“Most other major industrialized countries regulate their large businesses at the national level,” he wrote, “and we do too when it comes to labor law and securities law. But the rules of corporate governance—to whom managers owe fiduciary duties, the make-up of corporate boards (are employees represented?)—are determined by state law. And Delaware has won the competition to be the place where most corporations decide to incorporate.”

Corporate lawyers are quite frank that the management-friendly law of the state is a big draw, but so too is the reputation of the state’s courts for fairness, honesty, and efficiency. Not everyone in Delaware, of course, is enamored of the system. Carney flows out of the efforts of two local lawyers who have devoted considerable time to changing it.

To understand the dispute, start in 1897, when Delaware drafted a new constitution. Among other things, the delegates were concerned about the partisan nature of the state’s judiciary, which at that time was appointed by the governor without either legislative approval or popular election.

To address this issue, the delegates provided that, of the state’s top courts, no more than a bare majority—that is, half the members on a court with an even number of judges, and one more than half on a court with an odd number—could be from any one political party. At that time, Delaware had no state Supreme Court; instead, the Court of Chancery heard cases involving contract disputes and wills and trusts, and the Superior Court heard criminal and civil cases awarding money judgment. (Appeals were heard by ad hoc panels made up of the chancellor—head of the Court of Chancery—and two judges of the Superior Court.)

This provision remained in place from 1897 until 1951. When it was written, New Jersey’s state courts were the nation’s leading venue for corporate law. But during the Progressive era, New Jersey Governor Woodrow Wilson’s reforms spurred a corporate migration south to the more business-friendly courts of the Blue Hen State.

The 1897 constitution, however, had not created a state Supreme Court. In 1951, the legislature turned to that omission. To placate partisan opponents of the new court, the legislature applied the “bare majority” rule—but also added that “three of the five Justices of the Supreme Court … shall be of one major political party, and two … shall be of the other major political party.” This is called the “major party” requirement; it was also extended to the Superior Court and the Court of Chancery. The original bare-majority rules remain in effect for all statewide law courts, including those without any major-party requirement.

Read: America’s red and blue judges

Then, in 1992, a young University of Pennsylvania law graduate named Joel Friedlander went to a meeting for new admittees to the Delaware bar. “I was told we should be proud because we have the greatest judiciary in the world,” he told me in an interview. The reason, the speaker said, was the major-party requirement. This meant the courts were always almost evenly split between Republicans and Democrats. “I thought, That’s an odd thing to say—because it’s clearly unconstitutional.”