There have recently been three excellent working papers on the problems facing Delaware corporate law—one by Professor Charles Whitehead, one by Professors Marcel Kahan and Ed Rock, and one by practitioners Greg Varallo, Andrew Blumberg, and Ben Potts. In all three, the authors accurately identify the threat to Delaware corporate law as stemming from what Professor Whitehead calls “second-order agency problems” that arise when lawmakers are unable to create effective and efficient rules due to upstream pressures. All agree that Delaware’s current lawmaking process does not prioritize a body of corporate law that seeks efficiency, much less one that serves the public interest of Delaware or America.

All also agree generally on the solution: Reform the private Corporation Law Council (“CLC”) currently empowered to draft and sponsor corporate law bills. There are some differences: for example, Professor Whitehead’s recommendations center on transparency, professors Kahan and Rock focus more on who is empowered to make the law, and Varallo, Blumberg, and Potts, like Kahan and Rock, argue that the CLC membership should be a vital part of any reform.

But how do we get to there from here? The aforementioned papers suggest that the CLC could voluntarily adopt some reforms, and if necessary, the Delaware General Assembly could mandate others. There is reason to think, however, that the pressures that led the CLC to propose and the General Assembly to pass questionable bills will also lead them to resist reforms.

The Delaware Supreme Court is perhaps best positioned to make the decision. The CLC and the Delaware State Bar Association of which it is a part are private, voluntary associations. Neither the CLC nor the DSBA are groups sanctioned by the regulatory arm of the state bar, the Delaware General Assembly, or the Delaware Supreme Court. There is no direct governmental or regulatory oversight of the substantive activities of these bar associations or their suborganizations.

Yet the supreme court of each state has the authority to regulate the practice of law. And that supreme court can decide whether to regulate the state bar association or allow the association to police itself. The Delaware Supreme Court can thus not only make the bar mandatory, but also regulate the bar’s various organizations and committees, including the CLC or its successors. In addition to setting the membership and processes of the CLC, the Delaware Supreme Court can also sanction would-be attempts to end-run any procedures – as was arguably in the case with SB 21 – by, say, requiring that Delaware-barred attorneys who engage in legislative lobbying identify themselves as such rather than as neutral parties on penalty of attorney discipline.

How can we be certain that the Delaware Supreme Court will be a better regulator than the current CLC or the political branches of the Delaware state government? We cannot. With sufficient Caryian cynicism, we might conclude that the Delaware Supreme Court is as corruptible as any other group, given that its members are ultimately appointed by the Governor of Delaware on advice from the Delaware Judicial Nominating Commission (which in turn is composed of 11 people appointed by the governor and one person appointed by the President of the DSBA). And of course, the learned corporate law practitioner is well-aware of decisions in which the Delaware Supreme Court seemed to have bowed to outside influences.

But if nothing else, this debate shows that Delaware jurists can and do make decisions that reject the pressures affecting other Delaware bodies. Moreover, some of the forces that would harm corporate law may well be transient, at least if those forces cannot gain a foothold and entrench themselves in the law. And in that, members of the Delaware judiciary are appointed for 12-year terms, among the longest in the country. This insulates jurists from short-term fashions that might affect legislators elected for two- or four-year terms. Likewise, at least for their term, Delaware jurists have no paying clients and no firm compensation committees to whom they must justify their actions. There are, therefore, both empirical and structural reasons to think that the Delaware courts are the best positioned to make the structural reforms necessary to preserve the republican features of Delawarean – and American – corporate law.

James An is an assistant professor at Suffolk Law School.