Professor Bainbridge...on law, politics, religion, culture & food

Chancery Verbosity

Francis Pileggi summarizes the Delaware Chancery Court’s recent opinion in Hexion Specialty Chemicals, Inc. v. Huntsman Corp., which is interesting for its interpretation of a material adverse effect clause. I commend the summary to M&A types in the audience. I simply want to note a minor point. Francis explains:

As I did for the 100-page Chancery decision I summarized a few days ago on this blog, the only practical way to highlight this 91-page decision in an appropriate length for a blog post, is to use bullet points for selected key parts of the decision and then encourage readers to download the whole opinion at the link above if the issues addressed are of interest to them.

Which prompts me to ask: What is going on in Delaware these days? Opinions are bloating to unconscionable lengths. For goddness’ sake, Brown v. Board of Education took only 16 pages to right 100 years of racial injustice and change the way hundreds of school districts did business. Surely then you can resolve a material adverse effect clause in something less than 91 pages!

The bloat affecting Delaware jurisprudence is especially striking when one compares the length of some of these opinions to the Chancery Court’s own rules on the permissible length of briefs:

Without express permission of the Court, no main or answering brief shall exceed 50 pages, and no reply brief shall exceed 30 pages, in each instance exclusive of tables of contents and citations.--Rule 171(f)

If the lawyers have to make do with 50 pages, shouldn’t the court do likewise? Set a good example and all that.

I note this point because, unlike Francis, who as a blogger can content himself with bullet points, in my capacity as a case book editor I have to cut these behemoths down to a manageable size. It’s a task that’s becoming increasingly difficult. Indeed, recently I simply had to punt on trying to edit a new Delaware opinion down to a length viable for inclusion in our case book. Once I passed the 100 ellipses mark, I gave it up as a bad job all the way around.

Memo to Delaware jurists: If you want your case to make it into the case books, short and sweet is the way to go. Leave the verbosity to us academics.