men, except for that of Louis L.Redding, Delaware's first African-American lawyer. Sincethose early years, the collective face of the Delaware Barhas changed significantly. For example, women nowcomprise nearly 30 percent of the Bar.

The progress of minorities, however, is more diffi-cult to measure. There is no uniform definition of minority,and no statistics concerning the race or ethnicity of lawyers aregathered in Delaware by the Board of Bar Examiners or theBar Association. For our purposes, minority will be defined asan individual of African, Hispanic, Native American or Asiaticdescent. The Delaware Bar in the Twentieth Century 721 n.60-1 (The Delaware State Bar Association 1994), reportedthat "reviews of the 1990-1991 Pictorial Directory of theDelaware State Bar Association, old group photographs, oralhistories and the memories of knowledgeable members" indi-cated that only 57 minority attorneys were admitted to theDelaware Bar in its first 70 years. Such under-representationshould be of concern. Of course, Delaware is not unique inthis regard. There are approximately 28,413 black attorneys inthis country, compared to a total black population in theUnited States of 29,930,524 persons, according to the 1990Census. There are approximately 26,691 Hispanic attorneyswithin a comparably large United States Hispanic population.

In recent months, even the Supreme Court of the UnitedStates has been under fire for its dismal record in providingopportunities for qualified minorities among its select cadre oflaw clerks. For the 1999-2000 term, among the new class of

law clerks, only five out of 35 are minorities — two blacks andthree Asian-Americans. Last year's class included only one, anHispanic. In 1998, three members of Congress urged the jus-tices to participate in "a dialogue with minority bar associationsregarding the hiring process." Chief Justice William H.Rehnquist told the delegation that such a dialogue would be"inappropriate." The Court defends its hiring practices byinsisting that the process is neutral. Even so, the issue is notprincipally one of numbers.

While the gathering of statistics is often useful at the outsetof a project as a means of measuring progress towards a goal —in this case, diversity in the practice of law — at some point intime, it becomes an end in itself and no longer serves as anaccurate measure of progress. If the Delaware Bar is to achievereal diversity in the new millennium, it must strive for equalityof treatment, not just equality of numbers.

From that perspective, Delaware, like many other states, hasa long way to go. The Delaware Gender Task Force foundnumerous instances of gender bias in the judiciary and in theprofession. One judge had no reservations about commentingon a female attorney's attire during the course of a hearing.Perhaps this is not surprising, considering the unseemly specu-lation of the media concerning Marcia Clark's hair style andmanner of dress during OJ. Simpson's trial or the attentionpaid to Hillary Clinton's latest haircut. More surprising, how-ever, is the anecdote of a senior partner's question to a femaleattorney during a job interview as to whether it was her inten-tion to pursue a career in law. The partner explained that,while he did not ask this question of male applicants, he didnot want to hire a woman interested in having a family in thenear future. Another female attorney was asked in the course ofseveral job interviews about her husband's occupation andwhether he approved of her choice of profession and its timedemands. Still another female attorney was advised by a seniorpartner during an interview that she should wear dresses towork because it is a man's world and a woman should use her

WINTER

looks to her advantage.Task forces in other states have identi-

fied similar instances of institutional bias.In Connecticut, one female attorneyreported that some judges repeatedlyaddressed them by their first names, whileaddressing male attorneys by their sur-names or titles. Another judge openedcourt by stating: "Good morning, gentle-men." In Texas, one male attorney statedthat "[w]omen get away with murder incourt as well as everywhere else. Men suf-fer great discrimination in divorce cases."Another believed that "the so-called 'gen-der gap' is vastly overblown. If peoplewho enter die arena will concentrate ontheir job and get the chip off their shoul-ders, forgetting their sex, they should dofine in today's society." Similarly, anothermale attorney stated: "This survey is awaste of time and money. Women shouldgrow up and stop whining."

Such anecdotes indicate that bias isalive and well. As one Delaware attorneycommented: "Any one of these kinds ofexperiences is perhaps not all that earth-shattering. But those who dismiss theseincidents fail to appreciate the cumulativeeffect that incidents like these have whenthey happen on a frequent basis. Notonly do such remarks and attitudes gettiresome but they require a considerableexpenditure of energy worrying abouthow you are being perceived. They alsotell you that you are seen first as a sexu-al/social being radier than respected as aprofessional colleague."

And, of course, the problem is not justone of gender. Consider the story told byone federal judge who described his joy atbeing appointed to the bench as follows:"I am even more fortunate, however,because of my background. I am animmigrant. I was born in Hong Kong.My mother was a seamstress in aChinatown garment factory. My fatherwas a cook in Chinese restaurants. Mygrandfather was a waiter in Chineserestaurants for many, many years. Yet,with this background, I was able to enterthe profession." This judge reported that,in an important business case that hedecided, attorneys for the losing side fileda motion to disqualify him because one ofthe litigants on the winning side was ofChinese descent. The implication was thatthe judge could not have decided thematter impartially merely because he wasof the same ethnic background. Thejudge sanctioned the two lawyers forquestioning his impartiality on the basis ofethnicity. His decision was affirmed bythe Second Circuit. (MacDraw, Inc. v.

CIT Group Equip. Fin., Inc., 157 F.3d956 (2d Cir. 1998) (per curiam)). But,for the judge, that affirmation must havebeen tinged widi the taste of ashes.

For Delaware, as for its sister states, thetask for the next century is not merely toincrease the representation of women andminorities at all levels of the profession,but to assimilate the richness of their vari-ous perspectives into the fabric of the Bar.Having different perspectives in the pro-fession will increase the number and quali-ty of ideas in circulation for solving legalproblems and for revising "conventionalwisdom." In addition, diversity in the barand bench will enhance both the actualfairness of public proceedings as well asthe public's perception of fairness. Trust isthe core of the judicial system, and peoplemust believe that the system is fair. Buttrust is difficult to achieve when thereappears to be a systematic exclusion of cer-tain races and ethnicities — the same peo-ple who have historically participated dis-

30% of the

members

of the fc>ar

are now

women.

proportionately in the system's punish-ment mechanisms.

