Tell us about the process by which you became a justice.
There are five justices on the Delaware Supreme Court. The Delaware Constitution requires balance between the two major political parties within the court. All Delaware judges, including justices, are appointed by the governor for a 12-year term and must be confirmed by the Senate. Since 1978, each Delaware governor has established a Judicial Nominating Commission by Executive Order. The members are divided between lawyers and laymen and also divided by political party. The Commission recommends three names to the governor for each judicial vacancy.
The confirmation process in Delaware is very professional. If there are any problems with a nominee, they are addressed with civility. My appointment was not controversial even though I had never served as a trial judge and was relatively young at the time.
Please describe your court for us.
The Delaware Supreme Court is the highest court. There is no intermediate court of appeals. The Supreme Court must hear all direct appeals from a final judgment in the three major trial courts: the Court of Chancery, the Superior Court, and the Family Court. As a result of this mandatory jurisdiction, we have one of the highest caseloads in the United States.
One characteristic of our court is known as the “Delaware Unanimity Norm.” This refers to the fact that for the last 60 years, 99 percent of our decisions have been unanimous. This is a result of not being able to choose the cases that come before us and by narrowing the holding in those cases. In the 1 percent of the cases that are not unanimous, we never divide along any discernable lines. During the last 60 years, every member of our court has written one or more dissents. The separate opinions serve to strengthen the force and effect of the unanimous opinions.
Delaware has a reputation for being a leader in the development of business and corporate law. How does your work on the court reflect the state’s business orientation?
More than half of the publicly traded companies and two-thirds of the Fortune 500 companies are incorporated in Delaware. Disputes between shareholders and directors are litigated at trial in the Court of Chancery and claims for money damages in all other matters are litigated at trial in the Superior Court. The appeals from both courts come directly to the Delaware Supreme Court.
The Court of Chancery appeals represent about 15 percent of the cases on the Supreme Court docket but constitute most of the publicity related to Delaware Supreme Court opinions. The Internal Affairs Doctrine of the U.S. Constitution provides that disputes between shareholders and directors (and other internal matters) must be decided by the state of incorporation. Since publicly traded corporations have stockholders in every state, such litigation is frequently commenced in the state and federal courts of the other 49 states. Pursuant to the Internal Affairs Doctrine, those courts must apply Delaware law.
In an effort to accommodate other jurisdictions, the Delaware Constitution provides for certified questions to the Delaware Supreme Court from all federal courts, the highest court in each state, the Securities and Exchange Commission, and all bankruptcy courts.
Because Delaware is the home of incorporation for so many publicly traded companies, the decisions of the Delaware Supreme Court effectively represent the corporate law of the United States. This has resulted in a great deal of international interest in the corporate law of Delaware. When investors are involved with multinational corporations, the competition for capital contributions is often dependent upon the applicable principles of corporate governance. International investors are looking for the stability and predictability that is provided by the Delaware Corporate Law statute and the decisions of the Delaware Supreme Court. Although other countries do not always follow the Delaware law, they start by looking at Delaware as the default position. The justices of the Supreme Court and members of the Court of Chancery are frequently asked to speak nationally and internationally about Delaware Corporate Law.
In 2011, Ethisphere magazine selected you as one of the top 100 people influencing business ethics. I understand that you have also undertaken national and international work involving judicial ethics and professionalism.
I am the co-chair of the national Advisory Committee to the American Judicature Society’s Center for Judicial Ethics. I have also chaired the American Bar Association National Joint Committee on Lawyer Regulation.
At the Qatar International Law Forum on the Rule of Law, I chaired the panel presentation on legal professionalism. The panelists included the presidents or chairpersons of the bars and law societies of England and Wales, Hong Kong, Mauritius, Mongolia, Philippines, Russian Federation, the Arab Lawyers Union, and the Commonwealth Association.
I have been working with the chief justice of Taiwan for several years on various matters. Last year, with my prior encouragement, Taiwan substantially adopted the ABA Model Code of Judicial Conduct. Last year, I was invited to speak on judicial ethics at the Taiwan Training Academy for New Judges, and I will be returning to do that again this year.
You are now in your third decade as a justice. What do you like most about the work?
I enjoy working on subjects and topics that we do not see very often. This gives me an opportunity to do independent research and expand on my academic interest in the law.
What is one of the most interesting decisions that you have written during your 28 years on the Delaware Supreme Court?
The case involved a question of the right to trial by jury in a criminal proceeding under the Delaware Constitution. The case required research into the common law of England prior to 1776 because the Delaware Constitution from 1776 to the present provides the right to trial by jury “shall be as heretofore.” We concluded that at common law, 12 jurors were required and their verdict had to be unanimous. The U.S. Constitution does not require 12 jurors and does not require unanimity. We also concluded that the Delaware Constitution prohibited the substitution of an alternate juror after the deliberations had commenced.
