A Few Words About "The Dance"

Or, "Why You Should Not to be an Ass" (Especially in Delaware)

This incident arose out of a podcast I did with Mike Masnick, who is an awesome dude who runs an invaluable site called Techdirt. You should visit it sometime.

So, this all happened after I sat down with Mike and recorded the podcast, which recording apparently made its way around the internet. An engineer and outspoken supporter of Elon Musk shared the recording, along with some somewhat (perhaps unintentionally) unkind and (I would argue intentionally) inflammatory comments about the “logical principles” he claimed I was violating in my discussion about Elon on the podcast. He and I spoke privately to diffuse the issue, and — as two humans can usually do when they sit down together and talk face-to-face (or in some reasonable internet facsimile across the globe) — we had a nice, civil conversation offline, as they say. But meanwhile, many, many commentators tried to pile on to his public quasi-haranguing with baseless attacks on me online — in Twitter threads, and in my DMs.

I get that this is was all happening on Twitter—the place some have called a hellsite—but I had (to that point) had such an extraordinarily awesome experience there for the prior few months, I admit that my standards were very high for collegiality, and my natural tolerance for assholishness was (and is naturally) very, very low.

As I was describing the way that Delaware works to Mike on the podcast, I had a major aha! moment. What I realized — and how this is all related to the Delaware Court of Chancery requires a little background: mainly, that Delaware is somewhat preternaturally, um, kinda stuffy. I've likely described the atmosphere in the courts there before, admittedly, as a bit "uptight". Things are rigid (and sometimes, even a little slow to move into the current moment). Decorum is a paramount consideration in all things. The atmosphere is conservative in the traditional (and colloquial, though thankfully, more and more, not necessarily political) sense.

On a personal level, I've always been a bleeding-edge kind of person with both technological and social progress, so sometimes Delaware vibes felt restrictive—too uppity, perhaps. Too demanding of conformity in ways that I struggled with on many levels, as a human being, if not as a lawyer.

But in watching the conversation in my mentions devolve over the several days after this incident — to a lot of messy, less-than-compassionate, snippy fighting amongst various in-groups, I realized why this whole vibe is actually one of Delaware's greatest virtues.

Look, I still believe in pushing boundaries. I still believe strongly in not accepting the status quo on many levels. I still believe we should not be confined to tradition for tradition's sake. But if I look at the things that Delaware prizes in its bar: politeness, collegiality, even kindness and mutual respect — and I see clearly now why that has to be the baseline, even if it sometimes feels over the top and repressive to a wild child spirit like my own. Because when passions flare, it matters where your baseline starts from.

And in high-stakes, fast-paced corporate litigation, with tens of billion$ in money and a lot of power at stake, tempers and passions are going to flare. It's unavoidable. And if you begin that journey up the Scoville ladder at jalapeño levels of spice, you'll soon be calling for each other's heads in scotch bonnet-land.

So, you have to start from a vanilla, dare-I-say-sometimes-boring-af posture of courtesy and politesse, which (especially in peace time) feels like ... a little too much convention. But I get it now. (I'm sure I'm just slow on the uptake here.) I really, truly get it.

And I've always loved Delaware and been honored to be a member of this tiny little bar for many reasons, but that love has been—at times—almost in spite of what I have seen as a nearly-oppressive amount of conformity required for participation in the Delaware regime. But now I love it newly, for what it is, because it really is what works.

It's a place where you can safely have battles over billions of dollars and massive stakes for huge swathes of the corporate landscape (which, by the way, is all eventually constituted by human beings) and still maintain civility — for the most part, even when things get super spicy.

Because I have seen over these past few months just a small reflection of what happens when you don't start from that baseline, or at least try to constantly be recalibrating toward common courtesy and principles of kindness and compassion. When you don't have incredibly high demands on people to be good and decent and kind and considerate to one another. When you don't start with that as the centerpiece.

It becomes a sh*tshow, and it becomes a sh*tshow fast. And I'm all about pushing boundaries. I'm even all about being the shiptoasting alterego of our uptight and sometimes finicky-af legal publication. I love memes and jokes and gifs, and being silly and serious — and I think we can be wide-ranging humans with multi-dimensional personas.

Maybe some people would say that I’m mean to billionaires. Query: at a metaphysical can one be mean to a billionaire who has nearly infinite power and resources and money? Can one be mean by tweeting accountability at them? By poking fun at them when they do ignorant things? By calling out their stupidity when they put it on public display? By standing up for people they hurt when they unthinkingly bull-in-a-china-shop their way through major decisions that have wide-ranging impacts on huge swathes of powerless people? I think this is a very open question, ngl.

Look, I see where things go when we indulge the worst of our nature. I see it in myself. I see how easy it is to ratchet up the debate to the point where decorum knows no place. “Moving the Overton window” is a real thing. We are an immensely adaptive species. The cell phone or other new techity gadget that’s a novelty one day is our irreplaceable appendage mere weeks later. It doesn’t take much to lose your moorings without some grounding mechanism to constantly be bringing you back to the reminder that there’s a better part of our nature, one that is a bit more staid. A bit slower. A bit more reflective. Longer form, less sound-bitey. You know, all the reasons I used so many words in the opening to this piece.

As to all the particulars of how to deliver serious, intelligent accountability in critical dialogue with humor and wit and also compassion and kindness and still not take ourselves too seriously … that’s an intricate dance. We can quibble about the boundaries and have discussions about the edge cases. And we should. I will probably try and fail and try again to meet my own standards. But I will keep fighting for what's right, and for what's better than what already exists. And I believe it’s better to have an authority that errs on the side of caution and temperance, without resorting to a reductionist sort of puritanism. And in this way, we all got an absolute masterclass last year from Chancellor McCormick as we watched her publicly lead the Court with such grace and intellect and wit in this kind of masterful dance, and with such aplomb. In this, with Her Honor at the helm, I know as Delaware leads the way, we all can follow.