By virtue of having a shared life expe-rience, minority, as well as female, mem-bers of the bar may be better able toprovide insight on the legal professionto female and minority clients. In addi-tion, while we might wish it were notso, clients have a strong interest in hir-ing an attorney who understands theirbackground, arguments, hopes and aspi-rations. An attorney is engaged to influ-ence those who may be called upon todecide matters of great importance tothe client — matters involving reputa-tion, home, livelihood, freedom andsometimes even life. Advocacy isenhanced when an attorney understandsthe client's predicament and struggles.As Professor Carrington stated in arecent article: "Given the role thatcourts play in our polychromatic society. . . it is an important value that there bea significant number of judges and

advocates identifiably connected tothose of like color whose rights and lia-bilities must be determined in thosecourts. If connections of this kind aretoo rare or too slender, reasonable per-sons of color are apt to conclude thatthe system is unable to synthesize theirinterests as appropriate dimensions ofthe common public interest that demo-cratic law is obliged to reflect. As aresult, judicial decisions are less effectivein bringing social peace." Paul D.Carrington, Diversity!, 1992 Utah L.Rev. 1105, 1150.

As we look ahead to the year 2000, itis appropriate for the Delaware Bar toreflect on where it has been and where itwants to go. Self-examination can helpus see clearly where we are and help usrecognize where we should be. JusticeRuth Bader Ginsburg described the ben-efits of such an inward look to the courtsas follows. "Self-examination of thecourts' facilities and practices . . . canyield significant gains. First, such projectsenhance public understanding that gen-der equality is an important goal for aNation concerned with full utilization ofthe talents of all of its people. Second,self-examination enables an institution toidentify, and devise means to eliminate,the harmful effects of gender bias. Third,close attention to the existence ofunconscious prejudice can prompt andencourage those who work in the courtsto listen to women's voices, and toaccord women's proposals the respectcustomarily accorded ideas advanced bymen. And finally, self-inspection height-ens appreciation that progress does notoccur automatically, but requires a con-certed effort to change habitual modesof thinking and acting."

Although Justice Ginsburg wasfocusing on gender equality, the bene-fits she identified apply equally to thelarger goal of diversity. The DelawareBar must take a leadership role in thisprocess and stimulate active participa-tion among the various groups that caninfluence the outcome of the endeavor,including Widener University School ofLaw, the courts, private law firms, thecorporate community, educators andcounselors, governmental leaders andpolicy makers. It will require the con-certed efforts of all these groups tobring about true diversity in the profes-sion, where an individual stands out forthe quality of his or her professionalability and not for membership in aminority group. Just think what theDelaware Bar will look like then! •

DELAWARE LAWYER 23

Irving Morris

THE HAIR TONIC BOND

INTRODUCTION

The following is drawn from a chapter in a book our colleague, Irving Morris, is writing. While he was still in lawschool, three young men were arrested, tried, convicted and sentenced to life in prison for the crime of rape. At their trial inFebruary 1948, a high ranking police officer in charge of the investigation gave perjured testimony extremely damaging tothe defendants' credibility. Outraged at the unfairness of a conviction obtained under these circumstances, Mr. Morris inJanuary 1953 undertook the representation of Curran, Jones and Maguire. He pursued justice for nearly six years and in sixdifferent courts until finally vindicating a principle now the law of the land:

...a conviction obtained through use of false evidence, known to be such byrepresentatives of the State, must fall under the Fourteenth Amendment...

Napue v. Illinois, 360 U.S. 264, 269 (1959), citing Curran v. Delaware, the case of which Mr. Morris writes. That princi-ple, once unanimously rejected by the Courts of Delaware, now stands as one of the most important advances in the criminaljurisprudence of this State. - William E. Wiggin

Judge Caleb M. Wright's ruling on August 15,1957, was my first victory in over four and a halfyears of litigation in The Rape Case. Curran v. Stateof Delaware, D.Del., 154 F.Supp. 27 (1957).Subsequently, in an editorial on February 26,1959,at the time the State abandoned further prosecutionof my clients, Francis J. Curran, Ira F. Jones, Jr.,and Francis J. Maguire, The Journal Every Eveningcalled The Rape Case "One of Delaware's mostfamous criminal cases... ." When Judge Wrightruled (less than two months before he becameChief Judge on October 8, 1957, upon ChiefJudge Paul Leahy's retirement on October 7,1957), my clients had served almost ten years in jailfrom their arrest in October 1947. The Rape Casetrial in February 1948 resulted in their convictions

and incarceration in the New Castle County Workhouse atPrice's Corner to serve mandatory life sentences. I hadacquired my clients officially on January 1, 1953, when I left

my clerkship with Chief Judge Leahy to form a partnershipwith my mentor and preceptor, Philip Cohen. I brought to thefledgling partnership only a few clients. I did not realize thenthe profound effect the case of Curran, Jones and Maguire wasto have upon my practice and, indeed, the rest of my life.

Judge Wright had now found as a fact, as had six Statejudges, that Detective John Rodenhiser had not told the truthat trial. But the State judges, with knowledge of the police per-jury they referred to as "false police testimony," had deniedrelief to them: Charles S. Richards, Charles L. Terry and JamesB. Carey of the Superior Court (each of whom had also servedas a judge in the now defunct Court of Oyer and Terminer atthe trial in February 1948, that court having been replaced bythe Superior Court by constitutional amendment) and ClarenceA. Southerland, Daniel F. Wolcott and Howard M. Bramhall ofthe Supreme Court. State v. Curran, Del.Super., 116 A.2d 782(1955), affirmed, Curran v. State, Del.Supr., 122 A.2d 126,cert, denied, Curran v. State of Delaware, 352 U.S. 913(1956). With President Judge Richards as the exception, five of

WINTER

the six judges condemned DetectiveRodenhiser in unmistakable terms. ButJudge Wright had gone further. For himit was not enough to condemn the per-jury and ignore its effect on the credibilityof my clients at their trial as the Statejudges had done. Judge Wright, a fairlynew Judge of the United States DistrictCourt for the District of Delaware, hav-ing taken the oath of office on August 4,1955, courageously held as a matter oflaw the police perjury had deprived myclients of their constitutional right to afair trial, as I had argued from the time Ifirst entered the case in 1953.

