2014 • Volume 39 • Number 2

Delaware Invites Certified Questions from Bankruptcy Courts

Verity Winship

When a thorny new question of Delaware corporate law arises in bankruptcy proceedings, bankruptcy courts must either decide the question or find some way to ask for Delaware’s expertise. Recent amendments to the Delaware constitution and court rules provide a mechanism for asking and answering such questions. The Delaware Supreme Court can now respond to state-law questions from bankruptcy courts throughout the United States. This article puts this innovation in the context of bankruptcy certification nationwide and the state’s experience with certification. It identifies significant obstacles to wide use of this procedure and proposes ways to make certification an effective tool for resolving questions that arise at the intersection of state corporate law and federal bankruptcy proceedings.