I see that you served on the Federal Judicial Conference Advisory Committee on Appellate Rules by appointment of the chief justice of the United States. Probably not many of our readers know that only one state judge is appointed to that committee. Appointment is quite an honor. What sort of work did you do on that committee?
I enjoyed my work on the Appellate Rules Committee and began my service at an interesting time. When I was initially appointed by Chief Justice Rehnquist, the chair of the Committee was Samuel Alito of the Third Circuit Court of Appeals. When he was selected to be on the U.S. Supreme Court, his successor was John Roberts of the Court of Appeals for the District of Columbia. As we all know, he left the Committee to become the chief justice of the United States. In that position, he reappointed me to serve on the Appellate Rules Committee.
One of the more significant issues before the Appellate Rules Committee during my service was the debate about citing unpublished federal court opinions as a precedent. In Delaware, unpublished opinions can be cited as precedents.
Many of our readers will recognize your photo from The Bencher, the magazine of the American Inns of Court. You have served as president of the national organization. Let’s talk about the Inns.
The Inns of Court in London have been training trial lawyers, known as barristers, for many centuries. Chief Justice Warren Burger was very impressed with that system with its emphasis on mentoring. In the early 1980s, he persuaded the Federal Judicial Conference of the United States to support the creation of the American Inns of Court dedicated to promoting civility, professionalism, ethics, and legal ethics. The Federal Judicial Conference passed a resolution encouraging participation.
In 1993, I was the first state supreme court justice to become a National Trustee of the American Inns of Court. At my request, the Conference of Chief Justices passed a resolution encouraging judicial participation by state court judges. At the present time, state and federal judges in all 50 states are involved with the Inns of Court movement.
I served as the national president of the American Inns of Court from 2000 to 2004. During my tenure, the American Inns of Court strengthened their relationship with the Inns of Court in London through the Temple Bar Scholars Program, which sends distinguished recent law school graduates to London for one month to work with judges and barristers. Many of those scholars were clerks for justices of the U.S. Supreme Court. When the relationship began, judges in England did not have law clerks as we know them in the United States. However, the English judges were so impressed with the Temple Bar Scholars that they have now started employing “judicial assistants.”
Delaware established one of the first American Inns of Court. There are now seven American Inns of Court in Delaware, which gives it the highest concentration of judges and lawyers who are Inn members in the United States.
I understand you have received three significant honors related to your work with the American Inns of Court. First, you are an honorary Bencher of Lincoln’s Inn in London. The only two other Americans who share that distinction are United States Supreme Court Justices Ruth Bader Ginsburg and John Paul Stevens. Second, the most recent Delaware Inn of Court was named in your honor. Finally, you were just selected for the 2015 Justice Lewis Powell Professionalism Award, which will be presented at the United States Supreme Court.
You are correct. I am extremely honored by all of those recognitions.
I have your book Middle Temple Lawyers and the American Revolution in my chambers. So let’s segue into your work as an author. How many books have you written and what are your favorite topics?
I have written or edited eight books: Delaware’s Destiny Determined by Lewes (2013); Delaware Corporation Law: Selected Cases (published in Chinese) (2011); State Constitutional Law casebook (co-author) (West 2009); Middle Temple Lawyers and the American Revolution (co-author) (Thomson-West 2007); Appellate Practice and Procedure (Thomson-West 2005), co-authored with Robert Martineau, Kent Sinclair, and Michael Solimine; The Delaware Constitution: A Reference Guide (Greenwood Press 2002); Delaware Supreme Court: Golden Anniversary (2001), co-edited with Helen Winslow; and Delaware Constitution of 1897—The First 100 Years (1997), co-edited with Harvey B. Rubenstein.
My favorite topics relate to legal history. My most recent book, Delaware’s Destiny Determined by Lewes, is about a 1685 Privy Council proceeding in London between William Penn and Lord Baltimore that established the current boundaries of Delaware. I am currently editing a book about the Magna Carta to be published in conjunction with its 800th anniversary celebration.
How do you find time to write and carry out your judicial responsibilities?
I do my writing in the evenings and on weekends. My wife, Dr. Ilona E. Holland, who I met in high school, teaches at the Harvard Graduate School of Education. As a professor, she also does her preparations in the evenings and on weekends. As a result, we are able to do our work at the same time.
We’ll close by discussing the American Judicature Society. I understand that you are now on the Society’s Board of Directors.
As I mentioned, I am currently the co-chair of the AJS Advisory Committee for the Center for Judicial Ethics.
It appears you’ve been keeping busy. When you were appointed to the Delaware Supreme Court, you were the youngest justice ever and now, after 28 years, you are the longest-serving justice in Delaware’s history. When does your current unprecedented third 12-year term on the Delaware Supreme Court expire?
My current term expires in 2023.
Thank you, Justice Holland.