With Judge Wright's decision in hand, Igave thought to seeking the immediatefreedom of my clients by applying for theirrelease on the posting of bail. I decided notto do so because of my concern that tacti-cally it would not be a good move. I didnot think Judge Wright would order theirrelease on bail. After all, he had not foundthem innocent; he had only held their trialwas not a fair one. His opinion and ordercould have ordered their release, since hisruling erased their convictions obtained ina trial he had found constitutionally unfair.But even Judge Wright balked at enforcinghis ruling in full. Instead of ordering theimmediate release of my clients from theirillegal custody in keeping with the literalmeaning of the Latin "habeas corpus" (i.e.,"you may have the body"), he concludedto the contrary:

The writ should issue. The issuance ofthe writ, however, does not precludea new trial or the taking of propersteps to hold the defendants in cus-tody pending such a new trial.

Curran v. State of Delaware, 154F.Supp. at 32.

I knew almost immediately the Statewould appeal to the Court of Appeals forthe Third Circuit sitting in Philadelphia.I thought the fact my clients were still incustody despite the State's violation oftheir rights would itself have a helpfuleffect upon the thinking of the appellatejudges as they considered whether or notto affirm Chief Judge Wright. Moreover,I decided against filing our own appealto the Third Circuit claiming ChiefJudge Wright had committed error infailing to grant the immediate release ofmy clients. My reasoning was the CircuitCourt judges would regard any suchappeal without merit, given JudgeWright's conclusion recognizing theState's right to continue to hold my

clients in custody pending a new trial or,at least, a decision not to retry them.And, worse, die appellate judges mightthink I was trying to put our victorybefore Judge Wright in the face of theState judges, a perception, howevermuch without foundation, might causethe appellate judges "to circle the wag-ons" and defend the State judges byreversing Chief Judge Wright.

Even though as a practical matter Ithought we would not succeed either inseeking immediate release on bail or intaking an appeal, my decision in 1957not to seek my clients' release weighedheavily upon me. If I did nothing, theywould continue to remain in custody.Obviously, it is one thing to dwell uponlitigation tactics and quite another pieceof goods to do the time in custody.From my experience as a prisoner of warin World War II, I knew what it meantto be in custody and, indeed, in jail. Tothis day, I am not certain I made theright decision even though Bud, Sonnyand Reds supported it. At the time, Ithink they would have agreed to any-thing I urged given my successful effortfor them, the first in almost a decade.

On the State's appeal the ThirdCircuit on September 29, 1958, affirmedChief Judge Wright's opinion, holdingthe State had violated my clients' rights attheir trial. Curran v. State of Delaware,3d Cir., 259 F.2d 797 (1958). Unlikemy hesitancy in 1957, I no longer hadany doubt I should make the effort tosecure my clients' release on bail. The1958 factual setting was a far cry fromthat in 1957 intimidating me from act-ing. I now had two Federal courts withfour judges holding the State had violat-ed the constitutional rights of my clients.I would no longer permit my litigationtactics to govern their release. If myclients were to remain in jail, a courtwould have to deny them their freedomthis time. I prepared a petition to set bailfor my clients' release. On October 6,1958, I served my petition on the Stateand filed it with the Third Circuit.

The issue before the Third Circuit onmy motion for bail was whether thechange on April 2, 1958, doing awaywith capital punishment in Delaware,was applicable where the alleged crimehad taken place when Delaware pun-ished a rape conviction with capital pun-ishment, absent a jury's recommendationof mercy and the trial court's acceptanceof that recommendation. At the time ofthe trial in 1948, bail was not available in

Delaware to a person charged with acapital offense. Over the strenuousopposition of Attorney General JosephDonald Craven in briefs and after oralargument, the Third Circuit on October8, 1958, late in the day, granted thepetition and entered its order:

Present: GOODRICH, McLAUGH-LIN and STALEY, Circuit Judges.

Upon consideration of themotion of Irving Morris, attorney forthe appellees in the above entitledcase, and after hearing,

It is O R D E R E D that FrancisJ. Curran, Francis J. Maguire and IraF. Jones, Jr., be admitted to bail inthe sum of five thousand dollars($5,000.00) each, each bond to beconditioned that the appellee willpersonally appear to answer andabide by the judgment in any furtherproceedings which may be takenfrom the judgment of this Courtentered September 29, 1958 affirm-ing the order of the United StatesDistrict Court for the District ofDelaware.

It is Further O R D E R E D thatthe bail is to be approved by the clerkof the United States District Courtfor the District of Delaware.

By the Court,Goodrich

October 8,1958 Circuit Judge

I promptly reported the good newsto the families.

The families and I immediately setabout the business of securing the $5,000bail for each of my clients. I was deter-mined to secure their release from prisonby October 9, 1957, so that they wouldnot spend yet another night of unlawfulconfinement. Arranging for the bail occu-pied me well past midnight and into theearly morning hours of October 9.

There did not seem to me to be anyproblem in the case of Reds Maguire. Ispoke to his parents and they assured meamong family members and friends therewas sufficient equity in real estate tocover the $5,000. Sonny Jones' sister,Jayne Stigliano, told me she would haveno problem, since her husband, Carmen,was a friend of Frank L. Ferschke.Ferschke and his brother, William,owned all the shares of William J.Ferschke, Inc., a private company their

DELAWARE LAWYER 25

father had founded, which made hairtonic using, of course, a secret formula.As a favor to Carmen, Jayne thoughtFerschke would readily help withSonny's bail. She promptly reported hehad agreed to do so.

Bail for Bud Curran was an entirelydifferent matter. Francis and NellieCurran had nine daughters and anotherson, the youngest child. They did notown their own home. I decided to raisewith Jayne Stigliano her willingness togo to bat for Bud Curran and his familywith Ferschke. When I spoke to Jayne,she raised no objection. She said shewould speak to Carmen who, in turn,would speak to Ferschke and, as soon asshe had an answer, she would call me. Itold her I would wait in my office for hercall. It was past midnight when I heardfrom her. Ferschke was prepared to helpthe Currans but, since he did not knowBud Curran, Jayne told me he wantedme to speak to his lawyer, A. JamesGallo, and secure his approval.

