A Modest Proposal for Fixing Delaware’s Broken Duty of Care

Abstract

This paper proposes that Delaware could improve on existing, ineffective judicial mechanisms enforcing the duty of care by upgrading the ability of Delaware Chancery Court judges to comment on the quality of board decision processes. I suggest two possible reforms. First, Delaware Chancery Court judges could, in their discretion, award attorneys’ fees to unsuccessful plaintiffs in duty of care cases. Second, Delaware could authorize judicial inquiries into credible allegations of gross negligence in board decisions.