By Anna Pan C’14
On February 15, an alumnus of Penn Law, Leo E. Strine, Jr. L’88, Chancellor of the Delaware Court of Chancery, addressed students, faculty, and jurists in Penn Law’s Levy Conference Center to take on the issue of judicial restraint versus judicial activism. His speech, titled “Regular Order as Equity,” was hosted by the Law School’s Institute for Law & Economics’ (ILE) as part of their annual Distinguished Jurist lecture series.
Chancellor Strine, an adjunct professor at the Law School, Harvard and Vanderbilt Law, joined the Court as Vice Chancellor in 1998 at the age of 34, and was named Chancellor last June. The Delaware Court of Chancery is recognized as the world’s preeminent forum for business and corporate law and dispute resolution.
Strine began his address with a wry explanation of why he believed ILE should change its name.
Strine noted that while judges use “imperfect tools,” he asserted “we have to try to provide justice equitably” by using such methods as standards of review and principles of interpretation “consistently in like cases, and to avoid deviating from them when political pressures or other factors create a temptation for one-off situational departures.”
By adhering to regular order, Strine said, “the judiciary does the most equity, because it upholds the reasonable expectations of citizens in a society governed under law that accords a high level of procedural due process, and that now enables all its citizens a fair opportunity” to participate in a democracy.
Equity emerged in the law, he explained, “as a gap-filler to do justice in a world of unevolved institutions, and where not all people were treated the same way in similar circumstances.” And it continues to play “a vital role as a gap-filler and as a key default protection in relationships where one party is given broad discretionary authority over the property and rights of others,” Strine said.
|Chancellor Leo E. Strine, Jr. L’88|
But, he argued, an “equitable impulse” is not license for judges to impose personal views of what the “right” outcome in cases should be, “thereby [enabling] litigants who have failed to follow procedural rules or to obtain the contract they wanted at the bargaining table, to get a result from a court that is at odds with what regular order would have produced.”
Moving into the realm of civil procedure, Strine noted, “I do not grasp the equity of excusing litigants from compliance with the rules.”
One context where a judge’s “personal predilections to do situational justice” presents a danger of inequity, he said, is when judges are asked “to address claims that a commercial party’s conduct, despite not being prohibited by the express terms” of a contract, is instead prohibited by its interstices, or gaps.
“When judges twist interpretative doctrine to shape case-specific results, they do not do equity in its true sense,” Strine said. “They give certain parties more than is due to them, and undermine the reliability of voluntary contracts for all.”
In the corporate law context, Strine explained that the “equitable overlay to American corporate law is part of its genius,” and is “the key to allowing directors to manage corporations under broad enabling statutes rather than highly prescriptive codes.”
But because much of corporate law “involves judicial articulations of fiduciary duty principles,” he said, “judges caught up in the moment sometimes mistake their role.”
Strine said “judges who do not show respect to the legitimate authority of the legislative and executive branches threaten equity in a fundamental way, by undermining the rule of law itself.”
Policy battles, Strine asserted, “should be won at the ballot box, in the electoral and legislative process.”
During his introduction of the speaker Penn Law Dean Michael A. Fitts described Strine, a former Law School student of Fitts’, as “one of the leading corporate law figures in the United States and respected judges on the bench.”