Jim Gallo had die largest divorce prac-tice in Delaware. The bulk of the balanceof his practice was trial work in the repre-sentation of defendants in criminal cases.He was known for his skill in plea bar-gaining. I then began the search to findJim Gallo at that hour of the night. Ittook several telephone calls before Ifound him playing cards in what Ilearned was his regular game at the HotelOlivere at 7th and Shipley Streets. Jiminterrupted to talk to me. Given his expe-rience, I did not have to explain much toJim. His question to me was whether ornot I could assure him Bud Curranwould stay in the community and appearwhen called. I had no hesitation in soassuring Jim. With my word to him, Jimsaid he would tell Ferschke to help BudCurran as well as Sonny Jones. (So manymatters went forward upon a simplereliance on one's word in those days.Perhaps with increasing capability toreduce agreements almost immediately towriting with the use of word processingand transmitting the agreements by fac-simile or modem, it is inevitable "one'sword" has given way to "one's writing."I do not hold the view people are lessreliable today. Until I learn otherwise, Iam still willing to rely upon the word ofmost people with whom I deal.) My ela-tion was great. I called the Currans. Ilooked forward to the release of all threemen from custody later that morning assoon as I could make the arrangements.

Everything was in order. Or so Ithought. As soon as I could on the

morning of October 9, acting throughthe Attorney General's office, I alertedthe appropriate people at the New CastieCounty Workhouse to have Curran,Jones and Maguire in the office ofEdward G. Pollard, the Clerk of theDistrict Court, by 9:00 a.m. The Ma-guires assembled the people who weregoing to give bonds with the deeds totheir houses at the appointed time.Through the Stiglianos, I had arrangedfor Ferschke to bring his stock certifi-cates to the Clerk's office to serve as thecollateral for the bonds for Sonny Jonesand Bud Curran. I then called and spoke

Ed knew

more about

the Federal Rules

of Procedure

than anyone I

have ever

met, with

the possible

exception of

J. W. Moore, my

law school

professor, the

author of

Moore's Federal

Practice.

to Ed Pollard to report my success.Ed Pollard was a most unusual

human being. I had first met him inFebruary 1951 when I went to work forChief Judge Leahy as his law clerk. Bythat time, Ed had served almost nineyears as Clerk of the District Court atJudge Leahy's appointment and plea-sure. As a young man, Ed, from his owndescription, had been a wild fellow. Hisfamily came from Virginia and Ed stillretained an easy Southern drawl in hisspeech. Without completing highschool, he had joined the; Army.According to Ed's account of his military

experiences, peacetime service in ourArmy seemed to consist of one barroombrawl after another. A Sunday at thebeach in Wildwood, New Jersey, withEd and his family bore witness to thetruth of his stories. Ed's body was cov-ered with jagged scar after jagged scar.The sharp edges of broken beer bottlesdo not carve with the precision of a sur-geon's scalpel. Ed had married aWilmington girl, Marie Casey, and con-verted to her Catholic religion. Hebecame active in Democratic politicsresulting in his serving and holding thetitle of Administrative Assistant to theparsimonious Senator James M. Tunnell,Sr., until the Judge asked Ed to assumethe position of Clerk of the DistrictCourt upon the Judge's swearing in asthe sole judge of the United StatesDistrict Court in Delaware on GroundHog Day, February 2, 1942. Ed told methe only time Senator Tunnell boughthim a meal was at lunch in the publiclysupported Senate cafeteria on Ed's lastday with the Senator. To pay for bothmeals the Senator extracted with somedeliberation and, Ed thought, somereluctance, coins from a small changepurse he always carried.

After I began my service as theJudge's law clerk, I realized in shortorder Ed knew more about the FederalRules of Procedure, both civil and crimi-nal, than anyone I had ever met with thepossible exception of J. W. Moore, mylaw school professor and the author andeditor of Moore's Federal Practice, rec-ognized as the authoritative text on theFederal Rules of Civil Procedure. Ed wasentirely self-taught. He was also one ofthe most fiercely loyal people I have everhad the delight to know. A lawyer whosought to share with Ed his criticism ofone of the Judge's decisions ran into afirestorm. An unhappy lawyer who didso never did it twice.

It was with more than a fair degree ofpride I reported to Ed Pollard in detailmy accomplishment in securing the bailamount for each of my clients. I told himthe collateral I had arranged to post con-sisted of the equity value of real estatemembers of the Maguire family andfriends owned and, in the case of Jonesand Curran, I had assurances FrankFerschke would come by and depositwith Ed his valuable, unencumbered.shares in the hair tonic company. Thus, Itold Ed, everything was in order for therelease of my clients. Ed told me that wasgreat and he would expect me in a littlewhile. Within a few minutes, Ed called

WINTER

back. He first observed that I must havechecked it out and found everything Iwas doing was fine, implying I wasundoubtedly right and it was he who hadmade a mistake. But he went on to say hehad just looked at the statute coveringthe posting of bail and it appeared to himonly cash or government securities wereacceptable as collateral.

My immediate response to Ed wasabsolute silence. I had been so takenwith my success in the Third Circuit Inever thought to look for a statute con-trolling the bail consideration. Knowingmy "collateral" did not meet the statuto-ry requirement, Ed broke the embarrass-ing silence by saying gently, "Of course,I could be wrong." Ed's reputation atdie Bar was legendary for being able tocorrect and educate a lawyer while at thesame time making the lawyer believe heand not Ed was the source of the knowl-edge. It was quite clear to me Curran,Jones and Maguire would not "hit thebricks" that day short of a minor miracle.The minor miracle was about to happen.

