Document Type

Article

Publication Date

6-2022

Abstract

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s “nonpartisan” approach to its judiciary. The case raises the question of why nonpartisanship is considered to be an advantage for Delaware and whether the processes by which corporate law are made are generally politically partisan or not. Despite these developments, however, the place of political partisanship in corporate law has been largely overlooked.

Comments

Originally published as Eldar, Ofer and Gabriel V. Rauterberg. "Is Corporate Law Nonpartisan?" Wisconsin Law Review 2023, no. 1 (2023): 177-236.

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