Mark J. Loewenstein

Freedom of Contract for Alternative Entities in Delaware: Myth or Reality?

In the law of alternative entities, Delaware has gained a reputation as a jurisdiction that honors freedom of contract, both by statute and by judicial decisions. Its judiciary purports to eschew judicial shenanigans, that, in other jurisdictions, provide relief for partners in partnerships and members in limited liability companies who have made regrettable bargains. But is the Delaware judiciary really true to the concept of contractual freedom? What does it do when faced with a really hard case -- will it toe the freedom of contract line?A number of Delaware cases can give one pause about the commitment of the Delaware judiciary to freedom of contract, either because the language of the opinion seems less than absolute or the result can be characterized as an implicit rejection of freedom of contract. The latter are relatively rare, but extant, while the former are abundant. In this chapter, I explore the extent to which the Delaware courts embrace the freedom of contract in light of the statutory and common law mandates requiring that they do.

The Supreme Court, Rule 10b-5 and the Federalization of Corporate Law

This Article examines Supreme Court jurisprudence since 1997 under the federal securities laws in light of the Courts earlier securities law decisions and in light of its recent decisions construing the Constitution and federal statutes as they relate to the regulation of business. These post-1977 cases strongly suggest that the much-heralded new federalism philosophy of the Supreme Court is not a factor in securities law cases or in business cases generally. Indeed, the opposite seems to be the case. In this context, new federalism cases appear to be an anomaly, with the reality being that the Court is still as nationalistic in its approach to law as it traditionally has been. Moreover, if the securities law cases discussed in this Article are any indication, the Court is becoming even more nationalistic.