It was not news to Ed Pollard when Itold him Curran, Jones and Maguire andtheir respective families had neither cashnor government securities to post as bail.I did not have to tell Ed how heart-breaking it would be to my clients andtheir families to come so close to free-dom after almost eleven years in custodyonly to be turned aside because of thelack of money. Neither he nor I men-tioned my embarrassment in having totell my clients and dieir families the bailconsideration, for which they hadarranged with my approval and encour-agement, did not meet die requirementsof a statute I had not even thought tolook for, let alone to consult.

Ed then told me what we were goingto do. Since the United States Court ofAppeals for the Third Circuit in its augustwisdom in its order granting bail hadentrusted to him as "the Clerk of theUnited States District Court for theDistrict of Delaware" die responsibility forapproving the bail for the future appear-ance of Curran, Jones and Maguire, heconsidered it well within his discretion todetermine what was or was not acceptableas bail for his approval. He ended our con-versation by telling me he expected to seemy clients and me at the appointed time,then but a few minutes away.

I garnered my papers and walked dieblock from the small office I shared withPhilip Cohen in the North AmericanBuilding at 10th and Market Streets tothe Post Office Building housing the

United States District Court on die sec-ond floor at 11th and Market Streets. Inthe Clerk's office, I found the Currans,with Bud's aunt and uncle, Mr. and Mrs.Frank X. McHugh, who had agreedunbeknownst to me to put up theirhouse with their equity in it as collateralfor Bud's bond, making unnecessaryreliance upon the Ferschke stock. SonnyJones' sisters, Virginia McKinley andJayne Stigliano, Jayne's husband Carmen,and Frank L. Ferschke were diere. TheMaguires, Red's brother, Edward J.Maguire, who put up bail for Reds, alongwith Joseph V. Segner, a friend of Red'sfather, who would join with young EdMaguire to provide the collateral forRed's bond, completed die group.

From the family members, I learnedmy clients were already in United StatesMarshal Herbert Barnes' custody (hewas a former Superintendent of die StatePolice) in die lockup at die end of diecorridor on the second floor whereguards from the New Castle CountyWorkhouse had brought them to awaitthe proceedings before Ed Pollard andtheir expected release. I met widi Ed inhis office. On Ed's desk were the variousdeeds to the houses Ed had collectedeven before I arrived so he could com-plete the paper work in his customaryefficient style. I witnessed Ferschke's sig-nature to the bond Ed had prepared andFerschke executed assigning to Ed hisshares in the hair tonic company to bindSonny Jones' appearance:

I hereby assign, set over andtransfer to Edward G. Pollard, ClerkUnited States District Court for theDistrict of Delaware, 250 shares ofthe capital stock of William J.Ferschke, Inc. a corporation of dieState of Delaware, represented bythe attached certificate, to be heldby the said Edward G. Pollard, asClerk aforesaid, subject to the con-ditions of the Bond which I signedbefore the said Edward G. Pollard,Clerk as aforesaid, on October 9,1958, in the matter of Francis J.Curran, et al. v. State of Delaware,No. 12,397, United States Court ofAppeals for die Third Circuit for IraF. Jones, Jr.

Dated: October 9,1958.In die presence of:/s/Frank L. Ferschke (SEAL)/ s / Irving Morris

Even before my arrival, Ed hadopened to a new page in die Miscellan-

eous Docket and made the entry suffi-cient to reflect the action he was taking.He then called the Marshal's Office andinstructed the Marshal to bring Curran,Jones and Maguire to his office so tiieycould sign the papers promising toappear upon command of the Court.When diey arrived, Ed explained to myclients the procedure, including themeaning of die promise they were aboutto make by signing the papers he hadprepared. Failure to appear upon theCourt's command would result in theforfeiture of the bail with the catastroph-ic effect upon the families and friendswho trusted diem. Ed was fastidious inexplaining obligations and rights.

As he waited his turn to sign thepapers, Reds Maguire fished in his pock-et for a pack of cigarettes and before helighted die cigarette he asked a guard ifit was alright for him to smoke. Theguard answered: "You do as you please.You're on your own now." It obviouslywas going to take some time for Curran,Jones and Maguire to acclimate them-selves to life outside of jail free of itscompulsory rules and regulations andconstant supervision.

Within a few minutes after they hadsigned their names, my clients went fromEd's office to the outer office of theClerk where tiieir families awaited them.It had to be an emotional time for all ofthem. I did not witness it, since Ithought I should leave diem to embraceeach other without my presence. I didnot want to intrude upon them. I leftEd's office by his corridor door andwalked back to my office.

On die day of their release from cus-tody, Curran, Jones and Maguire hadeach spent twenty days shy of elevenyears behind bars for a crime they deniedunder oath ever having committed andthe State had never proved at a fair trial.

My clients were not out of the woodsyet. Ahead was die State's filing of a peti-tion to die United States Supreme Courtfor die issuance of a writ of certiorari toreview the action of the Third Circuit asAttorney General Craven had promised.Even if the State did not file for certiorarior was unsuccessful with its petition forcertiorari, the State still retained the rightto retry them on the rape charge. Myclients' promise, secured by the bail, torespond to the Federal court's commandto appear was not an idle one. In State ofDelaware v. Theodric Thompson, Cr. A.107 - 1957 (unreported), a jury hadconvicted Thompson of murder at his1957 trial but did not recommend

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mercy. Nonetheless, the Superior Courtat Thompson's sentencing on April 15,1958, applied the new statute abolishingcapital punishment retroactively and sen-tenced Thompson to life imprisonment.The best result I could achieve for myclients were we to be successful wouldonly reverse their convictions and sen-tences but the State could still retrythem. If Thompson were followed as Iexpected it would be, my clients wouldno longer face the death penalty uponconviction at a retrial. But they wouldface a return to prison and their lifeterms. Throughout my representation ofthem, however, neither Curran, norJones, nor Maguire ever flinched frompursuing a new trial even when theyknew full well prior to Thompson thedeath penalty confronted them uponsubsequent conviction.

But now with their bail for their appear-ances posted, my clients were back withtheir families beginning the task of rebuild-ing their lives while the possibility of con-tinued prosecution hung over their heads.

