Ryan v. Lyondell Chemical Company and Waiver of Liability Provisions (Interlocutory Appeal Denied)(The Need for Gender Diversity and Gender Neutrality)

One of the things we in the ivory tower like to stress is the need for students to act in a gender neutral manner when writing briefs or making arguments.  After all, the days when the bench was a male dominated bastion are largely over.  Insensitivity to the issue can, therefore, be embarrassing. 

But not all courts are in fact particularly diverse when it comes to gender.  Delaware is a good example.  The Delaware Chancery court has five Chancellors, all men.  The Delaware Supreme Court?  Five Justices, one woman.   So,about 25% of all lawyers, and 44% of all law students, are women, but in the most important corporate law court in the United States, there is only one.  Indeed, it's roughly the same percentage as the number of women in public company board room (13%).

Which leads us back to the lessons from the ivory tower.  VC Noble's opinion in Lyondell could have used a good editor with an eye toward gender neutrality.  In his opinion, he uses the male gender when making a generic point.  Thus, in footnote 39, VC Noble explains:

• "Yes, undeniably, the directors, in this instance, managed to achieve a good result, but a fiduciary’s discharge of his duties and obligations are not judged merely by the result he achieves." (emphasis added)  Sometimes writers alternate genders but this is not the case in Lyondell. 

The only example?  Not quite.  There was also this one in footnote 17:   

• the Court’s decision, as Ryan correctly points out in his brief opposing certification of an interlocutory appeal, will in no way impede a properly motivated and unconflicted corporate director who attempts to discharge his fiduciary obligations in good faith from successfully asserting a Section 102(b)(7) defense on a fully developed summary judgment record (or at any other proper procedural state, for that matter).  

Perhaps if the bench in Delaware were more representative, these things wouldn't happen.  Perhaps if they were more representative, the decisions wouldn't be so consistently oriented against shareholders.

The opinion and some of the pleadings can be found at the DU Corporate Governance web site.

Comments

[Otto]

There is unquestionably a need for better diversity in the boardroom, in the bar, and on the bench (in Delaware and every other state), but you trivialize that need with childish sniping like this post. To suggest by highlighting three pronouns in two footnotes of one opinion that a respected and experienced jurist is exhibiting prejudiced or sexist behavior is unprofessional and irresponsible. It is particularly galling for you to expect the chancellors to throw more words in their opinions given that you have previously criticized the Court of Chancery for writing excessively long decisions. Would it have been preferable to be gender neutral? Certainly. Is the failure to be gender neutral in two footnotes a substantive problem with the merits of this decision? Certainly not. I suspect the court and your fellow academics might take you a bit more seriously if you wrote more serious posts. There is plenty to criticize in corporate law without resorting to nitpicking like this. Perhaps if you would stick to substantive, meaningful comments, you wouldn't be forced to cite yourself every time you need authority to back up one of your assertions.

[J. Robert Brown]

Otto:

You and I disagree on this issue, that is clear enough. I think it is not too much to ask judges to write in a gender neutral fashion. You apparently do. There is a recent opinion by VC Strine (Lear I think) that was written in a gender neutral way. As for trivializing the opinion, I wrote four posts on the substance of the opinion. The gender neutral comment was only one last observation.

Jay