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The Strine Strain
Some judges take a toll on justice.

Leo E. Strine

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Conrad Black

The elevation of Leo E. Strine, the chancellor in Delaware’s Chancery Court, which is the principal corporate-law court of the United States, to chief justice of Delaware would not normally attract much comment. Delaware is one of the smallest and least populous states and is chiefly known as a place of incorporation and for the historic presence of the du Pont family and the DuPont chemical company. (Pierre S. “Pete” du Pont IV was a recent and well-known governor.) Because Delaware became the preferred place of incorporation as the American industrial and financial boom lifted off after the Civil War, it has had great importance as a commercial jurisdiction. Leo Strine — a well-connected Democrat and former aide to a Democratic governor, current U.S. senator Thomas Carper — served 15 years on the Chancery Court, three as head (chancellor) of it, and built a reputation that extended throughout the corporate community of the United States and beyond, as a sometimes controversialoutspokenwhimsical, and decisive judge.

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None of these need be negative characteristics, but he is, in fact, a hip-shooter, who fancies himself a very blithe wit and feeds on the sycophantic laughter of counsel and their clients appearing before him. He follows cases closely, produces verdicts and judgments promptly, and clearly possesses a sharp intelligence, but he has periodically lapsed into discursive speculation on irrelevant subjects, including in one instance the religious affiliations of contending parties (without implying any bigotry, but with a distracted concern for matters unrelated to the case). He was rebuked by the court he will now head, when the state supreme court reminded judges not to use their positions in trials as “a platform from which to propagate their individual world views on issues not presented.” Strine frequently reveals himself as a fervent sports fan and engages in popular-culture references that do enliven his interventions and even decisions, as if to fortify his unprepossessing Mr. Peepers appearance.

There is not really anything wrong with any of this either, and judges could often do with a little loosening up, as they often affect undue severity in their dickies and robes and on their elevated platforms where they rule with almost unquestionable authority. In fact, complaints of this kind disguise the real problem with Strine: that, while he is intelligent and quick, he is a compulsive attention-seeker and often says injudicious things and produces bad and unjust judgments. He, like a significant number of judges, but more vividly than all but a few, is like a hyperactive version of F. Scott Fitzgerald’s description of the rich drifters of The Great Gatsby: “They were careless people. . . . They smashed up things and creatures and then retreated back into their vast carelessness . . . and let other people clean up the mess they had made.” As his spouting of contemporary pop-culture jargon portends, Strine is trendy, and combines Bacon’s famously disparaged “much-talking judge” with the contemporary description of much of the bench as “the Zeitgeist in robes.”

Readers will discern that I speak from experience. I testified in Strine’s court at length in a case where companies controlled by my associates and me were involved. He signaled clearly in the preliminary meeting with counsel that he had already determined the case against us and my counsel advised me to fold and act otherwise against our opponents. With no optimism about the outcome of the impending trial, I concluded that that would produce the same result with the additional appearance of cowardice on our part, and the case proceeded. He was perfectly courteous to me as a witness and we even exchanged a few quips and a bit of jaunty badinage, and he has subsequently referred to me quite politely, even with the affected comradeliness of a former adversary whom he bested. But he wrote a judgment that did extreme damage to the interests of tens of thousands of shareholders and was largely debunked in subsequent proceedings in various courts, including a four-month criminal trial. After Strine enthroned others in control of our companies, his protégés enriched themselves obscenely and the companies eventually went bankrupt, wiping out $2 billion of shareholders’ equity dispersed among average people in every U.S. state and Canadian province. The faction he upheld at trial — to Strine’s professed amazement, as any indication of his fallibility seems to amaze him — ultimately agreed to a $5 million (Canadian) settlement of my libel suit, by far the largest such payment in Canadian history, as part of an overall resolution, in my favor, of a complex of related lawsuits.



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