Ed Pollard, of course, dutifullyreported on October 9, 1958 to IdaCreskoff, the Clerk of the Third CircuitCourt of Appeals, that Curran, Jonesand Maguire had come before him "withtheir sureties and I approved the bail" ina letter that was not as detailed as itmight otherwise have been:

Ida O. Creskoff, ClerkU. S. Court of Appeals2046 U. S. Court HouseNinth & Chestnut StreetsPhiladelphia 7, Pennsylvania

Re: Curran, et al. v. State of DelawareHabeas Corpus No. 12Circuit Court No. 12,397

Dear Mrs. Creskoff:

In accordance with the CircuitCourt's order of October 8, 1958,the above defendants were broughtbefore me today with their suretiesand I approved the bail. I under-stand from Mr. Morris that you stat-ed you had no facilities for keepingsecurities, etc. Accordingly, I assumeyou would want me to retain thebail bonds and any securities thatwere pledged. If I am incorrect inthis assumption and you shouldwant the bonds sent to you, I wouldappreciate your so informing me.

I acted on an uncertified order.If you think a certified copy of theorder is necessary, I would appreci-

2 8 WINTER

ate your sending me one.

Yours truly,/ s / Edward G. PollardClerk

EGP:RMPcc: Irving Morris, Esq.Richard J. Baker, Esq.,Deputy Attorney General

But then the Third Circuit's order didnot request detail. The Court left thematter to Ed's good judgment.

I knew I had let Ed down by notchecking the statute. A good, thoroughlawyer would never have done what Idid and assume anything of valuewould qualify as bail to secure anappearance in court when called. Edknew, as well as I did, there was noway, even if I had read the statute, thatI could have done anything to securethe immediate release of Curran, Jonesand Maguire given the unequivocal lan-guage of the statute. Cash to meet therequired $15,000 total bail was beyondthe collective means of Curran, Jonesand Maguire and their families. Neithermy clients nor their families knew aboutgovernment bonds (except, of course,the war bonds of World War I I ) .Surely, I could not have met my goal tosecure the release of my clients that day.Under no circumstances, of course,would I have suggested to Ed Pollardthat he accept as bail property outsideof the statutory language defining per-missible bail in 1958. Ed did not sayanything to my clients or their familiesof my failure to know the law and,worse, my failure to take the few min-utes to do the research to learn what itwas. So far as I know Ed never toldanyone how he saved the day for me.

It was not until the Bail Reform Actof 1966 that Congress led by SenatorSam Ervin struck down "the chief evil ofthe old bail system [with its] automaticreliance on monetary bail with the resultthat indigent defendants remained incustody while their wealthier counter-parts were set free." See Allen v. UnitedStates, D.C.CtApp., 386 F.2d 634, 637(1967). As in so many other areas of thelaw, Ed Pollard was but a little bit aheadof his time in accepting the hair tonicstock as part of the consideration for thebail bonds enabling all of my clients "tohit the bricks" on October 9,1958. •

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November 9,1999

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6. A University of Delaware graduatestudent in medieval studies, when askedto write a thesis about the "guild sys-tem," turns out a 60-page history of theDelaware corporate bar.

7. After almost 40 years of whiningand bellyaching by its members, theDSBA finally abolishes mandatory CLE.As a result, July 31 loses all significancefor Delaware lawyers, with the possibleexception of those whose monthly beachrentals expire on that date. Ecstaticlawyers dance in the streets, burning theiraffidavits of compliance in celebration.

8. Due to an influx of retirees, there isa boom in "elder law" in Sussex County,and New Casde County law offices rushto open branches diere. Georgetown andRehoboth Beach run out of office spacealtogether. Enterprising residents rake insubstantial profits by renting out theirbasements and grain silos at a premium.

9. Kent County fends off a hostiletakeover bid by its northern and south-ern neighbors. The Levy Court tri-umphantly credits its novel "RaceWeekend" defense.

10. After years of reflection, some-body finally realizes that DelawareRepublicans and Delaware Democratsare actually clones of each other, andthe parties agree to merge, with thepredictable ripple effects throughoutthe State's constitutional, political andjudicial systems. In revenge, JesseVentura and the Reform Party declarethat they will not campaign inDelaware in 2028. Nobody cares.

11. Some things never change: Dela-ware still loves its incumbents. Joe Biden,Bill Roth, Ruth Ann Minner, TomCarper, Mike Casde and Tubby Raymondall continue to hold statewide office.

12. In response to an announcementthat the number of licensed attorneys inDelaware has passed 5,000 for the firsttime, the Board of Bar Examinersannounces that, effective that year, ascore of 90% will be required to pass thebar examination, and repeat attemptswill no longer be permitted for unsuc-cessful candidates. The "pass rate" dropsto 10%. Antilawyer forces throughoutthe State are jubilant.

13. Delaware's last piece of farmlandis sold off to a developer, and the State'szoning and land use practices disappear.

14. The new Justice Center is finallycompleted and occupied. Immediately, thetenants complain about the lack of space.

Now, what do you all think? •

30 WINTER 1999/2000

Some Highlights of the Past Century1897: Charles B. Lore became first Chief Justice of Delaware under 1897 Constitution •Delaware Constitution substantially revised; groundwork laid for modern corporation law

1899: First Delawarean (George Gray) appointed to new Third Circuit Court of Appeals •Arthur W. Spruance appointed as 1st referee in bankruptcy • General Corporation Law enacted

1901: Delaware State Bar Association (DSBA) formed • Delaware first elected its attorneygeneral (Herbert H. Ward)

1906: Victor B. Woolley published Practice in Civil Actions and Proceedings in the LawCourts of the State of Delaware

1909: James Pennewill became Chief Justice of Delaware • Charles Minot Curtis becamechancellor of Delaware

1912: First Jewish lawyer (Aaron Finger) admitted to Delaware bar

1913: John Paul Laffey became first general counsel to E.I. du Pont de Nemours & Company

1914: Victor B. Woolley appointed to Third Circuit Court of Appeals

1919: Hugh M. Morris appointed to United States District Court for the District of Delaware

