SUBSTANCE AND PROCESS IN CORPORATE LAW: THEORY AND HISTORY

Delaware corporate law has shifted from evaluating the substance of transactions to scrutinizing the processes that produce them. Sepe and Bratton argue this move reflects a deeper structural fact: courts lack a workable theory of value and are thus ill-equipped to judge transactional merits directly. By contrast, they are epistemically familiar with legal processes, making process review both practical and reliable. Drawing on economic and epistemic analysis, as well as a review of Delaware precedent,  they show why process has become the centerpiece of fiduciary law.