Constitutional Equity and the Innovative Tradition
CONSTITUTIONAL EQUITY AND THE INNOVATIVE TRADITION WILLIAM T. QUILLEN* I INTRODUCTION Lazard Freres & Company ("Lazard") and Dillon Read & Company, Inc. ("Dillon"), the investment bank advisers to the special committee of the board of directors of RJR Nabisco, Inc. ("RJR"), 1 moved to intervene in the recent Nabisco shareholder litigation in the Delaware Court of Chancery.2 The motion presented the court with the stuff of lawyers-personal jurisdiction, subject matter jurisdiction, mandatory counterclaims, mandatory and permissive intervention, declaratory judgments, collateral estoppel-in short, a feast for those of our craft who are determined that the elimination of common law pleading and antiquated bills in equity shall not spoil all the fun.3 The motion to intervene was presented to Chancellor William T. Allen, Chief Judge of the Delaware Court of Chancery. What is striking about the portion of the opinion dealing with subject matter jurisdiction is not its example of a now-rare breed of legal issues (that is, is the declaratory judgment counterclaim, being a strictly legal matter designed to negate liability for negligence, cognizable in a separate court of equity?), nor even the overall issues of the modern uniqueness of the Delaware bifurcated Copyright © 1993 by William T. Quillen * Delaware Secretary of State; Distinguished Visiting Professor of Law, Widener University School of Law, Wilmington, Delaware; former Chancellor, Delaware Court of Chancery; retired Justice, Delaware Supreme Court. This article is largely taken from a longer work. See William T. Quillen, A Historical Sketch of the Equity Jurisdiction in Delaware (1982) (unpublished LL.M. thesis, University of Virginia) [hereinafter Quillen, Historical Sketch].
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