1920: Zane's Story of the Law published

1921: Josiah O. Wolcott became Chancellor of Delaware ^*- ** "^ . v ~ -.-

1923: Delaware Constitution amended to prohibit disqualification from the practice of lawon the basis of gender • First 2 women (Evangelyn Barsky and Sybil Ursula Ward) admit-ted to Delaware bar • First book on Delaware corporation hw{Delaware Corporations andReceiverships by Josiah Marvel) published

1966: Collins J. Seitz appointed to Third Circuit Court of Appeals • William V. Roth, Jr.,elected to United States House of Representatives • William Duffy appointed Chancellorof Delaware

1967: Delaware General Corporation Law substantially revised

1968: Clients' Security Trust Fund, predecessor of the current Lawyers' Fund for ClientProtection, established by the Delaware Supreme Court • James L. Latchum appointed toUnited States District Court for the District of Delaware

1969: Sussex County Courthouse expansion completed

1970: Orphans' Court abolished • The Legal Aid Society and Community Law Servicemerged and became Community Legal Aid Society, Inc. • Family Court of the State ofDelaware for New Castle County and Family Court of the State of Delaware for Kent andSussex Counties merged into the Family Court for the State of Delaware

1929: First person of color (Louis L. Reddirig)"admitted to Delaware bar

1931: Supreme Court assumed responsibility/or b'ir admissions ̂ and appointed firststatewide Board of Bar Examiners I :* " ~~"-^

1933: Daniel J. Layton became Chief Justice of;Delaware . , '^ /

1937: John Biggs, Jr. appointed to Third Circuit Court of Appeals " • " ' *

1938: William Watson Harrington became Chancellor of Delaware *,Charles L. Terry, Jr.appointed to Superior Court / ' -< . . « . , - > • • - ™ " " * * " * "

1939: George Burton Pearson, Jr. became first Vice Chancellor of Delaware .. Z ;'-•'' "'

1941: Paul C. Leahy appointed to United States District Court fo.r the .District of Delaware;

1945: Charles S. Richards became Chkf Justice of Delaware • Legislature created the FamilyCourt for New Castle County ' " ' • ' ' " " • ' - " / '

1946: Legal Aid Society of Delaware incorporated • Collins J. Seitz appointed ViceChancellor • Richard S. Rodney appointed to United States District Court for the District *of Delaware / \ „

/ • - . , • .

1947: Delaware Superior Court adopted'new Rules of Civil Procedure modeled on theFederal Rules / , ' -

1948: Elbert N. Carvel elected Governor of Delaware * Alexis I. duPont Bayard electedLieutenant Governor of Delaware / ' :*< - •"

t1949: First person of color (Louis L*. Redding) allowed to join DSBA - ' • ,

1950: Vice Chancellor Seitz orders desegregation of University of Delaware (Parker v.University of Delaware) • Daniel F. Wolcott became Chancellor of Delaware • LouisRedding filed first of public schools desegregation law suits • H; Albert Young became'-'attorney general | . -'•--.

1951: Delaware became the last state in the Union to form a separate Supreme Court •Chief Justice Clarence A. Southcrland became first Chief Justice of separate DelawareSupreme Court • Collins J. Seitz appointed Chancellor of Delaware , : ,

1952: Chancellor Seitz's landmark, decision in Belton -R Gtbh&rt integrated public schools •J. Caleb Boggs elected Governor of Delaware - , - ' . > •• ,.

1954: Chancellor Seitz*s- decision in Belten V. Qebhart affirmed by U.S. Supreme Court •Caleb M. Wright appointed to United States District Court for District of Delaware - -;

* . • ' " . . -

1955: Family Court of New Castle County and Family Court for Kent and Susses '< •* . . \,Counties became state courts \ * ' l ~ . ' ' • ' . t

1956: Caleb R, Layton, III, appointee^ to United States District Court for the Districted Delaware \t

1957: Edwin D. Steel, Jr. appointed to'United States District: Ckmrt for theDistrict of Delaware .

1958: John J. Williams elected to, United States Senate ' " : ' ,

1960: J. Caleb Boggs elected-to United States Senate • Charks L. Terry, Jr. appointed to -Delaware Supreme Court" *,. - - . .

1961: First minority judge appointed in State (Sidney Clark, Sr., to the WilmingtonMunicipal Court) *"-. ' "'

1963: Charles L. Terry, Jr. appointed Chief Justice of Delaware Supreme Court • DelawareChapter of Federal Bar Association formed • First Delaware firm to open satellite office (Cooch& Taylor in Newark) f • >' " ••.,t' . ,

1964: Charles L. Terry, Jr. elected Governor'of Delaware • The Office of tht.PublicDefender created by General Assembly • Daniel F.1* Wolcott became Chief Justiceof— V.. ^Delaware Supreme Court <f

1965: Justice of Peace Courts brought into state court system

'Xa.wa.rt Corporation Law by Ernest Folk published • Joseph R. Biden, Jr.,elected to United States Senate

1973: First woman (Jane Roth) made partner in a major Delaware law firm • Judge MurraySchwartz issued school busing order • Multistate bar exam first administered in Delaware •Daniel L. Herrmann became Chief Justice of Delaware Supreme Court • William Duffyappointed to Delaware Supreme Court • William T. Quillen appointed Chancellor of

"^Delaware *,Grover C Brown appointed Vice Chancellor and later served as Chancellor •—Three Courts of C&mmon Pleas merged into one statewide Court of Common Pleas

1974: First woman (Helen £.'.Balick) appointed Bankruptcy Judge for District of Delaware

1975: Jurisdiction over divorfce,°*annulment and ancillary matters transferred from SuperiorCourt to Family Court "| \ £r

1976: First Hispanic (Aida Wasersteiri, Cuban-American) admitted to bar • Delaware TrialLawyers Association formally created • William Marvel appointed Chancellor of Delaware• Mclson formula adopted as-official staftdard for calculating child support obligationsunder the name^Delaware Child Support Formula • Louis L. Redding City/County

