Some Delaware Chancery Court opinions will be remembered for shaping corporate law. Others for boldly rejecting a billionaire’s business plans. Then there’s the octopus one.
“Scientists have found that the octopus is bizarrely adept at navigating mazes,” Vice Chancellor Sam Glasscock III mused in a contract dispute over house construction. He thought less highly of the complaint, writing, “the octopus has nothing on the contortions exhibited in Plaintiffs’ attempt to establish jurisdiction here.”
The August 2023 opinion is a classic of what the court’s chief judge calls “Glasscockian prose,” a perspective she will miss when Glasscock retires in January. Nationally recognized for his corporate law decisions, Glasscock also is well-regarded “for the effortless way in which he makes complicated issues accessible to the uninformed reader, and the obvious delight he finds in the craft of decision writing,” Chancellor Kathaleen St. Jude McCormick told Bloomberg Law.
McCormick often drops pop culture and Shakespeare references into opinions, and Vice Chancellor J. Travis Laster is fond of the classics, but Glasscock’s allusions vary wildly. His opinions contemplate rodeo bull-riding, World War I, mythology, whaling, and the task of taming “legal shrubbery” in the “limited garden of equity.”
Yes, it’s a little self-indulgent, but “they don’t pay me enough not to have fun writing my opinions,” Glasscock, 66, said during an Aug. 13 interview at his chambers in Georgetown, Del. Atop his desk: a large silver octopus, gifted by his law clerks.
“I just enjoy the unexpected parallels and relationships of different things,” he said.
But Glasscock’s penchant for wordplay shouldn’t distract from his contributions from the bench of America’s premier business court, said Charles Elson, founding director of the Weinberg Center for Corporate Governance at the University of Delaware.
Elson points to a 2020 decision allowing investors to proceed with claims that AmerisourceBergen Corp. directors knowingly ignored a subsidiary’s scheme to sell unsterile cancer drugs pooled from an overflow of pre-filled syringes as an example of Glasscock’s careful, balanced opinions.
“He doesn’t push the law to its extreme,” Elson said. “He takes the law and he applies it in a smart and fair way, with a deep understanding of the point of the law.”
Glasscock, first appointed to the court in 2011, is the second-longest serving judge on the court, which hears cases without juries. Previously, he was a Master in Chancery, now called a Magistrate in Chancery, for about 12 years; these judges oversee adult guardianships, books-and-records lawsuits, property and trust disputes, and other corporate claims. He received a bachelor’s degree in history and master’s degree in marine policy from the University of Delaware, and a law degree from Duke University.
The marine policy degree was a “detour” but it’s proven useful in real estate complaints as rising sea levels alter Delaware’s coast and shift property lines, Glasscock said.
Corporate cases have shifted over time, too, with the court increasingly considering how contractual obligations collide with traditional questions of equity, he said. Questions about director independence also have evolved as some industries, such as the tech sector, become dominated by smaller groups of leaders, he said.
Many tech leaders know each other socially, but it’s their interlaced business dealings that raise concern, he said.
“If you draw the line and say, ‘Well, because you’ve been in the tech field, you can’t be an independent board member,’ that’s going to prevent a lot of good people from being board members, or it’s going to cause transactions to be too heavily scrutinized. That causes a loss of value,” he said. “On the other hand, you can’t say it doesn’t matter, whatever degree of friendship there is, because that could lead to really conflicted transactions not being reviewed, and that could result in a loss of value.”
His down-to-earth approach ensures every litigant receives the same treatment, said a former clerk, Jerrod Lukacs, general counsel at Yancey Bros. Co.
“Whether it’s a property owner in Sussex County or JPMorgan, he treats everybody with just that same level of courtesy and respect, and applies that same level of diligence to everything,” Lukacs said.
One thing that hasn’t changed over his time on the bench: what he jokingly calls his “judicial laziness principle” of deciding a case “as narrowly and simply as I can,” an approach he says helps avoid unintended legal consequences.
Don’t mistake that for actual laziness. McCormick praised Glasscock’s work ethic, saying, “He always insists on taking on more than his fair share of case work. And he always manages to lighten the mood while still making clear that he takes the job quite seriously.”
Explaining how Chancery Court works to Widener University Delaware Law School students earlier this year, Glasscock encouraged them to read “Bleak House,” Charles Dickens’ sharp critique of England’s Court of Chancery. The novel revolves around an interminable lawsuit, and Glasscock oversaw his own version—an environmental cleanup case that took 26 years to resolve, before he approved a stipulation of dismissal in 2015.
That same year, dismissing claims that Walt Disney Co. was “holding back the flying car,” Glasscock included a color image of the cover of a children’s book version of “The Absent-Minded Professor.” McCormick’s personal favorite is a 2014 opinion in which Glasscock interspersed his analysis of a sewer line dispute with lyrics from the song “Danny Boy”—“the pipes, the pipes are calling.”
“Consider the persimmon,” Glasscock wrote in a 2014 order finding a trust dispute wasn’t yet ripe for adjudication. “As with fruit, so with litigation.”
Magistrate Bonnie David, who clerked for Glasscock, said it’s obvious when one of his opinions delights the close-knit Chancery community. “People knew I was clerking for him, and my phone would just blow up,” she said.
“I think everyone understands that it’s like he’s saying, ‘We’re all in this together, let’s go on this adventure together,’” said Lukacs, who has taught a short course on corporate law with Glasscock at the University of Georgia for the past eight years.
Glasscock’s own favorite case involved a property dispute he decided in 2017 for the state against a developer. The crucial evidence: daffodils blooming on the site of a long-forgotten homestead. “If you like real property, and you like history, like I do, that was a great case,” he said.
He doesn’t have any firm retirement plans come next year, aside from teaching and dabbling in his wide-ranging interests. A current fixation: the Buddhist concept of “bardo,” a transitional state.
“You’re in one plane of existence and you’re going to another, and I’m entering that,” he said. “It’s going to be kind of exciting to see how that plays out.”
