Yesterday's post highlighted Professor Stephen Bainbridge's recently posted article, DExit Drivers: Is Delaware's Dominance Threatened? His article analyzes the reasons that companies give for leaving Delaware for other states, including Nevada. One of these drivers is the perceived indeterminacy of Delaware law:

Several of the asserted motivations speak to the relative determinacy of the new state’s law versus that of Delaware. Fourteen companies, all of whom were moving to Nevada, cited Nevada’s statute-focused law, which they claimed is not dependent on judicial decision making.

Criticism of the indeterminancy of courts of chancery is not new. In fact, it dates back until at least the time of Oliver Cromwell's rule as Lord Protector of England. As John Selden famously observed:

Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one, as if they should make his foot the standard for the measure we call a Chancellor’s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot; ‘tis the same thing in the Chancellor’s conscience.*

Cromwell did not abolish Chancery, but he did famously issue the so-called Chancery Ordinance in 1654, which has been described as "aimed with more earnestness than skill at rapidity, simplicity, and cheapness". R. Robinson, Anticipations under the Commonwealth of Changes in the Law. Printed as No. 14 in v. 1 of Select Essays in Anglo-American Legal History (Boston, 1907), p. 487 (quoted in Brown, Robert C. (1931), The Law of England During the Period Commonwealth, Indiana Law Journal: Vol. 6: Iss. 6, Article 1).

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The Table-Talk of John Selden, p. 49.