™ Building completed

1977t First African-American woman (Paulette Stillivan Moore) admitted to bar • First*, African-American to hold cabinet position (James H. Gilliam, Jr. — Secretary of the

Department of Community Affairs and Economic Development) • Women and the LawSection of DSBA formed • First master appointed to Family Court

. -1978: First out-of-state law firm to open Delaware office (Tomar, Simonoff, Adourian and O'Brien)>" First legal" clinic opened in Delaware (The Legal Clinic of Cawley, Schmidt and Sharrow)

1980" Adoption and termination-of-parental-rights proceedings transferred from SuperiorCourt to F-amiry Court •' . -" , •

1981:'Delaware.Bar Foundation formed • ? " --~\w •

1982: Firsr African-American (Darrell J, Minott)"t.o clerk for Delaware Supreme Court •First issue of Delaware Lawyer published •'•Delaware Volunteer Legal Services, Inc., began

* operations^, • ,, ' \

1983: Delaware IOLTA (Interest o« Lawyers' Trust Accounts) program began

1984: First Native American (Kenneth S. Clark, Jr.) admitted to bar • First woman (CarolynBerger)'appointed to Court of Chancery • Superior Court Rule 16.1, mandating non-bind-ing arbitration, adppted • ' , : , : • ' ' \

1985; Richard S. T&odney Inn of Court began • Andrew D. Christie became Chief Justiceof Delaware Supreme Court • William T,'Alien appointed Chancellor of Delaware • JackBl Jacobs appointed Vice Chancellor • Walter K. Stapteton appointed to Third Circuit

'. Court of Appeals • First woman (Jane K. Roth) appointed to United States District Court for.the District of Delaware \ „ - -*

1986: Supreme Court adopted mandatory continuing legal education rules

1987: First woman (Susan C. Del Pesco) appointee! President of DSBA • Joseph R, Biden,Jr., became chair of U.S. Senate Judiciary Committee |

1988: Susan C. Del Pcsco became first woman appointed to Superior Court

. * 1989: William B. Chandler, III appointed Vice Chancellor • First televised Delaware civil, case: oral argument in Paramount p. Time Warner

1990; First African-American (Charles H. Tofiver, FV) appointed to Superior Court • First;, Africart-Ameriean elected to row office position. (Paulette Sullivan Moore — New Castle\ County Recorder of Deeds) ' . * /

1991: Terry-Carey Inn of Court formed * jane R. Roth appointed to Third Circuit Court of" Appeals • Sue L. Robinson appointed to United States District Court for the District of Delaware

1992: First Afncan-American woman (Halle L. Arfbni) appointed to Superior Court •Michael K. Castle elected to United States House of Representatives • First woman/T-* - ^ - ^ ^ t * _ - Y Y - _ L - . ~ - . t l r t l : _ . - _ . _ \ * . ! _ _ * _ A r \ - I - . . _ . . _ Y . _ _ _ _ ^ _ . __ /~* _ - - ? _ - . _ T 7 ! * - .

; - Court • Wilmington courthouse renamed Daniel L. Herrmann Courthouse • First for-- "• eign-born person (Roderick B_ McKelyie) appointed to United States District Court for the

District of Delaware ~ ' "

'. Fkst woman magistrate (Patricia W. Griffin) appointed to Justice of Peace CourtPeter J. Walsh appointed Bankruptcy Judge

1994: First woman (Carolyn Berger) appointed to Delaware Supreme Court

1998: First African -American (GregoVy Mt Sleet) appointed to United States DistrictCourt for the District of Delaware •* \

* \1999: Ground is broken for the new New Castle County Courthouse in Wilmington

DELAWARE LAWYER 31

IN THE YEAR 2 5A "SNEAK PREVIEW"OF THE FIRST STATE

AND ITS LAWYERS

Vernon R. Proctor

A bout 30 years ago, some obscurerock group whose name I can'tremember churned out a songcalled "In the Year 2525." The

first three lines of that bleak ballad wentas follows:

In the year 2525If man is still aliveIf woman can survive...

The banal lyrics from that point for-ward were, as I recall, progressivelymore pessimistic about the future ofour species. Each new verse "skipped amillennium" to describe some new andthreatening event in human technologyor biology. Hardly the type of songthat was likely to inspire confidence ina teenager who was about to beuprooted from a comfortablePhiladelphia suburb into the wilds ofHouston, Texas, with its shoppingmalls, crazy accents, Friday night foot-ball and bouffant hairdos.

Now, a generation later, I have beeninspired to "stargaze" and to predicthow the Delaware State Bar Associationand its manifold components — courtsystems, law firms, attorneys and vari-ous hangers-on — might look in theyear 2025. Having ruminated carefullyon the matter over breakfast and coffee,I offer the following intrepid predic-tions. My editors told me that every-thing was fair game except sittingjudges and dead relatives. I will take theliberty of speaking in the present tense.

1. In 2025, the ranks of die DSBA

are more than 50% female. The result ofthis development is greater efficiency,enhanced collegiality, and a more sophis-ticated approach to complex legal issues.In short, a better world for all con-cerned, except for a few troglodytes whodon't count for much.

2. Faced with a looming financial cri-sis, the DSBA makes a mint with its"down with civility" T-shirts. A two-word variation on this theme is marketedsuccessfully in the 700 level of VeteransStadium at Eagles games.

3. For the first time, a majority of themembers of each Delaware constitution-al court are alumni of a single firm. Indecorous celebration, that firm's initialsare cross-stitched onto the hem of eachjudge's robe.

4. While Delaware's unique judicialselection process survives unscathed, thenominations for individual judges andjustices become increasingly competitive.Successful candidates are, required to wina debate on talk radio.

5. Despite relentless poaching byPhiladelphia firms anxious to "grow"their satellite offices, the state's top ten"native" law firms thrive and prosper,earning record profits in the traditionallystrong fields of business law, litigation,bankruptcy and intellectual property.One well-traveled attorney sets a localrecord by hooking up with his tenthPhiladelphia law firm in as many years."Just one more sticker on the briefcase,so far as I'm concerned," he cracks."And one more rollover on the 401K."

Continued on page 30

WINTER

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